Federal Expungement: Plaintiff Must Show Concrete Harm

It must be clarified from the outset of this article that the term expungement in the context of this article means destruction of records – and that the federal court denied the request. In other words, if the reader hopes this article will lay a roadmap of how to have one’s federal criminal conviction expunged, as is available in a California court, the reader will be disappointed.

Nonetheless, we present this article because the published decision does offer insight into the high standard that federal law sets for an order to destroy certain records.

From 2018 through 2019, a migrant caravan comprised of tens of thousands of people approached the southern border of the United States. The reader may recall this, as it was in the news quite a lot. Migrants came from Guatemala, Honduras and Mexico and traveled by foot and eventually did reach the southern border of the United States.

In response, Customs and Border Protection (CBP) organized a surveillance program called Operation Secure Line. In coordination with Immigration and Customs Enforcement (ICE) and the Federal Bureau of Investigation (FBI), as well as with “state and local law enforcement partners, non-law enforcement organizations, and Mexican law enforcement officials.”

As part of Operation Secure Line, CBP gathered information on individuals it believed were associated with the migrant caravan. CBP used both open source information available to the public, such as media reports and social media pages, as well as preexisting law enforcement databases, which were not publicly available.

In connection with its effort to provide border security officers with information about the caravan, CBP used the information it gathered to prepare a PowerPoint presentation with the names, photographs, date of birth and citizenship status of 67 individuals. The presentation also indicated each person’s alleged role in the caravan and whether the person had been interviewed by government officials. A CBP official presented the PowerPoint at a weekly command staff meeting in January 2019.

Subsequently, an ICE agent who was not involved in the caravan response discovered the presentation on a government computer system and leaked it to the media.

Nora Phillips, Erika Pinheiro and Nathaniel Dennison were three of the 67 individuals named in the PowerPoint presentation. Each was stopped by border patrol agents as they attempted to enter the U.S. at the U.S. – Mexico border. Phillips and Pinheiro are attorneys employed by Al Otro Lado, an organization that “provides services to immigrants.”

In January 2019 Phillips attempted to take a family trip to Mexico. Upon her arrival at the airport in Guadalajara, Mexico, Mexican immigration officials informed her that there was an alert as to her passport. Two hours later, she was informed that Mexican immigration would not permit her to enter Mexico, and she returned to the United States the following morning. Phillips did not identify any evidence that the United States government was responsible for the alert.

In August 2019, Phillips attempted to travel to Mexico at the San Ysidro port of entry and was turned away by Mexican officials due to an alert on her passport. However, she was permitted to enter the next day and approved for a one-year temporary residency by the Mexican government. CBP subsequently approved her application for a SENTRI (Secure Electronic Network for Travelers Rapid Inspection) pass.

Erika Pinheiro’s evidence and Dennison’s evidence were similar.

These three plaintiffs sued the federal agencies in Nora Phillips, et al. v. U.S. Customs and Border Protection, et al., involved in Operation Secure Line (CBP, FBI and ICE) and several officials in their official capacity, alleging that the government violated all three plaintiffs’ First Amendment rights of free speech and free association because the government “collected and maintained records describing Plaintiffs’ First Amendment protected activity,” namely their conduct relating to “charitably supporting migrants traveling through Mexico to seek asylum in the United States.” The complaint sought an injunction ordering the government “to expunge all records unlawfully collected and maintained about plaintiffs, and any information derived from that unlawfully obtained information.”

The district court granted the government’s motion for summary judgment on the grounds that plaintiffs lacked standing to seek prospective injunctive relief and expungement of the records with respect to both their claims.

Plaintiffs appealed this ruling to the United States Court of Appeals for the Ninth Circuit in Pasadena.

The Ninth Circuit affirmed the District Court, noting that there was no evidence linking the border encounters of each plaintiff with the leaked information and moreover, retention of records may constitute a concrete injury to establish standing if there is also a recognizable injury such as a material risk of future tangible harm, violation of privacy, or a constitutional violation. Spokeo v. Robins (2016) 578 U.S. 330, 340. However, here no plaintiff could establish such a concrete injury to support the injunction sought.