17-1913 

Macareno v. Sessions

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an electronic 

database (with the notation “summary order”). A party citing a summary order must serve 

a copy of it on any party not represented by counsel. 

 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on 

the 25th day of September, two thousand eighteen. 

 

Present: ROBERT A. KATZMANN, 

 Chief Judge, 

 RAYMOND J. LOHIER, JR., 

 Circuit Judge, 

 TIMOTHY C. STANCEU, 

 Judge.

*

________________________________________________ 

WENCESLAO RAFAEL TAPIA MACARENO, aka 

Wenceslao Tapia-M, aka Rafael Tapia, aka Wenceslao 

Rafael Macareno, 

 Petitioner, 

 v. No. 17-1913 

 

JEFFERSON B. SESSIONS III, United States Attorney 

General, 

 Respondent. 

____________________________________________ 

For Petitioner: PATRICK CROWLEY, Kuba Law Firm, New York, NY. 

For Respondent: CHAD A. READLER, Acting Assistant Attorney General; Jonathan A. 

Robbins, Senior Litigation Counsel; Tracey N. McDonald, Trial 

 

*

 Timothy C. Stanceu, Chief Judge of the United States Court of International Trade, sitting by designation. 
2 

Attorney, Office of Immigration Litigation, United States Department 

of Justice, Washington, DC. 

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the 

petition for review is DENIED. 

 Petitioner Wenceslao Rafael Tapia Macareno seeks review of a June 2, 2017 decision 

of the BIA affirming an August 12, 2016 decision by an immigration judge (“IJ”) denying Tapia 

Macareno’s application for cancellation of his removal pursuant to 8 U.S.C. § 1229b. We assume 

the parties’ familiarity with the underlying facts and the procedural history in this case. 

We first address the contention that the BIA erred by affirming the IJ’s exclusion of 

certain evidence in light of a pre-hearing deadline that was not satisfied. An IJ, like a district 

judge, has broad discretion to set and enforce filing deadlines. Dedji v. Mukasey, 525 F.3d 187, 

192 (2d Cir. 2008). We review the enforcement of such deadlines under an abuse of discretion 

standard. Id. at 191. 

In advance of a June 15, 2015 hearing, the IJ ordered that any documentary evidence was 

to have been submitted by April 2, 2015. Tapia Macareno nevertheless failed to submit the 

materials in question until May 4, 2015. In the absence of good cause for that delay, which Tapia 

Macareno has not established, the IJ did not abuse its discretion by excluding that evidence as 

untimely. See, e.g., Lin v. Sessions, 721 F. App’x 68, 71 (2d Cir. 2018); Weng v. Mukasey, 294 F. 

App’x 672, 673 (2d Cir. 2008). Indeed, the agency’s rules expressly call for that result. See 8 

C.F.R. § 1003.31(c) (“If an application or document is not filed within the time set by the 

Immigration Judge, the opportunity to file that application or document shall be deemed 

waived.”). 
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In addition, Tapia Macareno argues that the BIA erred in declining to remand this matter 

based upon ineffective assistance of counsel, which requires Tapia Macareno to “establish that 

‘counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of 

the hearing.’” Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008) (quoting Zheng v. Dep’t of 

Justice, 409 F.3d 43, 46 (2d Cir. 2005)). “To show fundamental unfairness, the applicant must 

allege sufficient facts to show that competent counsel would have acted otherwise and that the 

applicant was prejudiced by his counsel’s performance,” which we evaluate using our own 

“‘judgment as to whether counsel was effective.’” Id. (quoting Esposito v. INS, 987 F.2d 108, 

111 (2d Cir. 1993)). 

Tapia Macareno has not satisfied either prong of this test. First, we cannot say that a 

competent attorney would have acted any differently as compared to the attorney who 

represented Tapia Macareno below. Indeed, the record suggests that the fault with respect to 

Tapia Macarano’s untimely submission may lie with him, rather than with his counsel, based 

upon the only explanation for the delay that has been offered.1

 Second, Tapia Macareno has not 

directed us to any excluded evidence that would have been relevant to the IJ’s findings, nor has 

he offered any argument as to how or why the IJ’s analysis would have differed if the contested 

evidence had been admitted. Without elaboration, his bare conclusory assertion that a different 

 

1

 When the IJ inquired as to the reason for the delay, the following colloquy ensued: 

Counsel: Your Honor, we submitted the evidence once we, we got it from the respondent. Overall, 

just to competent [sic] the Court a little, I’m covering today’s hearing. This, this case was assigned 

to Marlene at the office but she’s on maternity leave. She actually gave birth about three days ago, 

so, you know, she kind of handled the filings and I’m assuming she filed this when she got it from 

respondent but – 

IJ: But you have no knowledge – 

Counsel: Yeah. 

IJ: - other than you believe the respondent got it to you as soon as possible? 

Counsel: Yes. 

App. 219-20. 
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result would have obtained if the IJ had considered the excluded evidence does not sufficiently 

state an argument for this Court’s consideration. See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d 

Cir. 2001) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at 

developed argumentation, are deemed waived.” (internal quotation marks omitted)). 

We have considered Tapia Macareno’s remaining arguments and conclude that they are 

either not properly before us—because they were not raised in his brief before the BIA—or are 

otherwise without merit. For the foregoing reasons, the petition for review is DENIED. 

 FOR THE COURT: 

 CATHERINE O’HAGAN WOLFE, CLERK