Federal Felony Expungement

New York Criminal Immigration Lawyer

If you have been convicted of a crime, you may want to conceal your records from friends, relatives, a prospective employer, lender, or landlord. A criminal record can prevent you from getting a good job, a loan, or a lease. Employers and landlords can easily have access to your criminal record when they try to check and see if you have a clean slate.

How long does a felony stay on your record?

A felony remains on an individual’s records forever, until and unless it is “expunged”. This creates severe collateral consequences for any individual.

Expungement is the process of sealing arrest and conviction records. After your records are expunged, they will no longer be accessible to the public.

How to get a felony expunged

Almost every state has enacted laws allowing citizens to expunge arrests and convictions from their records. The requirements vary from State to State, but generally an expungement is available only after a few years after completion of a criminal sentence, including any term of probation.

Can a federal felony be expunged?

There is no federal expungement law. The only federal expungement available is for convictions of small drug possession for first offenders. This special expungement process is allowed by 18 U.S.C. 3607 (c), also known as the Federal First Offender Act.

Given the absence of laws authorizing courts to expunge federal criminal records except pursuant to the Federal First Offender Act, some federal courts have held that expungements nevertheless may be granted pursuant to a court’s inherent powers or subject to the exercise of ancillary jurisdiction.

Federal Courts within the Second, Fourth, Fifth, Seventh, Tenth, and D.C. Circuits recognize jurisdiction for expungement motions on equitable grounds pursuant to the courts’ inherent powers. In asserting the existence of ancillary jurisdiction, these Court have adopted the balancing test designed by Court in United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004), which held that:

"Records relating to a person’s criminal conduct are vital tools to law enforcement and are…essential to the computation of sentences under the United States Sentencing Guidelines. Other evidence of the weight of the public interest can be seen in the long tradition of open proceedings and public records, which is the essence of a democratic society. To outweigh that interest, “unwarranted adverse consequences” must truly be extraordinary. The phrase does not refer to adverse consequences which attend every arrest and conviction. Those are unfortunate but generally not considered unwarranted adverse consequences. It is possible, even likely, that any person with an arrest or conviction record may well be impeded in finding employment. As the Court of Appeals for the Ninth Circuit has stated, if employment problems resulting from a criminal record were “sufficient to outweigh the government's interest in maintaining criminal records, expunction would no longer be the narrow, extraordinary exception, but a generally available remedy.”

New York falls within the Second Circuit. And just recently, the U.S. District Court for the Eastern District of New York asserted ancillary jurisdiction in deciding to expunge the federal records of a woman that was convicted for healthcare fraud. See Doe v. U.S., 110 F.Supp.3d 448 (2015).

In that case, petitioner had committed offense 17 years before the application for expungement, and had never been rearrested since then. Further, petitioner demonstrated a dramatic adverse effect on her ability to maintain employment, had strong desire to work, and fraud conviction was unrelated to healthcare field in which she sought employment.

UPDATE: THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT RULED THAT A DISTRICT COURT HAS NO JURISDICTION TO EXPUNGE A CRIMINAL RECORD. Read the full decision here.

If you have a New York federal felony conviction, please contact my office to see if you can file a petition for expungement.

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