Medardo-Linares v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2023
• Docket: 21-409
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS MEDARDO-LINARES, No. 21-409

Petitioner, Agency No. A077-867-164

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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Submitted March 17, 2023** Submission Withdrawn March 17, 2023 Resubmitted October 19, 2023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). 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).

2 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

3 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

4 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.

5 21-409