Background
Dwayne Burey, a Jamaican citizen who entered the United States on a work visa in 2015, married a U.S. citizen but later faced domestic violence at her hands. After his work visa expired, the Department of Homeland Security initiated removal proceedings, and an immigration judge ordered his removal on September 21, 2021. Under the Violence Against Women Act (VAWA), Burey had one year from his removal order—until September 21, 2022—to file a motion to reopen, an extended deadline created to protect domestic violence survivors.
On September 21, 2022, Burey’s counsel attempted to file the motion electronically, but the immigration court’s electronic system rejected it. The same day, counsel went to the courthouse and tried to file a paper copy in person, but the clerk refused to accept it, insisting the motion could only be filed electronically. After further failed attempts to file electronically and repeated calls to the clerk, counsel mailed the motion to the court on September 28, 2022, with a supporting affidavit and documentation of the electronic system’s rejection.
The immigration judge denied the motion as untimely. The Board of Immigration Appeals affirmed, with one dissent. Burey appealed to the Fourth Circuit on constitutional grounds, arguing the immigration court’s refusal to accept his filing violated his Fifth Amendment due process rights.
The Court’s Holding
The Fourth Circuit reversed, finding Burey was denied due process when the immigration court prevented him from filing his motion on the deadline and then penalized him for failing to do so. The court held that Burey possesses a cognizable liberty interest protected by the Fifth Amendment—not a guarantee that his motion would be granted on the merits, but a right to file the motion itself under the Immigration and Nationality Act. The statute expressly grants noncitizens the right to “file one motion to reopen proceedings,” which creates an entitlement sufficient to trigger Fifth Amendment protections.
The court found the immigration court’s proceedings were fundamentally unfair because Burey provided unrefuted evidence of being prevented from filing: a printed copy of the electronic system’s rejection and a sworn affidavit documenting the clerk’s refusal to accept the paper filing. The BIA’s conclusion that Burey’s claims were “unsupported by the record” was clearly erroneous under the substantial evidence standard. Most critically, the court held Burey established prejudice: had the immigration court accepted either his electronic or in-person filing on September 21, 2022, the motion would have been timely under VAWA’s one-year deadline, and the parties agreed he had stated a prima facie case for reopening.
The court also held the BIA improperly imposed a requirement not found in the statute. VAWA requires a petitioner to submit a “copy of the self-petition that has been or will be filed” with USCIS—the statute explicitly permits future filing. The BIA erred in requiring Burey to have already filed his Form I-360 VAWA self-petition before filing his motion to reopen; his copy of the intended self-petition satisfied the statutory requirement.
Key Takeaways
- An immigration court cannot prevent a petitioner from filing a motion and then dismiss it as untimely—this violates Fifth Amendment due process rights.
- A statute granting the right to file creates a cognizable liberty or property interest protected by due process, even if success on the merits is not guaranteed.
- Under VAWA, the statutory requirement to submit a “copy of the self-petition that has been or will be filed” means counsel may submit a petition intended for future filing; it need not already be submitted to USCIS.
- When challenging timeliness, documentary evidence of filing obstacles (electronic system rejections, court clerk refusals) must be credited and cannot be dismissed as “unsupported by the record” when tangible evidence exists.
Why It Matters
This decision reinforces that immigration courts are bound by due process and cannot serve as gatekeepers who arbitrarily block filings and then penalize petitioners for missing deadlines. The holding protects access to remedies themselves, not just the remedies’ merits—a vital safeguard for litigants in immigration proceedings where procedural obstacles can prove fatal to claims. The opinion also strengthens VAWA protections for domestic violence survivors by clarifying that statutory extensions like the one-year deadline are meaningless if courts can prevent timely filings through system malfunctions or clerk refusals.
The court’s explicit rebuke—”Filing a motion should not be a game of gotcha”—signals heightened scrutiny of procedural gatekeeping in immigration courts. The decision establishes that government actors cannot simultaneously erect barriers to filing and then use missed deadlines as grounds for dismissal, particularly where statutory language contemplates extended periods to accommodate vulnerable populations. For practitioners, the ruling also clarifies that VAWA self-petition requirements can be satisfied by submitting the intended petition with a motion to reopen, without requiring prior USCIS filing.