Due Process Requires a Meaningful Opportunity to File: Immigration Courts May Not Block Timely Motions to Reopen and Then Deny Them as Untimely

I. Introduction

In Dwayne Burey v. Todd Blanche (4th Cir. July 14, 2026), the Fourth Circuit granted a petition for review and reversed the Board of Immigration Appeals’ (BIA) dismissal of a motion-to-reopen appeal. The case arose after an Immigration Judge (IJ) ordered Dwayne Otis Burey, a Jamaican citizen, removed. Burey sought to file a motion to reopen under the Violence Against Women Act (VAWA) reopening provisions for survivors of domestic violence. On the final day of the one-year VAWA filing period, his counsel attempted to file electronically, was rejected by the court’s system, then attempted an in-person paper filing that a clerk refused to accept. The motion was later accepted only after being mailed, and the immigration court recorded it as filed after the deadline.

The central issues were whether (1) Burey had a cognizable liberty/property interest for procedural due process purposes grounded in the statutory “right to file” a motion to reopen, and (2) the immigration court’s conduct—blocking timely filing and then treating the motion as late—violated the Fifth Amendment’s guarantee of due process.

II. Summary of the Opinion

The Fourth Circuit held that the Immigration and Nationality Act (INA) confers an unambiguous right to file one motion to reopen, creating a cognizable interest protected by procedural due process. It further held that the record compelled the conclusion that the immigration court itself prevented timely filing—first through the electronic system’s rejection and then through the clerk’s refusal to accept a paper filing. Denying the motion as untimely under those circumstances rendered proceedings “fundamentally unfair” and prejudiced Burey because, had the filing been accepted on time, the motion would have been timely and the government did not dispute that he articulated a prima facie VAWA case.

The court also faulted the BIA for imposing a requirement not found in the statute—treating the VAWA reopening motion as deficient because Burey had not yet filed his Form I-360—despite the statute expressly allowing submission of a copy of the self-petition that “has been or will be filed” upon reopening.

The court reversed and remanded to the BIA. It additionally noted intervening guidance on finality from Riley v. Bondi and related Fourth Circuit authority (Lopez v. Bondi), instructing the BIA to consider on remand when the removal order became “final,” which could affect whether the motion was actually late.

III. Analysis

A. Precedents Cited

  • Kucana v. Holder, 558 U.S. 233 (2010): Cited for jurisdiction to review denials of motions to reopen on petition for review. It anchors the Fourth Circuit’s authority to reach the merits of the due process challenge rather than treating reopening as categorically unreviewable.
  • Hussen v. Bondi, 135 F.4th 150 (4th Cir. 2025): Supplies the abuse-of-discretion standard for reopening denials, framing how deferential review applies—except where constitutional or legal errors are claimed.
  • Cabrera v. Garland, 21 F.4th 878 (4th Cir. 2022): Establishes that when the BIA adopts the IJ’s decision and adds its own reasoning, the reviewing court examines both decisions.
  • Tinoco Acevado v. Garland, 44 F.4th 241 (4th Cir. 2022): Confirms de novo review for questions of law and constitutional claims—critical here because the core claim is procedural due process.
  • Perez Vasquez v. Garland, 4 F.4th 213 (4th Cir. 2021) (quoting Chen v. Holder, 742 F.3d 171 (4th Cir. 2014)): Provides the substantial-evidence standard and the “compelled to conclude to the contrary” formulation. The panel uses this to underscore that the record compelled the conclusion that filing was blocked.
  • Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002): Invoked by the government to argue lack of a cognizable interest. The court distinguishes it by focusing on the statutory entitlement to file (not to win) a reopening motion.
  • Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021) (quoting Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000)): Supports the proposition that deprivation of statutory or regulatory procedural protections can amount to a due process violation.
  • Williams v. Gonzales, 499 F.3d 329 (4th Cir. 2007): Central to the holding on cognizable interest; it recognizes that 8 U.S.C. § 1229a(c)(7)(A) creates a clear “right to file” one motion to reopen.
  • Anim v. Mukasey, 535 F.3d 243 (4th Cir. 2008): Supplies the two-part due process test in immigration proceedings: fundamental unfairness plus prejudice.
  • Romero v. Bondi, 150 F.4th 332 (4th Cir. 2025): Used to illustrate that proceedings are fundamentally unfair when core procedural fairness is compromised; the panel applies this logic to the “blocked filing then penalized” scenario.
  • Rusu v. U.S. Immigr. & Naturalization Serv., 296 F.3d 316 (4th Cir. 2002): Cited for the prejudice requirement—i.e., the defect must have affected the outcome.
  • Lopez-Sorto v. Garland, 103 F.4th 242 (4th Cir. 2024) and Cela v. Garland, 75 F.4th 355 (4th Cir. 2023): Address mootness after removal; the court relies on them to explain that removal during the appeal does not necessarily preclude “effectual relief.”
  • Riley v. Bondi, 606 U.S. 259 (2025) and Lopez v. Bondi, 167 F.4th 223 (4th Cir. 2026): These decisions clarify when an order becomes “final” (particularly when no BIA appeal is taken). The panel flags them as potentially altering the timeliness analysis on remand, reinforcing that the agency’s deadline calculation may have been wrong as a matter of law.

B. Legal Reasoning

  1. Cognizable interest: the “right to file” is protected.

    The court rejects the government’s framing that Burey must show an entitlement to reopening itself. Instead, it identifies the protected interest as the statutory entitlement to file one motion to reopen under 8 U.S.C. § 1229a(c)(7)(A). By relying on Williams v. Gonzales, the court treats that entitlement as sufficient to satisfy the threshold due process requirement of a liberty/property interest.

  2. Fundamental unfairness: the court cannot create the default.

    The panel holds the record “compels” the conclusion that the court’s own mechanisms prevented timely filing: the e-filing rejection forced paper, and the clerk refused paper and insisted on electronic filing. From that, it articulates a straightforward due process rule: an immigration court may not prevent a litigant from filing and then deny relief because the litigant “failed” to file.

  3. Prejudice: the blocked filing was outcome-determinative.

    Prejudice existed because a timely filing would have satisfied VAWA’s one-year deadline, and the government did not dispute that Burey made out a prima facie VAWA reopening case. The BIA’s contrary prejudice analysis failed for two independent reasons:

    • “Come back tomorrow” does not cure denial of a deadline-day filing.

      The BIA treated counsel’s failure to return the next day as defeating prejudice, but the BIA itself identified the operative deadline as September 21. The panel reasons that conduct after the stated deadline cannot rationally negate the prejudice caused by the court’s refusal to accept a deadline-day filing.

    • The BIA imposed a non-statutory requirement concerning Form I-360.

      The statute (8 U.S.C. § 1229a(c)(7)(C)(iv)(II)) expressly allows submission of a self-petition copy that “has been or will be filed” upon reopening. By faulting Burey for not having filed the petition yet—even though he provided a copy—the BIA added an extra-statutory prerequisite. Citing Perez Vasquez v. Garland, the panel treats this kind of statutory misinterpretation as legal error warranting vacatur.

  4. Remand and finality: timeliness may be different under intervening law.

    Although the court found a due process violation based on the agency’s own premise that the deadline was September 21, it also instructs the BIA to consider on remand—under Riley v. Bondi and Lopez v. Bondi—when the removal order became “final,” which could mean the motion was timely even as recorded.

C. Impact

  • Operational due process rule for filing barriers.

    The opinion effectively establishes that administrative filing systems and clerk-office practices are part of the “process” the Fifth Amendment regulates. When those mechanisms block a statutorily permitted filing, the agency cannot rely on the resulting lateness to deny access to adjudication.

  • Strengthening “right to file” due process claims.

    By tying due process directly to the INA’s “right to file” language, litigants may more readily establish the threshold interest for procedural due process challenges where agency conduct obstructs access to statutory procedures (especially motions practice).

  • Limits on the BIA’s ability to add requirements to VAWA reopening.

    The court’s reading of 8 U.S.C. § 1229a(c)(7)(C)(iv)(II) constrains the agency from demanding that Form I-360 be filed before reopening when the statute permits filing after reopening and only requires a copy in the motion.

  • Practical consequences for immigration courts.

    Immigration courts may need clearer protocols where e-filing is unavailable or rejected, including acceptance of paper submissions and documentation of attempted filings, because procedural breakdowns can now produce reversals on constitutional grounds.

IV. Complex Concepts Simplified

Motion to reopen
A request to restart immigration proceedings after a final decision, usually to present new evidence or pursue new relief. The INA generally allows one such motion, and strict time limits often apply.
VAWA reopening deadline
A special rule that extends the time to file a motion to reopen to one year for domestic-violence survivors and may allow late filing when circumstances warrant. It is designed to account for barriers survivors may face in seeking legal help.
Procedural due process (Fifth Amendment)
The constitutional requirement that the government provide fair procedures before depriving someone of protected interests. In this case, the protected interest was not “winning reopening,” but having the legally guaranteed opportunity to file the motion.
Fundamental unfairness + prejudice
The Fourth Circuit’s framework for due process claims in immigration proceedings: (1) identify a serious procedural defect making the process unfair, and (2) show the defect likely mattered to the outcome.
“Final order of removal” and timeliness
Deadlines often run from when a removal order becomes “final,” which may be when the BIA affirms the order or when the time to appeal expires. The opinion flags that the “finality” date can be legally significant to whether a motion is late at all.

V. Conclusion

Dwayne Burey v. Todd Blanche holds that the INA’s “right to file” one motion to reopen is a cognizable interest protected by procedural due process, and that an immigration court violates due process when it prevents timely filing—through e-filing barriers and clerk refusal—and then denies the motion as untimely. The decision also reinforces that the BIA may not impose extra-statutory prerequisites on VAWA reopening (such as requiring prior filing of the I-360 when the statute allows filing after reopening). In practical terms, the opinion pushes immigration adjudication toward a core principle the court stated plainly: access to filing is a prerequisite to merits adjudication, and “filing a motion should not be a game of gotcha.”