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DOE v. IMMIGRATION AND CUSTOMS ENFORCEMENT

June 29, 2004.

JOHN DOE,[fn1] Petitioner,
v.
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.

I. BACKGROUND

  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.

  II. DISCUSSION

  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 ...


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