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United States District Court, S.D. New York

June 29, 2004.

JOHN DOE,[fn1] Petitioner,

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 1975.

  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 at 3.


  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 criminal records:

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.
(Emphasis supplied).
Eligibility for deportation does not fit into any of the above categories.

  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.



 *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:

  Letter from AUSA Brackney to the Court of 4/20/04, Attachment at 4.

 *fn8 The added language is:

  Letter from AUSA Brackney to the Court of 4/20/04, Attachment at 5.

  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 (last visited 6/25/04).

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