Radiowala v. Attorney Gen. United States

• Decision Date: 22 July 2019
• Docket Number: No. 18-3480,18-3480
• Citation: 930 F.3d 577
• Parties: Ubaidullah Abdulrashid RADIOWALA, a/k/a Obed Radiowala, a/k/a Obaid Radiowalla, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

930 F.3d 577

Ubaidullah Abdulrashid RADIOWALA, a/k/a Obed Radiowala, a/k/a Obaid Radiowalla, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 18-3480

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a June 27, 2019

Filed: July 22, 2019

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., Joseph 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.

Before: CHAGARES, GREENAWAY, JR. and GREENBERG, Circuit Judges.

OPINION

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 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 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. § 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 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 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, 67 S.Ct. 1760, 91 L.Ed. 1995 (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 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. Cancellation of Removal

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 permanent residence." See 8 U.S.C. § 1229b(b). In essence, it is an expression that,...