Background
Dwayne Burey, a Jamaican citizen, was ordered removed from the United States in September two thousand twenty-one. He sought to file a motion to reopen his removal proceedings within one year under the Violence Against Women Act. His counsel attempted to file the motion electronically on the deadline, but the system rejected it. An in-person filing was also refused by a court clerk who insisted on electronic filing. The motion was eventually accepted by mail a week later, but the immigration judge denied it as untimely. The Board of Immigration Appeals affirmed the denial.
The court’s reasoning
The court held that the Immigration and Nationality Act creates a right to file a motion to reopen, which constitutes a cognizable liberty interest protected by the Fifth Amendment. The court found that the immigration court’s refusal to accept the filing rendered the proceedings fundamentally unfair. The court rejected the Board’s finding that the petitioner failed to show prejudice, noting that the statute does not require a self-petition to be filed with USCIS prior to the motion. The court also noted that the Board failed to consider recent Supreme Court precedent regarding when a removal order becomes final.
An immigration court cannot prevent a petitioner from filing a motion and then penalize him for failing to do so.
Dwayne Otis Burey v. Todd Blanche, Acting Attorney General, 25-1869 (4th Cir. July 14, 2026)
What it means going forward
The decision clarifies that immigration courts must accept filings when technical failures or clerical refusals prevent timely submission. It also establishes that the Board cannot impose statutory requirements that do not exist in the text of the law when evaluating prejudice in motion to reopen cases.