Defective Notice to Appear (No Time/Date) Does Not Strip IJ Jurisdiction; Objection Is Forfeited if Not Raised Before the IJ

1. Introduction

In Maria Navarrete-Melgar v. Todd Blanche (4th Cir. Aug. 6, 2026) (unpublished), the Fourth Circuit denied a petition for review of a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge (“IJ”) order of removal and denial of asylum, withholding of removal, and Convention Against Torture protection.

The case arose after Maria Susana Navarrete-Melgar, a Salvadoran national, entered the United States without inspection in 2016. She later conceded removability and sought protection-based relief. After an adverse credibility finding, the IJ denied relief in 2019. On appeal to the BIA, Navarrete-Melgar newly argued that the IJ lacked jurisdiction because her Notice to Appear (“NTA”) omitted the hearing date and time (listed as “To Be Determined”), even though later “Notice of Hearing” documents supplied the missing scheduling information.

The Fourth Circuit addressed two issues: (1) whether an NTA lacking date/time deprives the IJ of jurisdiction (and whether a late objection can be excused), and (2) whether substantial evidence supported denial of relief based on adverse credibility and insufficient corroboration.

2. Summary of the Opinion

  • No jurisdictional defect: Relying on binding circuit precedent, the court held that an NTA’s failure to include a hearing date and time “does not implicate the immigration court’s adjudicatory authority or ‘jurisdiction.’”
  • Forfeiture/waiver of claim-processing objection: Even treating the NTA requirement as a claim-processing rule, the court agreed with the BIA that Navarrete-Melgar forfeited/waived enforcement by never objecting before the IJ, despite being on notice of the issue at least by Pereira v. Sessions (2018).
  • Merits affirmed: The court found substantial evidence supporting the adverse credibility determination and the conclusion that independent corroboration did not establish eligibility for relief.

3. Analysis

3.1. Precedents Cited

A. Supreme Court: statutory completeness of an NTA (in a different context)

  • Pereira v. Sessions, 585 U.S. 198 (2018): Recognized that 8 U.S.C. § 1229(a)(1) requires an NTA to specify time and place, and held that a noncompliant NTA does not trigger the “stop-time rule” for cancellation of removal. The Fourth Circuit emphasized that Pereira did not decide immigration-court jurisdiction.
  • Niz-Chavez v. Garland, 593 U.S. 155 (2021): Rejected “piecemeal” notices for stop-time purposes, requiring “a single fully compliant document.” The court treated Niz-Chavez as stop-time jurisprudence that does not overrule Fourth Circuit jurisdiction precedent.

B. Fourth Circuit: jurisdiction is foreclosed by binding circuit precedent

  • United States v. Cortez, 930 F.3d 350 (4th Cir. 2019): The controlling decision. It held that omission of date/time in an NTA does not deprive the immigration court of jurisdiction. The panel here treated Cortez as dispositive absent intervening en banc or Supreme Court authority.
  • Cedillos-Cedillos v. Barr, 962 F.3d 817 (4th Cir. 2020): Cited to underscore that Cortez “squarely foreclose[s]” jurisdiction arguments based on defective NTAs.
  • United States v. Vasquez Flores, No. 19-4190, 2021 WL 3615366 (4th Cir. Aug. 16, 2021) (unpublished): Used as persuasive support for the proposition that “Niz-Chavez’s reasoning does not undermine” Cortez.
  • McMellon v. United States, 387 F.3d 329 (4th Cir. 2004) (en banc): Supplies the rule of interpanel stare decisis—one panel cannot overrule another; only en banc or the Supreme Court can.
  • Amador Hernandez v. Bondi, No. 24-1448, 2025 WL 655592 (4th Cir. Feb. 28, 2025) (unpublished): Persuasive authority supporting the BIA’s conclusion that a late-raised NTA objection is not “timely” under BIA practice when not raised before the IJ.

C. BIA: framing the defect as claim-processing and subject to forfeiture

  • In re Arambula-Bravo, 28 I. & N. Dec. 388 (BIA 2021): The BIA’s statement that missing § 1229(a)(1) information is not a “jurisdictional defect” and that Pereira/Niz-Chavez do not mandate termination for lack of jurisdiction.
  • In re Fernandes, 28 I. & N. Dec. 605 (BIA 2022): Characterizes the statutory time-and-place requirement as a mandatory claim-processing rule that must be enforced if properly raised, but is waived/forfeited if not timely asserted—generally by the close of pleadings before the IJ.

D. Merits review: standards governing credibility and appellate review

  • Cabrera v. Garland, 21 F.4th 878 (4th Cir. 2022): Defines when the court reviews both BIA and IJ decisions (when the BIA affirms/adopts and adds reasons).
  • Mulyani v. Holder, 771 F.3d 190 (4th Cir. 2014): Limits review to the grounds the BIA relied upon.
  • Munyakazi v. Lynch, 829 F.3d 291 (4th Cir. 2016): Describes the “narrow and deferential” substantial-evidence standard for factfinding.
  • Hui Pan v. Holder, 737 F.3d 921 (4th Cir. 2013): Requires “non-speculative, specific, cogent reasons” for adverse credibility; also notes that adverse credibility is generally fatal absent independent corroboration.

3.2. Legal Reasoning

  1. Jurisdiction versus statutory compliance: The court began by acknowledging the Supreme Court’s construction of § 1229(a)(1) in Pereira and Niz-Chavez (time/place must be specified). It then separated that statutory-compliance point from the distinct question of jurisdiction, emphasizing that the Supreme Court had not held the requirement jurisdictional.
  2. Binding circuit precedent controls: Applying McMellon, the panel treated United States v. Cortez as binding, concluding it foreclosed the argument that the IJ lacked jurisdiction.
  3. Claim-processing rule and forfeiture: Accepting (without re-litigating) the BIA’s framework in In re Fernandes, the court held that even if the defect is a mandatory claim-processing rule, it can be forfeited if not timely raised. The panel rejected Navarrete-Melgar’s argument that she “could not” object before the IJ because Fernandes was decided later; the court pointed out she had notice of the defect no later than Pereira (2018), while IJ proceedings were still underway, yet never objected at all before the IJ.
  4. Merits: deference to credibility findings: On the relief claims, the court confined review to the BIA’s relied-upon grounds—adverse credibility and lack of sufficient corroboration—and held substantial evidence supported both determinations, making denial of relief appropriate without reaching the IJ’s alternative merits ruling.

3.3. Impact

  • Within the Fourth Circuit: Although unpublished and nonbinding, the decision reinforces the operative, published rule of United States v. Cortez: missing time/date in an NTA does not divest jurisdiction. Litigants should expect jurisdictional termination arguments to fail absent an intervening Supreme Court or en banc decision.
  • Procedural practice before IJs: The opinion underscores a practical lesson: if respondents wish to enforce the statutory NTA requirements as a claim-processing matter, they must raise objections before the IJ—ideally prior to the close of pleadings—rather than waiting for BIA appeal.
  • Asylum adjudication: The decision illustrates how adverse credibility findings, coupled with insufficient corroboration, remain a common and highly deferentially reviewed basis for denial of protection-based relief on petition for review.

4. Complex Concepts Simplified

Notice to Appear (NTA)
The charging document that initiates removal proceedings and lists allegations and the statutory basis for removability, as well as hearing information required by statute.
Jurisdiction vs. claim-processing rule
A jurisdictional rule limits a tribunal’s power to act and typically can be raised at any time. A claim-processing rule governs how and when parties must raise issues; it can be mandatory but still forfeited if not timely asserted.
Stop-time rule
A rule affecting eligibility for certain discretionary relief (like cancellation of removal) by stopping the accrual of continuous physical presence when a qualifying NTA is served. Pereira and Niz-Chavez addressed what counts as a qualifying NTA for this purpose.
Waiver/forfeiture
Loss of an argument because it was not timely raised; the opinion treats failure to object before the IJ as fatal under the BIA’s timeliness framework.
Substantial evidence
An appellate standard requiring the court to uphold agency factfinding unless the record compels the opposite conclusion—highly deferential to the IJ/BIA.
Adverse credibility
A determination that the applicant’s testimony is not believable due to inconsistencies or other reasons; it is often decisive unless strong independent corroborating evidence proves the claim.

5. Conclusion

The Fourth Circuit’s decision denies review by applying two core principles: (1) under binding circuit law, an NTA that omits hearing date and time does not deprive an IJ of jurisdiction; and (2) even if the defect is framed as a mandatory claim-processing requirement, it can be forfeited when the respondent fails to object before the IJ—particularly where the respondent had notice of the issue during ongoing proceedings. On the merits, the court reaffirmed the decisive role of adverse credibility and the deference owed to the agency’s factual determinations when corroboration is lacking.