                                                                           FILED
                            NOT FOR PUBLICATION                             APR 04 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



FRANCISCO J. MACEDO-                             No. 09-73816
CASTELLON, AKA Francesco Macedo,
                                                 Agency No. A075-769-946
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted February 12, 2013 **
                                Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
      Petitioner, Francisco J. Macedo-Castellon, petitions for review of a Board of

Immigration Appeals (BIA) order denying his motion to reopen as untimely. The

BIA also concluded that the new evidence Macedo-Castellon submitted did not

warrant reopening in any event. For the following reasons, we dismiss the petition.

      Macedo-Castellon first argues that he should be entitled to equitable tolling

because his attorney committed fraud when she promised to file his motion to

reopen in a timely manner and failed to do so. However, he did not provide proper

evidence of the purported misconduct to the BIA, nor has he done so here. See

Lopez v. I.N.S., 184 F.3d 1097, 1100 (9th Cir. 1999). Thus, the BIA did not err in

denying Macedo-Castellon’s motion as untimely.

      Even if Macedo-Castellon’s motion to reopen were timely, we would lack

jurisdiction to review the BIA’s denial because it “pertain[ed] only to the merits

basis for a previously-made discretionary determination.” Fernandez v. Gonzales,

439 F.3d 592, 603 (9th Cir. 2006). Here, the BIA previously denied Macedo-

Castellon’s application for cancellation of removal based on the discretionary

determination that he failed to establish “exceptional and extremely unusual

hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1). Macedo-Castellon filed

a motion to reopen based on the same type of evidence on which he previously

relied to support his cancellation of removal claim, and the BIA concluded that the


                                          2
evidence was insufficient to warrant reopening his case. Under Fernandez, we

would lack jurisdiction to review this determination because Macedo-Castellon’s

petition presents “essentially the same discretionary issue originally decided.”

Fernandez, 439 F.3d at 600.

      In any event, the BIA’s denial of Macedo-Castellon’s motion to reopen did

not result in a violation of due process. A due process violation may result from the

BIA’s failure to review appropriately all of the evidence provided to it. However,

it is “presumed” that the BIA “review[ed] all the evidence presented unless [it]

explicitly expresses otherwise.” Larita-Martinez v. I.N.S., 220 F.3d 1092, 1095

(9th Cir. 2000) (internal quotation marks omitted). Moreover, because

Macedo-Castellon’s wife is neither a U.S. citizen nor a lawful permanent resident,

the Board was not obliged to give weight to the evidence regarding her medical

condition. Macedo-Castellon has therefore failed to provide information sufficient

to demonstrate a due process violation.

      PETITION FOR REVIEW DISMISSED.




                                          3
