Maria Navarrete-Melgar v. Todd Blanche

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 24-2205

MARIA SUSANA NAVARRETE-MELGAR,

Petitioner,

v.

TODD BLANCHE, Acting Attorney General,

Respondent.

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

Argued: March 17, 2026 Decided: August 6, 2026

Before KING, GREGORY, and THACKER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ARGUED: Ishan Anand, IMMIGRANTS FIRST, PLLC, Manassas, Virginia, for
Petitioner. Sunah Lee, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Lisa Shea, IMMIGRANTS FIRST, PLLC, Manassas,
Virginia, for Petitioner. Yaakov M. Roth, Acting Assistant Attorney General, Cindy S.
Ferrier, Assistant Director, Andrew N. O’Malley, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
By its decision of November 2024, the Board of Immigration Appeals (the “BIA”)
dismissed petitioner Maria Susana Navarrete-Melgar’s appeal from the November 2019
decision of an immigration judge (“IJ”) denying Navarrete-Melgar relief and ordering her
removed to her home country of El Salvador. Navarrete-Melgar has filed a petition for
review in this Court, asserting that the BIA erred in (1) rejecting her contention that the IJ
lacked jurisdiction over her removal proceedings as a result of a defect in her Notice to
Appear and (2) otherwise upholding the IJ’s denial of relief. As explained herein, we deny
Navarrete-Melgar’s petition.

I.
Navarrete-Melgar and her minor daughter entered the United States without
inspection in early April 2016 by crossing the southern border, soon encountering
immigration authorities.
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On April 16, 2016, an asylum officer conducted a credible fear
interview of Navarrete-Melgar and found that she demonstrated a credible fear of return to
El Salvador.
The Notice to Appear followed, ordering Navarrete-Melgar (who was then residing
in northern Virginia) to make an initial appearance before an IJ in Arlington, Virginia. The
Notice to Appear was dated April 18, 2016, served on Navarrete-Melgar two days later,

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Navarrete-Melgar and her daughter were initially in consolidated removal
proceedings, but the BIA later granted the daughter’s motion to sever and dismiss the
proceedings pertaining to her.

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and filed in the Arlington immigration court on May 10, 2016. Although the Notice to
Appear specified the place for Navarrete-Melgar’s initial appearance (i.e., the Arlington
immigration court), it did not specify the date or time (instead saying the date and time
were “To Be Determined”).
Pursuant to separate notices (each labeled a “Notice of Hearing”) that did include a
date and time, Navarrete-Melgar thereafter made an initial appearance in the Arlington
immigration court on June 21, 2016, and appeared for a master hearing on October 25,
2016. During the master hearing, Navarrete-Melgar admitted the factual allegations in the
Notice to Appear and conceded her removability. That same day, she filed an application
for asylum and withholding of removal under the Immigration and Nationality Act, as well
as for protection under the Convention Against Torture.
During a subsequent individual hearing of November 19, 2019, Navarrete-Melgar
testified and presented other evidence to corroborate her claims. At the conclusion of the
hearing, the IJ issued the decision denying Navarrete-Melgar relief and ordering her
removed to El Salvador. The IJ’s decision was principally based on an adverse credibility
determination against Navarrete-Melgar, resulting from various inconsistencies between
her hearing testimony and her other evidence, application for relief, and prehearing
statements to immigration authorities. The IJ specified that Navarrete-Melgar provided
neither credible testimony nor other evidence independently sufficient to corroborate her
claims. Alternatively, the IJ ruled that even if Navarrete-Melgar’s testimony were credited,
she yet would not qualify for relief.

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In her multiple appearances before the IJ, Navarrete-Melgar never made an issue of
the defect in the Notice to Appear, that defect being the Notice to Appear’s failure to
specify the date and time for Navarrete-Melgar’s initial appearance. In her appeal to the
BIA, however, Navarrete-Melgar raised the defect, contending that it deprived the IJ of
jurisdiction over her removal proceedings and that the proceedings should thus be
terminated. For support, Navarrete-Melgar invoked the Supreme Court’s decisions in
Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021),
which recognized a statutory requirement under 8 U.S.C. § 1229(a)(1) for a Notice to
Appear to specify the time and place of the hearing. Along with her jurisdictional
challenge, Navarrete-Melgar contested the IJ’s decision on the merits.
On November 8, 2024, the BIA issued its decision, dismissing Navarrete-Melgar’s
appeal. In rejecting Navarrete-Melgar’s jurisdictional challenge, the BIA explained that
pursuant to Fourth Circuit and BIA precedents — specifically, United States v. Cortez, 930
F.3d 350 (4th Cir. 2019), and In re Arambula-Bravo, 28 I. & N. Dec. 388 (BIA 2021) —
the statutory time-and-place requirement is not a jurisdictional requirement, such that the
defect in her Notice to Appear did not implicate the IJ’s jurisdiction over her removal
proceedings. Relying on its decision in In re Fernandes, 28 I. & N. Dec. 605 (BIA 2022),
the BIA further explained that the time-and-place requirement is instead a claim-processing
rule subject to waiver and forfeiture if an objection to a noncompliant Notice to Appear is
not timely made. The BIA concluded that, because Navarrete-Melgar never complained
to the IJ that her Notice to Appear was defective, she waived or forfeited enforcement of
the time-and-place requirement.

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As for Navarrete-Melgar’s challenge to the IJ’s decision on the merits, the BIA
rejected that challenge and upheld the IJ’s decision based on the adverse credibility finding
against Navarrete-Melgar, as well as the lack of other evidence independently sufficient to
corroborate her claims. In these circumstances, the BIA deemed it unnecessary to review
the IJ’s alternative ruling that, even if credited, Navarrete-Melgar’s testimony would not
qualify her for relief.
Navarrete-Melgar timely petitioned for our review of the BIA’s decision, and we
possess jurisdiction pursuant to 8 U.S.C. § 1252(a).

II.
As heretofore explained, Navarrete-Melgar asserts that the BIA erred in
(1) rejecting her contention that the IJ lacked jurisdiction over her removal proceedings as
a result of the defect in her Notice to Appear and (2) otherwise upholding the IJ’s denial of
relief. We address those issues in turn.
A.
1.
Whether the IJ was deprived of jurisdiction by the defect in Navarrete-Melgar’s
Notice to Appear — the lack of a hearing date and time — is a legal question that we review
de novo. See Cedillos-Cedillos v. Barr, 962 F.3d 817, 823 (4th Cir. 2020). To be sure, the
Supreme Court has recognized that 8 U.S.C. § 1229(a)(1) requires a Notice to Appear to
specify the time and place of the hearing. See Pereira v. Sessions, 585 U.S. 198, 201-02,
209 (2018); Niz-Chavez v. Garland, 593 U.S. 155, 159 (2021). But the Court did not decide

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in either Pereira or Niz-Chavez (nor has it determined in any other case) whether the
statutory time-and-place requirement is a jurisdictional requirement.
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Significantly, by a published and thus precedential opinion, a three-judge panel of
our Court ruled post-Pereira and pre-Niz-Chavez that the statutory time-and-place
requirement is not a jurisdictional requirement. See United States v. Cortez, 930 F.3d 350,
358 (4th Cir. 2019) (concluding that a Notice to Appear’s failure to include a date and time
for the relevant hearing “does not implicate the immigration court’s adjudicatory authority
or ‘jurisdiction’”). Other panels of our Court have since adhered to Cortez. See, e.g.,
Cedillos-Cedillos, 962 F.3d at 823 (recognizing that Cortez “squarely foreclose[s]” the
argument that a noncompliant Notice to Appear deprives an IJ of jurisdiction). That
includes panels acting in the wake of Niz-Chavez, albeit by unpublished and thus
nonprecedential opinions. See, e.g., United States v. Vasquez Flores, No. 19-4190, 2021
WL 3615366, at *2 n.3 (4th Cir. Aug. 16, 2021) (observing that “Niz-Chavez’s reasoning
does not undermine the reasoning in Cortez”).

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Rather than involving a jurisdictional issue, Pereira and Niz-Chavez presented the
question of what qualifies as a Notice to Appear sufficient to trigger the “stop-time rule,”
i.e., the rule that the government’s service of a Notice to Appear under 8 U.S.C. § 1229(a)
ends a noncitizen’s period of continuous presence in the United States for purposes of
eligibility for certain discretionary relief. See 8 U.S.C. § 1229b(d)(1)(A). In Pereira, the
Supreme Court held that because § 1229(a)(1) requires a Notice to Appear to specify the
time and place of the hearing, “[a] notice that does not inform a noncitizen when and where
to appear” fails to qualify as a Notice to Appear under § 1229(a) and thus “does not trigger
the stop-time rule.” See 585 U.S. at 201-02. Thereafter, in Niz-Chavez, the Court rejected
the government’s theory that it could trigger the stop-time rule by “piecemeal” notices and
instead resolved that “a single fully compliant document” is necessary. See 593 U.S. at
160-72.

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The BIA has similarly determined that the statutory time-and-place requirement is
not a jurisdictional requirement. See In re Arambula-Bravo, 28 I. & N. Dec. 388, 391 (BIA
2021) (explaining that “[t]he absence of the information required by [§ 1229(a)(1)] is not
a ‘jurisdictional defect’” and that “neither Pereira nor Niz-Chavez purport[s] to require
termination of removal proceedings for lack of jurisdiction based on [such an] absence of
information”). Rather, the BIA considers the statutory time-and-place requirement to be a
claim-processing rule that is “mandatory” in the sense that it “must be enforced if it is
properly raised.” See In re Fernandes, 28 I. & N. Dec. 605, 608 (BIA 2022). “Thus,”
according to the BIA, “if a respondent does not raise an objection to a [noncompliant Notice
to Appear] in a timely manner, such an objection is waived or forfeited.” Id. at 609.
Pursuant to Fernandes, the BIA “will generally consider an objection . . . to be timely if it
is raised prior to the closing of pleadings before the [IJ].” Id. at 610-11.
2.
Here, notwithstanding our Cortez opinion and the other contrary precedents,
Navarrete-Melgar continues to insist that the statutory time-and-place requirement is a
jurisdictional requirement. See Br. of Pet’r 14-15. As such, she contends that “[t]he BIA
erred in rejecting [her] argument that the IJ lacked jurisdiction over her claims.” Id. at 14.
Although Navarrete-Melgar invoked the Supreme Court’s decisions in both Pereira and
Niz-Chavez in her appeal to the BIA, she now cites only Niz-Chavez (decided in 2021 while
her BIA appeal was pending), without citing Pereira (decided in 2018 while her IJ
proceedings were ongoing). As part of her jurisdictional contention, Navarrete-Melgar
asserts that — because “the issue of subject matter jurisdiction can be raised at any state in

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a proceeding, even post-trial” — the BIA erred in ruling that she waived or forfeited
enforcement of the time-and-place requirement by not complaining to the IJ that her Notice
to Appear was defective. Id. at 15.
In the alternative, Navarrete-Melgar argues that even if the time-and-place
requirement is a claim-processing rule rather than a jurisdictional requirement, the BIA
erred by deeming her objection untimely and thereby waived or forfeited under its
Fernandes decision. See Br. of Pet’r 16. Notably, Navarrete-Melgar does not assert that
Fernandes was wrongly decided. Instead, Navarrete-Melgar maintains that because
Fernandes was not decided until 2022 (after her IJ proceedings ended in 2019 and while
her BIA appeal was pending), she “could not raise her objection to the defective [Notice to
Appear]” at any point during the IJ proceedings. Id. (emphasis added).
3.
Of course, we must adhere to our Cortez opinion and reject Navarrete-Melgar’s
contention that the statutory time-and-place requirement is a jurisdictional requirement. In
our Court, it is a “basic principle that one panel cannot overrule a decision issued by another
panel.” See McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc).
Consequently, a published panel opinion remains binding unless and until it has been
overruled by an intervening decision of our en banc Court or the Supreme Court. Id. at
333. Although Navarrete-Melgar relies on the Supreme Court’s Niz-Chavez decision for
her jurisdictional contention in this Court, she provides no basis for saying that Niz-Chavez
overruled Cortez. Moreover, we agree with our Court’s unpublished and nonprecedential
— but persuasive — panel opinion in Vasquez Flores that “Niz-Chavez’s reasoning does

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not undermine the reasoning in Cortez.” See Vasquez Flores, 2021 WL 3615366, at *2
n.3.
We also reject Navarrete-Melgar’s alternative theory that even if the time-and-place
requirement is a claim-processing rule rather than a jurisdictional requirement, the BIA
erred by deeming her objection untimely under its Fernandes decision. Without assessing
the merits of Fernandes (as Navarrete-Melgar does not assert that it was wrongly decided),
we consider only her contention that she “could not” complain to the IJ about the defective
Notice to Appear because Fernandes post-dated her IJ proceedings. This contention is not
well-taken, in that Navarrete-Melgar was put on notice of the defect in her Notice to Appear
at least by 2018 — when the Supreme Court issued its Pereira decision while the IJ
proceedings were ongoing — yet for some unexplained reason waited until her BIA appeal
to finally raise her objection. As we have recognized in similar circumstances, the BIA
therefore “correctly ruled that this did not qualify as a timely objection under In re
Fernandes.” See Amador Hernandez v. Bondi, No. 24-1448, 2025 WL 655592, at *2 (4th
Cir. Feb. 28, 2025) (unpublished). To be clear, the critical problem for Navarrete-Melgar
is not that she missed Fernandes’s general deadline for a timely objection by failing to
object prior to the closing of pleadings before the IJ. It’s that she never raised an objection
to the IJ at all.
B.
Turning to whether the BIA otherwise properly upheld the IJ’s denial of relief to
Navarrete-Melgar, we review both the BIA’s and the IJ’s decisions. See Cabrera v.
Garland, 21 F.4th 878, 883 (4th Cir. 2022) (explaining that “if the BIA affirms and adopts

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an IJ’s decision and includes its own reasons for affirming, this Court reviews both
decisions” (citation modified)). Our review is limited to the grounds on which the BIA
relied, i.e., the adverse credibility determination against Navarrete-Melgar and the lack of
other evidence independently sufficient to corroborate her claims. See Mulyani v. Holder,
771 F.3d 190, 196 (4th Cir. 2014) (cautioning “that review of an IJ decision is permissible
only to the extent that the BIA adopted it”).
We review the adverse credibility determination and other findings of fact for
substantial evidence, “a narrow and deferential review.” See Munyakazi v. Lynch, 829 F.3d
291, 298 (4th Cir. 2016) (citation modified). With respect to the adverse credibility
determination, we are obliged to “assess whether the IJ or BIA identified non-speculative,
specific, cogent reasons in support of [that determination].” See Hui Pan v. Holder, 737
F.3d 921, 928 (4th Cir. 2013) (citation modified). We must also bear in mind that “an
adverse credibility finding is generally fatal to [a noncitizen’s claims] unless [she] proves
[her claims] through evidence independent of [her] own testimony.” Id. at 930.
Upon careful consideration of the BIA’s and IJ’s decisions, the administrative
record, and the briefs and oral arguments of the parties, we conclude that substantial
evidence supports not only the adverse credibility determination against Navarrete-Melgar,
but also the determination that she lacked other evidence independently sufficient to
corroborate her claims. We therefore reject Navarrete-Melgar’s contention that the BIA
erred in upholding the IJ’s denial of relief.

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III.
Pursuant to the foregoing, we are constrained to deny Navarrete-Melgar’s petition
for review.
PETITION DENIED