On June 23, 2022, the Firm secured the dismissal of removal proceedings initiated in April 2017 for two pro bono clients. The Firm also previously secured dismissal for a third pro bono client on May 17, 2022, whose removal case was predicated on the same set of facts. The clients were part of a group of nine men who were initially stopped ostensibly for speeding while traveling home to New York from Georgia by a Pennsylvania State Trooper. Upon stopping the group, the State Trooper demanded to see “papers, work permit, visa, passport and ID” from each showing their lawful status. When several individuals, including the Firm’s clients, could not produce documents to his satisfaction, the State Trooper held the group at a nearby rest stop, where they were prohibited from obtaining any food, drink, using the bathroom, or even turning on the vehicle’s air conditioner. During the encounter, the State Trooper called agents from Immigration and Customs Enforcement (“ICE”) and held the Firm’s clients for more than two and a half hours in violation of their Fourth Amendment rights so those ICE agents could respond to determine alienage. The day after this encounter they were placed into removal proceedings.
After several men from the group, including the Firm’s clients, unsuccessfully moved the Immigration Court to suppress the Government’s evidence through prior counsel, the Firm began representing those three who lived in New York in October 2017, and sought reconsideration of the prior Immigration Judge’s decision on the motion to suppress by filing three separate motions to reconsider and reopen. For one client, the Immigration Judge quickly disposed of the motion and ordered the client removed. Simpson Thacher successfully appealed that decision to the Board of Immigration Appeals (“BIA”), where a three-member panel of the BIA sustained the Firm’s appeal that extension of a traffic stop on the basis of race or perceived ethnicity violated the client’s Fourth Amendment right against unreasonable search and seizure and remanded the case to the Immigration Court for the purposes of holding a suppression hearing. The Firm successfully secured a suppression hearing for its other two clients. Subsequent to remand from the BIA, in May 2021 each of the client’s cases were consolidated.
In February 2022, the Firm submitted a request for prosecutorial discretion on behalf of its clients. While the Government agreed to dismiss one of the client’s cases, they also filed motions, which proposed to submit evidence of alienage that was not derived from the traffic encounter for the other two individuals. After full briefing on the Government’s motions, but before the Immigration Judge adjudicated them, upon further negotiations, the Government ultimately decided to approve the prosecutorial discretion requests the Firm had previously submitted, and the Immigration Court granted the parties’ requests for dismissal of the pending removal proceedings for each of the Firm’s clients based on the Government’s exercise of prosecutorial discretion.
The Simpson Thacher team included Associates Stephen DiGregoria and Taylor Sutton, Partner Mike Osnato and Retired Partner Tom Rice. Summer Associate Francisca Johanek and former Counsel Anar Patel, who was recently confirmed as a New York State Court of Claims Judge, provided valuable assistance.