Ubaidullah Radiowala v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-3480
_____________
UBAIDULLAH ABDULRASHID RADIOWALA,
a/k/a Obed Radiowala, a/k/a Obaid Radiowalla,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision of the
United States Department of Justice
Board of Immigration Appeals
(A093-454-642)
Immigration Judge: Virma A. Wright
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 27, 2019
Before: CHAGARES, GREENAWAY, JR. and
GREENBERG, Circuit Judges.
(Filed: July 22, 2019)
______________
OPINION
_______________
Melvin R. Solomon, Esq.
Parsekian & Solomon
140 Main Street
Hackensack, NJ 07601
Counsel for Petitioner
Rachel L. Browning, Esq.
Jessica E. Burns, Esq.
Maarja T. Luhtaru, Esq.
Joesph H. Hunt, Esq.
Keith I. McManus, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
GREENAWAY, JR., Circuit Judge.
We are a nation of immigrants, and immigrant stories.
And Ubaidullah Abdulrashid Radiowala’s story has the
makings of a compelling one. He entered the United States on
a visitor’s visa in April of 1998, with his wife and two children.
He testified that he started out supporting a family of four on
$300 a week, while living in a residence with two other
families. His efforts over the course of the next two decades
were met with relative success: he developed a lucrative
2
business that enabled him to remain the sole provider for his
mother in India, his wife and two children who emigrated with
him, and the two children he has had since, both of whom are
United States citizens. For this group, he bears the entire
financial burden on everything: from all household expenses
to the rent and college tuition of three of his children. His
fourth child is currently in high school.
He was arrested during a traffic stop in 2017, and
subsequently charged as removable. The Immigration Judge
(“IJ”) presiding over his case denied his application for relief,
determining that he was ineligible for cancellation of removal,
asylum, withholding of removal, and relief under Article III of
the Convention Against Torture (“CAT”). The Board of
Immigration Appeals (“the Board”) affirmed. Radiowala filed
this petition for review, primarily asking that we consider his
relatively non-existent criminal history and his role as the sole
provider for his family. However, the principal avenue for
doing so—cancellation of removal—is a ground on which the
Board’s decision is largely unreviewable. None of the other
avenues fit his case—Radiowala became ineligible for asylum
over 19 years ago, the proposed social groups of which he is a
part are not legally cognizable, and substantial evidence
supports the Board’s determination that he is unlikely to be
tortured if returned to India.
We must therefore dismiss Radiowala’s petition in part,
and deny it in part.
I.
Radiowala entered the United States over 20 years ago,
in order to escape the reach of a notable Indian gangster by the
name of Dawood Ibrahim. Radiowala was arrested during a
3
vehicle stop in New Jersey, on September 20, 2017.1 Pursuant
to 8 U.S.C. § 1182(a)(6)(A)(i), the Department of Homeland
Security charged him as removable because he was present in
the United States without having been admitted or paroled.
Radiowala conceded the charge but applied for cancellation of
removal under 8 U.S.C. § 1229b(b)(1), asylum under 8 U.S.C.
§ 1158(b)(1)(A), withholding of removal under 8 U.S.C. §
1It bears mention that, in August of 2015, Interpol
issued a Red Notice for Radiowala’s arrest. The Notice alleged
that, in August of the previous year, he conspired with others
in India to extort a Bollywood movie producer. The Board did
not at all premise its determinations on this Notice, however,
as it was not required to do so. Indeed, Interpol makes clear
that it “cannot compel the law enforcement authorities in any
country to arrest someone who is subject of a Red Notice,” as
“[e]ach member country decides for itself what legal value to
give a Red Notice . . .” Interpol, Red Notices,
https://www.interpol.int/INTERPOL-expertise/Notices/Red-
Notices (last visited July 1, 2019). To this effect, Congress has
not seen fit to prescribe that an Interpol Red Notice alone is an
independent basis for removal. Nor has it endeavored to make
it an express consideration for any of the reliefs sought by
Radiowala. Relatedly, the Department of Justice’s view is that,
by itself, a Red Notice is not a sufficient basis for arresting
someone, for its issuance often falls short of what the Fourth
Amendment requires. See Department of Justice, Interpol
Frequently Asked Questions, https://www.justice.gov/interpol-
washington/frequently-asked-questions#thirteen (last updated
April 29, 2019). We thus proceed as the Board did and give no
weight to the existence and content of the Red Notice in this
case.
4
1231(b)(3)(A), and protection under the CAT, 8 C.F.R. §§
1208.16–18. In support of his application, he provided
testimony and documentation to the effect of the following:
In India, Radiowala was a rickshaw driver2 who
doubled as a paid confidential informant for a police officer.
He was enlisted by an officer by the name of Vijay Salesker,
and primarily sought information about a gang known as “the
Arun Gawli Gang.” A.R. 252. From 1994 to 1998, Radiowala
would obtain information by way of various gang members
who took his rickshaw and would relay this information to
Salesker. The content varied, ranging from extortion activities
to information regarding a potential homicide. The
compensation varied accordingly—approximately 2,000 to
6,000 rupees based on the value of the information Radiowala
provided.
In 1996, Radiowala began serving as the driver for a
gangster by the name of Hussain Vastra. He continued his
informant work in this capacity. Sometime later, it was
discovered that Vastra was also an informant, both by
Radiowala and by a smuggler by the name of Dawood Ibrahim.
This discovery did not bode well for Radiowala: he was soon
discovered to also be an informant and faced death threats from
those working for Ibrahim, including gang members and police
officers. Notably, those individuals “blame[d] him for the
information that was “pass[ed] on” by Vastra. A.R. 161–62
(testifying that “they put everything on me”). Radiowala
2
In this context, a rickshaw is a three-wheeled car that
is operated in a manner similar to a taxi.
5
turned to officer Salesker, who in turn assisted him in obtaining
a passport under an alias.
By way of a visitor visa, Radiowala arrived in the
United States in April of 1998, along with his wife and two
children. They have remained here since. He initially had to
support his family on $300 a week while living in a residence
with two other families. He went on to own a successful
wholesale distribution company for beauty products and over-
the-counter drugs. His tax filings indicate that this company’s
gross profits range from $120,000 to $225,000 a year. He also
had two other children, both of whom are United States
citizens. Three of his children are in college and the fourth
attends high school.
Through his business, Radiowala has been the sole
provider for his entire family. He lists his wife and all of their
children as employees and pools together their income from
the business into an account that pays for all household bills,
tuitions, and other expenses, such as rent and car payments. In
the words of Dr. Mark Silver—the New York state licensed
clinical social worker who interviewed Radiowala’s family on
numerous occasions—Radiowala is “the primary caregiver in
[his] family. . . . He’s really the main source of financial
support, and without [this] support, [there is] not only concern
about basic necessities, rent and so on, but also continuing with
payments for tuition for college, extracurricular needs, and so
on.” A.R. 198–99.
Radiowala insisted that this would all come to an end if
he was removed to India. He testified that his business would
come to ruin and, with it, the only source of financial support
for his family—notably, his two immigrant children who are
Deferred-Action-for-Childhood-Arrival (“DACA”) recipients
6
would no longer have their tuition and rent paid for, the same
is true of his college-age-United States-citizen daughter, and
his high school-age child, who would not be able to receive the
prescription ear drops that she needs. In addition, he testified
that those working for Ibrahim would be able to find and kill
him.
The Immigration Judge (“IJ”) found this testimony to
be credible, but nonetheless denied Radiowala’s plea for relief
on all scores. The Board affirmed, ultimately adopting the IJ’s
reasoning. Radiowala petitioned this Court to review the
Board’s decision. He also asked that we maintain the
temporary stay of his removal order pending the resolution of
his petition on the merits. We denied this request, so he has
since been removed to India.
II.
We nonetheless have jurisdiction to review the Board’s
decision under 8 U.S.C. § 1252(a). Mendoza-Ordonez v. Att’y
Gen. of U.S., 869 F.3d 164, 168 (3d Cir. 2017). Our review is
limited to the reasons provided by the Board. See Orabi v.
Att’y Gen. of U.S., 738 F.3d 535, 539 (3d Cir. 2014) (citing
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196
(1947) and Li v. Att’y Gen. of U.S., 400 F.3d 157, 163 (3d Cir.
2005)). But we may also consider the IJ’s opinion where the
Board adopted or deferred to the IJ’s reasoning. Mendoza-
Ordonez, 869 F.3d at 169 (citing Nelson v. Att’y Gen. of U.S.,
685 F.3d 318, 321 (3d Cir. 2012)). We review constitutional
issues and questions of law under a de novo standard and
regard the Board’s factual determinations as “conclusive
unless any reasonable adjudicator would be compelled to
conclude the contrary.” Id. (citations and internal quotation
marks omitted). This “extraordinarily deferential” standard
7
requires that we uphold the Board’s findings so long as they
are supported by “reasonable, substantial, and probative
evidence on the record considered as a whole.” Garcia v. Att’y
Gen. of U.S., 665 F.3d 496, 502 (3d Cir. 2011), as
amended (Jan. 13, 2012) (internal quotation marks and
citations omitted).
III.
The facts of Radiowala’s case render it principally one
for cancellation of removal. Yet the Board denied him this
relief, and its determination is one that we do not have the
power to review. The other forms of relief he seeks do not fit
his circumstance—he became ineligible for asylum over 19
years ago, the proposed social groups of which he is a part are
not legally cognizable, and substantial evidence supports the
Board’s predictive finding that he is unlikely to be tortured if
returned to India. We must therefore dismiss his petition as to
his cancellation of removal claim and deny it in all other
respects.
A. Asylum
As we alluded, a petitioner in Radiowala’s position
would typically look to cancellation of removal as the avenue
for relief. This is because this avenue takes into account what
a petitioner has done with her time in the United States.
Indeed, it requires that a petitioner establish (1) continuous
physical presence in the United States for the ten years
preceding the application, (2) good moral character, (3) that
she has not been convicted of certain criminal offenses, and (4)
that her removal would cause “exceptional and extremely
unusual hardship to [her] spouse, parent, or child, who is a
United States citizen or [a noncitizen] lawfully admitted for
8
permanent residence.” See 8 U.S.C. § 1229b(b). In essence, it
is an expression that, although you entered our nation without
our permission (or overstayed your welcome), we will allow
you to remain if you have behaved and if removing you after
so much time has passed would result in a particular kind of
hardship.
Unfortunately for Radiowala, however, the IJ and Board
foreclosed this avenue when they determined that, although he
met the first three requirements, he could not show that the
requisite hardship would result from his removal. In the
Board’s view, despite what Radiowala has accomplished and
how much his family currently depends on him, the hardship
that his qualifying relatives—his two citizen children—would
suffer if he were to be removed would not be substantially
beyond what typically results from removal. A.R. 3; see also
In re Monreal-Aguinaga, 23 I. & N. 56, 69 (BIA 2001)
(defining “exceptional and extremely unusual hardship” as
harm to qualifying relatives that is “substantially beyond that
which would ordinarily be expected to result from the alien’s
deportation”) (quoting H.R. Conf. Rep. No. 104-828).
This decision cannot be reviewed by a court unless the
issue for review is whether the Board or IJ applied the
appropriate standard. See Patel v. Att’y Gen. of U.S., 619 F.3d
230, 233 (3d Cir. 2010) (“We lack jurisdiction to review
discretionary decisions made pursuant to 8 U.S.C. § 1229b,
including ‘exceptional and extremely unusual hardship’
determinations . . . [except where the issue is] whether the IJ
used the correct legal standard to reach this determination.”).
Radiowala has made no argument that the Board used the
incorrect standard.
9
We are therefore precluded from reviewing the Board’s
determination on this issue.
B. Asylum, Withholding of Removal, and Relief under
the CAT
Radiowalla turns to asylum, withholding of removal,
and relief under the CAT as alternatives. But none fit his case.
1.
Radiowala’s asylum3 and withholding claims are both
premised on the fear that, if returned to India, he would be
persecuted on account of his membership in two particular
social groups. The first is comprised of “former criminal
informants who testify against criminal gangsters, mafia,
criminal delinquents, and members of organized crime,” and
the second consists of “persons targeted precisely for their
willingness to speak the truth at great risk to themselves.” A.R.
3
An asylum petitioner must apply for the relief within
one year of her entering the United States, regardless of
whether she was admitted or paroled. See 8 U.S.C. §
1158(a)(2)(B). At the time of his application, it had been nearly
20 years since Radiowala entered the United States, so the
Board and IJ concluded that he is not eligible for asylum.
Radiowala informs this Court that he “is not seeking review of
the time-barred asylum filing,” Pet’r. Op. Br. n.1, but he
references the relief in other parts of his brief, id. at 13, 17–23.
The asylum and withholding analyses are the same in this
context, so even if we set aside the Board’s untimeliness
determination—which we do not—Radiowala’s asylum claim
fails for the reasons that follow.
10
5–6, 59. Though asylum and withholding are two separate
forms of relief with different standards of proof, a petitioner
who bases his or her claim for either on membership in a
particular social group must, inter alia, establish that the
particular social group in question is legally cognizable.
S.E.R.L. v. Att’y Gen. of U.S., 894 F.3d 535, 544 (3d Cir. 2018)
(citing Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)). The
Board adopted the IJ’s ruling that Radiowala is not a member
of a group that meets this requirement. There is substantial
evidence in the record to support this finding.
To be legally cognizable, a proposed social group must
be (1) composed of members who share a common, immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question. See S.E.R.L., 894 F.3d
at 540. A characteristic is immutable if it is one that a person
cannot change or should not be required to change as a matter
of conscience to avoid persecution. Id. at 543. A group is
particularized if it is discrete, has definable boundaries—as
opposed to being overbroad, diffuse, or subjective—and its
definition provides a benchmark for determining who falls
within it. Id. at 547. And social distinction requires “evidence
that the society in question recognizes a proposed group as
distinct.” Id. at 551. The latter two—particularity and social
distinction—differ in that the former speaks to “‘the outer
limits[] of a group’s boundaries,’” and the latter focuses on
“‘whether the people of a given society would perceive a
proposed group as sufficiently separate or distinct.’” Id. at 548
(citations omitted).
As to Radiowala’s first proposed group, we have
previously held that a group consisting of “witnesses who have
the ‘shared past experience’ of assisting law enforcement
against violent gangs that threaten communities in Guatemala”
11
is legally cognizable. Garcia, 665 F.3d at 504. We reasoned
that the shared experience of having testified against violent
gang members is a common, immutable characteristic that the
group members could not change “because it is based on past
conduct that cannot be undone,” and, “[t]o the extent that
members . . . [could] recant their testimony, they should not be
required to do so.” Id. (internal quotation marks omitted). In
addition, the group is particularized: a group essentially
comprised of those who have testified in court has definable
boundaries and is equipped with a benchmark for determining
who falls within it. Equally, the act of testifying also lends
itself to societal recognition—generally, speaking in open
court means that all are readily aware of the group and its
members, not just those that are being provided information or
potential persecutors who are forever seeking to ferret out
informants. See id. n.5 (distinguishing this group from
confidential informants on the basis that their aid to the law
enforcement is public, and their identity is readily known to
their persecutors).
The Board concluded that such a group is legally
cognizable. A.R. 5 (“Witnesses who have the shared past
experience of testifying in prosecution against violent gangs
can constitute a particular social group.”) (citing Garcia, 665
F.3d at 504). But the record is devoid of evidence that
Radiowala actually testified against anyone. As a result, the
Board and IJ concluded that Radiowala had not demonstrated
that he was a part of this group.
We agree—all Radiowala has put forth is that he was a
paid confidential informant that relayed information to one
particular officer. To this effect, the group of which he is a
member is simply one of paid confidential informants in India.
It indeed has some similarities to the one he proposed. The
12
characteristic of having provided information to aid law
enforcement is immutable in the sense that it also derives from
past conduct and thus cannot be changed, nor should one be
required to change it. There might also be a basis for
concluding that the group is sufficiently particularized: the
record is unclear, but regularly receiving payment from
government officials theoretically offers a basis for identifying
group members and a definable boundary.
The potential for similarity stops there, however, as
nothing in the record indicates that the community in India
perceives paid confidential informants as a distinct group in
society. See S.E.R.L., 894 F.3d at 548. Radiowala’s sole
argument to the contrary is that “‘society’s perception’ like that
of Officer Salesker is what counts.” Pet’r. Op. Br. 20.
However, though relevant, by itself, the perception of the
particular officer to whom an informant provides information
does not demonstrate that society recognizes a group
comprised of those who do so. Rather, the inquiry is “whether
those with a common immutable characteristic are set apart, or
distinct, from other persons within the society in some
significant way.” Matter of M-E-V-G-, 26 I. & N. Dec. 227,
238 (BIA 2014) (emphasis added). By definition, paid
confidential informants provide aid to law enforcement
privately. So, without more, a group comprised of them is
indistinguishable from those in the general public whom a
criminal gang might otherwise suspect as having informed on
it. See In Re C-A-, 23 I. & N. Dec. 951, 960–61 (BIA 2006).
That, like Radiowala, the group members’ informant status
may have, by a means unlike and other than testifying publicly,
13
been disclosed to alleged persecutors does not change the
analysis.4
We conclude that this is not a legally cognizable group.
In reaching this conclusion, the distinction we draw between
this group and one comprised of informants who have publicly
testified is consistent with that drawn by the Board and every
other circuit to have spoken on the issue. See, e.g., id. at 960(explaining that a proposed group of confidential informants
lacks social visibility because “the very nature of the conduct
4
Indeed, the persecution faced by informants whose
status is assuredly disclosed is markedly different from those
who, like many in the public, are merely perceived as, or
suspected of, being informants. For example, in Garcia, the
persecution one of the petitioners faced was distinctly severe
when the persecutors were assured that she was an informant
than when they merely suspected it. Compare 665 F.3d. at 500(receiving a telephone call indicating “concern[] that [she]
would report . . . to the police”) with id. at 500–01 (receiving
threatening phone calls despite “around the clock” protection
“by armed security teams” and being “moved from hotel to
hotel as many as twelve times in three months,” one of which
was from “an unknown individual who said that [the petitioner]
was being watched during her first court appearance and that if
she testified, she and [her sister] would be killed. The caller
also mentioned that [an affiliate] knew where her mother and
[her sister] were living in the United States”). Thus, although
Garcia’s persecutors suspected her of being an informant long
before she testified in open court, we relied on her act of
publicly testifying in distinguishing her case from those
involving proposed social groups of confidential informants.
See id. at 504 n.5.
14
at issue is such that it is generally out of the public view”);5
Ngugi v. Lynch, 826 F.3d 1132, 1138 (8th Cir. 2016) (rejecting
a proposed social group of “witnesses to the criminal
activities” of a group in part because there was no evidence that
the petitioner “ever served as a witness against the [group] in
any public proceedings”); Henriquez-Rivas v. Holder, 707
F.3d 1081, 1093 (9th Cir. 2013) (distinguishing prior cases in
which a gang-related proposed social group was rejected from
those involving “the very specific situation of testifying against
gang members in court” as “for those who have publicly
testified against gang members, their ‘social [distinction] is
apparent’”); Crespin-Valladares v. Holder, 632 F.3d 117, 125
(4th Cir. 2011) (concluding that a group comprised of family
members of those who testified against MS–13 was a
cognizable particular social group); Castillo-Arias v. Att’y
Gen. of U.S.., 446 F.3d 1190, 1197–98 (11th Cir. 2006)
(rejecting a proposed group of noncriminal informants working
against the Cali drug cartel in part because the very nature of
their activity prevents them from being recognized by society
at large).
Radiowala’s second proposed group is a non-starter. A
group of persons “targeted” for their “willingness to speak the
truth at great risk to themselves” is defined by the harm or
potential harm posed to its members. In setting forth the
particularity and social distinction requirements, the Board
5
As the Board clarified in Matter of M-E-V-G-, the
social distinction requirement does not mean “[l]iteral or
‘ocular’ visibility”; rather, the focus is “on the extent to which
the group is understood to exist as a recognized component of
the society in question.” 26 I. & N. Dec. 227, 238–39 (BIA
2014).
15
reaffirmed its determination that “persecutory conduct alone
cannot define a group.” S.E.R.L., 894 F.3d at 549 (internal
quotation marks omitted) (quoting Matter of W-G-R-, 26 I. &
N. Dec. 208, 215 (BIA 2014)). We accepted the Board’s
chosen course in S.E.R.L. As a consequence, a group so
defined is not legally cognizable.
2.
Radiowala’s petition for relief under the CAT also fails.
To warrant CAT relief, a petitioner “bears the burden of
establishing ‘that it is more likely than not that . . . she would
be tortured if removed to the proposed country of removal.’”
Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d Cir. 2002)
(quoting 8 C.F.R. § 208.16(c)(2)). Torture is defined as the
intentional infliction of severe pain and suffering, whether
physical or mental, for illicit purposes, and “by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Id.There is no subjective component to the above assessment. Id.A petitioner is required to meet her burden by objective
evidence alone. Id.The IJ found that Radiowala did not meet his burden. It
found no evidence that anyone has been searching for
Radiowala since he left India over 20 years ago, and that his
pursuer (Dawood Ibrahim) is presently hiding in Pakistan. In
the IJ’s view, the fact that the officer to whom Radiowala
provided information was killed ten years after he left was not
enough to suggest that an informant of 20 years ago would be
pursued, let alone tortured. This is because the officer
remained high profile, and actively engaged in a national
operation against Ibrahim, which is not true of Radiowala. The
Board affirmed.
16
We review this decision for abuse of discretion, which
requires reversal only if the decision was “arbitrary, irrational,
or contrary to law.” Sevoian, 290 F.3d at 174 (citations and
internal quotation marks omitted). Here, we are not persuaded
that Ibrahim’s absence from India means that those he pursues
are safe. Officer Salesker’s death counsels otherwise, to the
extent that it was at the hands of associates of Ibrahim.
However, at the time of the Board’s decision, Radiowala had
been absent from India for nearly 20 years and there was no
evidence that harm or threats came to anyone—i.e., his mother
who remained in India—on his behalf. To this effect, the
Board and IJ are correct to point out that Officer Salesker
independently continued his pursuit of Ibrahim. As a result,
we cannot say that it was an abuse of discretion to conclude
that Radiowala’s fear of torture was “too speculative to merit
protection.” A.R. 62.
Radiowala’s sole argument to the contrary is that “[h]e
testified that the police officials in India worked with the
criminal gangster[s] and he was afraid of the police as well.”
Pet’r. Op. Br. 22. Even if we accepted that this testimony
demonstrates that what Radiowala could possibly face has one
of the five elements of torture—an act by or at the instigation
of or with the consent or acquiescence of a public official—it
does nothing to undercut the IJ’s finding that he is unlikely to
be pursued in the first instance.
IV.
For all of these reasons, we will dismiss the petition for
review as to Radiowala’s cancellation of removal claim and
deny it in all other respects.
17