NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS MEDARDO-LINARES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 21-409

Agency No. A077-867-164

MEMORANDUM*

On Petition for Review of an Order of the

Immigration Court

Submitted March 17, 2023**

Submission Withdrawn March 17, 2023

Resubmitted October 19, 2023

Before: LEE, BRESS, MENDOZA, Circuit Judges.

Carlos Medardo-Linares (Medardo), a native and citizen of El Salvador, 

petitions pro se for review of a reinstatement of a final order of removal issued 

by an Immigration Judge (IJ), in which the IJ concurred with the negative 

reasonable fear determination made by the Department of Homeland Security 

(DHS). We review an IJ’s negative reasonable fear determination for substantial 

* This disposition is not appropriate for publication and is not 

precedent except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-409

evidence and must uphold that decision “unless, based on the evidence, any 

reasonable adjudicator would be compelled to conclude to the contrary.” 

Bartolome v. Sessions, 904 F.3d 803, 811 (9th Cir. 2018) (internal quotations 

omitted). We review due process challenges to reasonable fear proceedings de 

novo. Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019) (per curiam). We have 

jurisdiction under 8 U.S.C. § 1252 and deny the petition.1 

1. Substantial evidence supports the IJ’s negative reasonable fear 

determination. To avoid reinstatement of a removal order, an alien must show a 

“reasonable fear of persecution or torture,” which requires “establish[ing] a 

reasonable possibility that he or she would be persecuted on account of his or her 

race, religion, nationality, membership in a particular social group or political 

opinion, or a reasonable possibility that he or she would be tortured in the country 

of removal.” 8 C.F.R. § 208.31(c). 

Although Medardo expressed fear of generalized gang violence in El 

Salvador, substantial evidence supports the IJ’s determination that Medardo

failed to establish that he will be targeted by gangs on account of a protected 

ground. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) 

(“Asylum is not available to victims of indiscriminate violence, unless they are 

1 Medardo’s petition for review was filed within 30 days of the conclusion 

of the IJ’s reasonable fear proceedings, and is therefore timely, as the government 

now concedes. See Alonso-Juarez v. Garland, 80 F.4th 1039, 1051 (9th Cir. 

2023); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). 
3 21-409

singled out on account of a protected ground.”). Medardo alleges he was targeted 

by gang members who perceived him to be a member of a rival gang because 

some of his family members are affiliated with a gang. But even assuming 

persons perceived as rival gang members could be regarded as a cognizable 

particular social group, Medardo has not shown how he was harmed or will be 

harmed on this basis, as opposed to indiscriminate gang violence in El Salvador. 

See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to 

be free from harassment by criminals motivated by theft or random violence by 

gang members bears no nexus to a protected ground.”). The IJ also reasonably 

concluded that the harm Medardo had suffered from gangs and police in the past 

did not amount to torture and that he had not demonstrated a likelihood of future 

torture. See 8 C.F.R. § 1208.18.

2. The IJ’s reasonable fear review hearing complied with applicable 

regulations and with the requirements of due process. Medardo argues that the IJ 

violated his Fifth Amendment due process rights by failing to issue a “complete 

decision” explaining the IJ’s concurrence in DHS’s negative reasonable fear 

determination. But the IJ explained the grounds for the negative reasonable fear 

determination in an oral decision. These explanations were “sufficient to enable 

a reviewing court to perceive that [the IJ] has heard and thought and not merely 

reacted.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (quoting Lopez 

v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004)).

3. Medardo has not established that his counsel during the IJ review 
4 21-409

proceedings was ineffective. Although the Sixth Amendment does not apply to

civil immigration proceedings, immigration counsel can “be so ineffective as to 

deprive [petitioners] of their Fifth Amendment right to due process of law.” 

Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008). “[A]liens shoulder a 

heavier burden of proof in establishing ineffective assistance of counsel under the 

Fifth Amendment than under the Sixth Amendment . . .” Torres-Chavez v. 

Holder, 567 F.3d 1096, 1100 (9th Cir. 2009) (internal quotations omitted). The 

focus of the Fifth Amendment inquiry is whether “the proceeding is so 

fundamentally unfair that the alien is prevented from reasonably presenting her 

case.” Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003). 

Medardo has not made this showing. He does not explain how counsel’s 

supposed failure to object to the IJ’s questions was unreasonable. Nor does he 

explain how counsel’s lack of diligence in reviewing his file prejudiced him. 

Lastly, while counsel did not attempt to articulate a plausible protected ground or 

particular social group, Medardo does not demonstrate how this affected the 

outcome of the proceeding or what plausible social group should have been put 

forward instead. The IJ explicitly asked Medardo whether he or his family were 

harmed because of their membership in a particular social group, and Medardo 

responded that he had been targeted due to his perceived gang affiliation. As 

discussed above, however, the IJ reasonably concluded that this did not provide 

a sufficient nexus to a protected ground.

4. Medardo asserts that we cannot review documents included in 
5 21-409

DHS’s Certified Record of Proceedings (ROP) because they were not part of the 

administrative record. This argument is meritless. The IJ stated that, in 

conducting his review, he would consider “any documents that the Asylum 

Officer considered in reaching her decision,” which included the documents 

presented in the DHS ROP. The inclusion of the DHS ROP documents as part of 

the administrative record does not violate due process.

PETITION DENIED.