Francisco MacEdo-castellon v. Eric Holder, Jr.

MEMORANDUM

Petitioner, Francisco J. Macedo-Castel-lon, 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…