United States District Court, S.D. New York
June 29, 2004.
JOHN DOE,[fn1] Petitioner,
IMMIGRATION AND CUSTOMS ENFORCEMENT,[fn2] Respondent.
The opinion of the court was delivered by: HAROLD BAER, JR.[fn3], District Judge [fn3] Lauren Yates, a summer 2004 intern in my Chambers and second-year law student at the Benjamin N. Cardozo School of Law, provided substantive assistance in the research and drafting of this Opinion.
*fn1 Although petitioner did not request the use of a pseudonym,
we will use it to preserve the effectiveness of this order to
expunge. United States v. Doe, No. 71 Cr. 892, 2004 WL 1124687,
at *1 n. 1 (S.D.N.Y. May 20, 2004); United States v. Doe,
935 F. Supp. 478, 479 n. 1 (S.D.N.Y. 1996).
Petitioner John Doe ("petitioner" or "Doe") moves by Order to
Show Cause to have portions of his criminal record expunged. For
the reasons set forth below, petitioner's motion is granted.
A. Doe's Immigration History
On April 9, 1971, Doe, a Cambodian native, entered the United
States on a visitor's visa. He later applied for and was awarded
a student visa, which expired on September 27, 1972. In or about
August 1972, an application was filed on Doe's behalf seeking
lawful permanent resident status. Immigration and Customs
Enforcement ("ICE") denied this petition on or about January 3,
1975, because Doe did not appear for a scheduled medical
examination and interview (Doe denies receiving notice of this
appointment). At the time his application was denied, ICE
informed Doe that a failure to depart the United States by
February 3, 1975 would result in the institution of deportation
proceedings. Regardless, Doe continued to reside in the United
States after February 3, 1975. On or about May 1, 1975, Doe applied for political asylum as a
refugee.*fn2 Around this time, Doe's fingerprints were
transmitted from the ICE to the Federal Bureau of Investigation's
("FBI") National Crime Information Center ("NCIC"), and Doe's
NCIC record (referred to as "criminal record" herein) was altered
to reflect that he was "arrested or received" by the ICE on April
30, 1975 on the charge of overstaying his visitor's visa. The
annotation "depor proc" (connoting that Doe was subject to
deportation proceedings) was also added.*fn3 Approximately
one year later, on or about July 14, 1976, Doe's application for
refugee status was approved and he became a lawful permanent
resident. Subsequently, on December 7, 1984, Doe was naturalized
as a United States citizen and, as a result, his ICE file was
closed. It is undisputed that at no time on his thirteen-year
path to American citizenship was Doe ever arrested or detained,
nor was he ever placed in deportation proceedings.
In or about September 2001, Doe applied for the position of
police officer with the Metropolitan Police Department of the
District of Columbia ("MPDC"). His application was denied "due to
his arrest in 1975." Letter from Inspector Moore of MPDC to Doe
of 9/11/01 at 1. Around this time, Doe also applied to become a
police officer with the Baltimore Police Department. This
application was also rejected because of the March 4, 1975 entry
on his criminal record. Doe asserts that before the denial of
these applications, he was never notified and thus unaware of any
entry on his criminal record pertaining to an alleged arrest in
B. Procedural History
Doe commenced this proceeding pro se in September 2002 and
sought to have any reference to an arrest expunged from his
criminal record. On September 18, 2002, Judge Patterson granted
Doe's Order to Show Cause, and on October 21, 2002, a conference
was scheduled by this Court with Doe and AUSA Michael Krauss. At the
conference, AUSA Krauss indicated that he would "investigate the
matter and attempt to resolve [Doe']s complaints." Letter from
AUSA Brackney to the Court of 4/20/04 at 1. On or about October
22, 2002, AUSA Krauss sent a letter to the Baltimore Police
Department ("BPD") stating that although the ICE "does not wish
to expunge its records" and Doe was correctly "charged" by the
ICE with remaining in the United States on an expired visa, he
was never the subject of criminal charges, or deportation
proceedings. Letter from AUSA Krauss to Detective Siegmund of BPD
of 10/22/02 at 1. The letter then relates the details of Doe's
immigration history, including the approval of his application
for political asylum and his subsequent naturalization.
In a continuing effort to right this wrong, AUSA Krauss, in
coordination with the ICE, caused new information to be added
Doe's criminal record. This addition reflected the fact that
although Doe overstayed his visa, he was eventually granted
asylum, lawful permanent residency status, and was ultimately
naturalized.*fn4 Irrespective of these efforts, the
Baltimore Police Department continued to reject Doe's application
because of the arrest notation on his criminal record.
On or about November 18, 2002, Brian Meyers, District Counsel
for the ICE, wrote a letter on behalf of Doe to the Baltimore
Police Department stating that Doe was "neither apprehended nor
detained by the [ICE] at any time" but that "his unauthorized
presence in the United States, was transmitted to the FBI
pursuant to standard procedures." Letter from District Counsel
Meyers to Detective Siegmund of BPD of 11/18/02 at 1. District
Counsel Meyers reiterated the details of Doe's immigration
history. Despite these actions, Doe's application was
nevertheless rejected once again by the Baltimore Police
Department, allegedly because of the continuing presence of the
arrest notation on his criminal record.
In or about January 2004, Doe retained present counsel, Henry
J. Steinglass, Esq., who communicated to the ICE that Doe was
unsatisfied with the corrections made to his criminal record.
Thereafter, Doe requested another pre-trial conference before
this Court and sought to have the language stating that he was "arrested or received" and
subject to "deport[ation] proc[eedings]" expunged from his
criminal record. Letter from Steinglass to the Court of 4/21/04
Pursuant to 28 U.S.C. § 534(a)(1), the Attorney General is
charged with the acquisition, retention and dissemination of
criminal records. United States v. Doe, 935 F. Supp. 478, 480
(S.D.N.Y. 1996). No similar statutory authority exists for the
expungement of criminal records. United States v. McFadzean,
No. 93 Cr. 25, 1999 WL 993641, at *2 (S.D.N.Y. Nov. 2, 1999).
Rather, the Second Circuit has held that the power to expunge
arrest and conviction records "lies within the equitable
discretion of the court." United States v. Schnitzer,
567 F.2d 536, 539 (2d Cir. 1977). To determine whether to expunge is
appropriate, "[t]he Government's need to maintain arrest records"
is balanced against "the harm that the maintenance of arrest
records can cause citizens." Id. The standard is "extremely
stringent," Doe, 935 F. Supp. at 480, "and should be reserved
for the unusual or extreme cases," Schnitzer, 567 F.2d at 539.
"Extreme cases" typically include instances of Government
malfeasance "where procedures of mass arrests rendered judicial
determination of probable cause impossible, where the court
determined the sole purpose of the arrests was to harass civil
rights workers, where the police misused the police records to
the detriment of the defendant, or where the arrest was proper
but based on a statute later declared unconstitutional." Id. at
540. Similarly, courts in other circuits have held the inaccuracy
of records to be a sufficient basis to expunge. Chastain v.
United States, 510 F.2d 1232, 1236 (D.C. Cir. 1975) (determining
"there may remain a right [to expunge where] the information is
inaccurate"); Doe v. United States, 964 F. Supp. 1429, 1433
(S.D. Cal. 1997) (finding criminal records may be expunged if
"the information is inaccurate"). Finally, since the
appropriateness is determined on a "case-by-case" basis, some
courts have even granted expungement where an arrest or
conviction was valid and no misconduct was involved so long as
sufficient "extraordinary circumstances" existed. United States
v. Doe, 935 F. Supp. 478, 481 (S.D.N.Y. 1996) (holding that
"extreme circumstances" sufficient to expunge were present where
the defendant was convicted 20 years earlier under the Youthful
Corrections Act, 18 U.S.C. § 5005 et seq., had no subsequent
incidents with the law, was gainfully employed since that time,
and demonstrated that the conviction record had an actual
negative impact on his employment status). An analysis of all cases considering the
issue makes it clear that expungement is an extreme and rare
remedy. McFadzean, 1999 WL 993641 at *3. Despite this demanding
standard, petitioner here has carried his burden.
A. The Government's Interest
The Government has failed to establish that it has any interest
in maintaining the language "arrested or received" or "depor
proc" on Doe's criminal record. First, the Government admits that
Doe was never arrested nor the subject of deportation
proceedings. Letter from AUSA Brackney to the Court of 4/20/02 at
2 ("Doe was not in fact arrested"); Letter from District Counsel
Meyers to Det. Siegmund of 11/18/02 at 1 ("There is no evidence
that [Doe] was arrested or detained by the [ICE], nor that
deportation proceedings were ever commenced against him"); Letter
from AUSA Krauss to Det. Siegmond of 10/22/02 at 1 ("[Doe] was
never the subject of any criminal charges . . . [Doe] was not
placed in deportation proceedings."). Nonetheless, the Government
asserts that the notation "arrested or received" is accurate with
respect to Doe's criminal record because "[Doe] overstayed his
visa and that as a result, the [ICE] targeted him for deportation
proceedings, as reflected by the notation "arrested or received
for deportation." Letter from AUSA Brackney to the Court of
4/22/04 at 2.
The Government argues that "[t]he presence of the disjunctive
`or' indicates the words `arrested' and `received' have
distinctive meanings" and that the term "received" is accurate
because it signifies "that the [ICE] entered information relating
to his illegal presence in the United States into its system."
Letter from AUSA Brackney to the Court of 5/17/04 at 3.
Curiously, the Government suggests that Doe "was `received' in
the sense that the [ICE] came into possession of information
regarding his illegal status" and therefore "his NCIC record is
accurate even though he was never taken into physical custody."
Id. (emphasis supplied). The Government offers the common
dictionary definition of "received" in support of this
construction: "[t]he word "receive" means, inter alia, "to come
into possession of," "to act as a receptacle or container for,"
"to assimilate through the mind or senses," "to permit to enter,"
or "to react to in a specified manner." Id. (quoting Merriam
Webster's Ninth New Collegiate Dictionary 982 (1987)).
Doe argues that "`[a]rrest' refers to the initial taking of a
person into custody to answer a charge whereas `received' refers
to processing upon arrival at a jail or prison." Letter from Steinglass to the Court of 5/19/04 at 1 (emphasis supplied);
United States v. Morris, No. 84 Cr. 410-1, 1985 WL 861, at *1
(N.D. Ill 1985) (concluding that the defendant was in state
custody because of an entry in his criminal record that noted he
was "received" by the Georgia Department of Offender
Rehabilitation); see also Bennett v. Pernecke, No. 03 Cr. 5071,
2003 WL 22836407, at *2 (N.D. Ill. Nov. 25, 2003) (observing that
a notation on defendant's "rap sheet" showed he was "received at
Joliet Penitentiary"). The language of the Code of Federal
Regulations subsection that defines the FBI's identification
record ("criminal record") is consistent with this analysis.
28 C.F.R. § 16.31 ("the [criminal record] includes the date of
arrest or the date the individual was received by the agency
submitting the fingerprints") (emphasis supplied). The
Government's argument, while creative, is not persuasive. While
the ICE may have entered the notation in good faith, it is at
best misleading and at worst an error that can and has worked to
deprive this petitioner and perhaps many other men and women from
gainful employment of their choice.
Finally, there are compelling arguments as to why information
regarding an individual's immigration status, unrelated to an
arrest or law enforcement action, should never be reported to the
FBI for inclusion in the individual's criminal record. The
Government argues that an individual's immigration status may be
reported to the FBI for inclusion in the individual's record.
Letter from AUSA Brackney to the Court of 5/17/04 at 2. The
Government explains that ICE maintains an internal database, into
which a person's immigration data is entered. This info is then
transmitted to the Interagency Border Inspection System ("IBIS"),
which is maintained by a collective of twenty-three government
agencies that engage in border patrol activities. INS Inspector's
Field Manual § 31.4(e)(1). According to the Government, this
information is then transmitted from IBIS to the FBI for
inclusion in the NCIC, although it is unclear how and when this
occurs. Letter from AUSA Brackney to the Court of 5/17/04 at 2.
The Government contends that the entry of information of an
alien's illegal status into the ICE database is mandatory.
However, the INS Inspector's Field Manual § 31.5(a)(5), which
lists the criteria for the "Posting, Maintaining, and
Cancellation of Lookouts" reads, "[l]ookout records for persons
and/or stolen passports may be created in the Service lookout
system . . . for any person who overstays." (Emphasis supplied).
Furthermore, while the Government has provided the Court with the
above summary explaining how immigration information reaches the FBI, it offers no justification as to why that information is
required or permitted to be added to the NCIC database. By
contrast, 28 C.F.R. § 16.31 supports the conclusion that
non-criminal immigration materials should not be included in
An FBI identification record, often referred to as a
"rap sheet," is a listing of certain information
taken from fingerprint submissions retained by the
FBI in connection with arrests and, in some
instances, includes information taken from
fingerprints submitted in connection with federal
employment, naturalization, or military service. The
identification record includes the name of the agency
or institution that submitted the fingerprints to the
FBI. If the fingerprints concern a criminal offense,
the identification record includes the date of arrest
or the date the individual was received by the agency
submitting the fingerprints, the arrest charge, and
the disposition of the arrest if known to the FBI.
Eligibility for deportation does not fit into any of the above
The inclusion of immigration status unrelated to an arrest or
law enforcement action in a database designed for the retention
of criminal records seems not only counterintuitive, but creates
the possibility of unique damage to both the alien and law
enforcement agencies. In a post-September 11, 2001, world driven
by fears of foreign terror, we too often forget that "an
immigration charge is not a criminal charge." Letter from AUSA
Krauss to Detective Siegmund of BPD of 10/22/02 at 1. It is
unlikely that the lay employer or other person of authority with
access to an arrest record would have the wherewithal to make
such a distinction. As has been said in other cases where request
to expunge are granted, "there is a limit beyond which the
Government may not tread in devising classifications that lump
the innocent with the guilty." Menard v. Mitchell,
430 F.2d 486, 492 (D.C. Cir. 1970).
The expungement standard is so rigorous because of the vital
role that criminal records play in effective law enforcement.
United States v. Morelli, No. 91 Cr. 639, 1999 WL 459784, at *1
(S.D.N.Y. June 30, 1999) ("The policies underlying retention of
criminal records encompass not only the immediate needs of law
enforcement for identification and reference in future criminal
proceedings, but also punishment and deterrence, as well as
public informational needs as appropriate."). However, the
perpetuation of an inaccurate arrest record does little to
"fulfill the compelling public need for an effective criminal
identification procedure" or "promot[e] effective law
enforcement." United States v. Rabadi, 889 F. Supp. 757, 759
(S.D.N.Y. 1995). Given the unique current role of immigration records in national
security, it seems particularly important that the Government
maintain only clear and accurate records of this nature. The
removal of the inaccurate language from Doe's record can only
improve accuracy and promote more effective law enforcement.
B. Harm to Doe
In contrast, Doe has proven the substantial detriment he will
suffer if expungement is denied. First, Doe has demonstrated that
he has already been deprived an opportunity for employment with
two police departments apparently solely on the basis of this
inaccurate notation on his rap sheet. Furthermore, Doe fears that
if his current employer should learn of his record, his present
employment may also be in jeopardy. Order to Show Cause of
9/18/02 ¶ 1.
Normally, a request to expunge a criminal record predicated on
economic loss would not be granted. Courts have consistently held
that the negative impact of arrest records on employment is
insufficient to equal the "extreme circumstances" needed to merit
expungement. United States v. Lau, No. MAG.DKT.94-1682, 2003 WL
22698810, at *3 (S.D.N.Y Nov. 14, 2003); see also Schnitzer,
567 F.2d at 540 (holding that a rabbinical student having to
explain his arrest did not justify the expungement of the
record); United States v. Seibel, No. M-65, 1999 WL 681276
(S.D.N.Y. Sept. 1, 1999) (holding harm to defendant's reputation
does not justify expungement); Slansky v. White, No. 96 Civ.
2338, 1996 WL 312401 (S.D.N.Y. June 10, 1996) (holding harm to
potential employment opportunities insufficient to expunge). In
reaching this determination, courts have balanced the substantial
benefits law enforcement gains from retaining arrest records
against the hardship faced by defendants by their maintenance.
The result has always favored the promotion of effective law
enforcement. See, e.g., Schnitzer, 567 F.2d at 539.
But this fact pattern does not fit the case at bar. In those
cases, the arrests were legitimate. Cases where arrests have
been found to be illegitimate, i.e., without probable cause,
sanctions a different standard. For example, in Menard, where
the defendant was arrested without probable cause, the D.C.
Circuit ruled the Government had no interest in maintaining such
records. 430 F.2d at 491, 492. In recognition of the deleterious
effects of arrest records, the Court held that expungement was
the proper remedy. Id. at 490 ("Information denominated in a
record of arrest, if it becomes known, may subject an individual
to serious difficulties. Even if no direct economic loss is involved, the injury to an
individual's reputation may be substantial.").
Here too Doe seeks the expungement of a false arrest record.
However, the illegitimacy of Doe's record goes far beyond the
lack of probable cause. As was noted above, Doe was never
arrested, detained, or subject to any criminal charge. The harm
to Doe, therefore, is particularly severe as "[a]dverse action
taken against an individual because of his arrest record is
premised upon certain assumptions regarding the meaning of an
arrest. Insofar as these assumptions differ from reality, the
adverse actions will have an erroneous basis." Id. at 491.
Therefore, in this unusual case it is obvious that the
significant harm demonstrated by Doe's loss of employment
opportunity far outweighs the non-existent value of an arrest
record reflecting an arrest that never took place.
Furthermore it is important to note that the harmful impact of
arrest records reach far beyond current and future
employment.*fn5 If his request to expunge is not granted,
Doe faces a host of negative side effects that threaten to impact
the quality of his life. For example:
Police . . . use [arrest] records as a means to
identify suspects for unsolved crimes because
statistical experience indicates that persons with
arrest records are more likely than others to commit
offenses. Information concerning prior arrests, when
combined with other factors, also may constitute a
basis for probable cause to arrest a suspect.
Prosecutors frequently consider prior arrests in
determining whether to prosecute a particular person
for an alleged criminal offense. Courts also find
non-conviction criminal history information useful in
determining pre-trial release conditions and
sentences . . . In addition, public agencies
sometimes use arrest records when approving or
denying licenses. Financial institutions may seek
non-conviction criminal records to determine if an
individual is a good credit risk.
Gary T. Lowenthal, The Disclosure of Arrest Records
to the Public Under the Uniform Criminal Record
Records Act, 28 Jurimetrics J. 9, 12 (1987).
In an era where most court records are accessible electronically,
and internet services that offer to uncover any arrest record for
a fee abound, the negative impacts of arrest records as detailed above are drastically heightened.
The Government tried but has failed to address the immediate
harm experienced by Doe, and will be unable to address the
serious ongoing problems the arrest notation may cause here and
in similar cases, past and future. The only appropriate remedy
that guarantees Doe the permanent relief he deserves is the
expungement of the inaccurate language. Therefore, since the harm
to Doe so substantially outweighs that to the Government, and
since the circumstances in this case are so extreme and unusual,
the Court finds that the combination of factors merits the
expungement of the language at issue. Moreover, I refuse to
endorse the inclusion of non-criminal immigration information
into an individual's criminal record absent explicit statutory or
other authority. Consequently, this entry will be expunged in its
entirety. The ICE is instructed to reconsider and correct its
procedure and provide a copy of the change to the Court within 60
days from the date hereof.
For the foregoing reasons, petitioner's motion to expunge his
criminal record is granted. The Government is ordered to remove
all immigration information from Doe's criminal record. In the
event the Government receives any inquiries about the
petitioner's arrest record or deportation proceedings, it shall
not respond in the affirmative on the basis of the expunged
language. The Clerk of the Court is instructed to close this case
and remove it from my docket.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
OPINION & ORDER
*fn6 Doe claims that his petition for asylum was prompted by the
overthrow of the Cambodian Government by the Khmer Rouge. Order
to Show Cause of 9/18/02 ¶ 2. Although not discussed by the
parties, it should be noted that on April 17, 1975, Khmer Rouge
forces gained control of the Cambodian capital, Phnom Penh, and
Pol Pot assumed the position of Prime Minister of Cambodia.
*fn7 The language was as follows:
ARRESTED OR RECEIVED 1975/04/30
AGENCY USINS NEW YORK (NYINSNY00)
AGENCY CASE [DOE'S A NUMBER]
CHARGE 1 DEPOR PROC OVERSTAY VISIT POL ASYLUM APPLIC
ADDITIONAL ARREST DISPOSITION PENDING
CHARGE DEP PROC.
Letter from AUSA Brackney to the Court of 4/20/04, Attachment
*fn8 The added language is:
GRANTED RELIEF 8/30/1983, GRANTED PERM RESIDENCY AND ON 12/7/1984
GRANTED US CITIZENSHIP
Letter from AUSA Brackney to the Court of 4/20/04, Attachment
The disposition is still listed as "pending."
*fn9 It is still important to note exactly how substantial an
arrest record's affects on employment can be: nearly
three-quarters of states have laws permitting all employers and
occupational licensing agencies to ask about and consider arrests
that never led to a conviction in making employment decisions.
The Legal Action Center, A Report on State Legal Barriers Facing
People With Criminal Records, available at