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