Maria Chavalan-Sut v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 12, 2024
• Docket: 21-2049
• Status: Unpublished

Opinion

USCA4 Appeal: 21-2049 Doc: 32 Filed: 07/12/2024 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2049

MARIA CHAVALAN-SUT,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted: June 25, 2024 Decided: July 12, 2024

Before KING, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: Alina Marie Kilpatrick, SUDESTE IMMIGRATION LAWYERS PLLC, Richmond, Virginia, for Petitioner. Brian Boynton, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Ilana J. Snyder, Trial Attorney, 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Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-2049 Doc: 32 Filed: 07/12/2024 Pg: 2 of 2

PER CURIAM:

Maria Chavalan-Sut, a native and citizen of Guatemala, petitions for review of an

order of the Board of Immigration Appeals (“Board”) dismissing her appeal from the

immigration judge’s (“IJ”) decision denying her second motion to reopen seeking to

rescind her in absentia order of removal. We have reviewed the record and the IJ’s decision

and conclude that the Board did not abuse its discretion in dismissing the appeal. See

Garcia Hernandez v. Garland, 27 F.4th 263, 266 (4th Cir. 2022) (stating standard of

review). Chavalan-Sut’s contention that the IJ did not have authority to order her removed

in absentia because the notice to appear did not indicate the time and place for the removal

proceedings is without merit. See Cedillos-Cedillos v. Barr, 962 F.3d 817, 823

(4th Cir. 2020) (noting that requirement that notice to appear include time and date of

proceedings is not jurisdictional).

That leaves Chavalan-Sut’s contention that she was denied due process because she

did not receive the notice at all. She does not dispute that the notice was sent to her last

known address and was not returned as undeliverable. She must therefore rebut the

“presumption of effective delivery” we afford the agency. Nibagwire v. Gonzales, 450 F.3d

153, 156 (4th Cir. 2006). Because she has failed to do so, we reject her constitutional

argument as well.

Accordingly, we deny the petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

PETITION DENIED