ESTA CIMT non-declaration and future impacts

[fcat 79]

A caution does not exist in the us, but does in the uk- basically a formal warning designed for first/lesser offences to avoid court. It requires an admittance of the offence, is recorded as a criminal record but is NOT a conviction, but WILL show up on the uk ACRO police certificate.

I have one single caution from 13yrs ago- it showed as no live trace on my police certificate issued in september 2012, so expect it to show up. Even if it didnt, lying and concealing it would be inadvisable and could have really serious consequences in the future if it were ever to come to light. The London embassy is used to the concept of cautions and dealing with them with regards to visas.

In my case, it was not a crime classed as moral turpitude,and was a minor offemce (the same offence is classed as a misdemeanor in the US) so no extra hassle or delays.

Also apply to the force involved for a Subject Access Report- the cost of this is £10 and it will detail everything, right down to the serial number of your dna sample and fingerprints.

What is the exact offence you were arrested/cautioned for?

If the max sentence for that offence is 1 year or less, and that was your only indiscretion with the law, you should be fine as you are not classed as inadmissable (INA 212 exceptions to part (2)) and you would not require a waiver on criminal grounds.

I believe a summary conviction for theft carries a max sentence of 6 months, so you may in fact, be in the clear and be worrying over nothing.

I am not a lawyer- i just looked into this in great detail when i first went to the US and was thankful that i never needed to obtain a visa and could travel legally under the VWP despite my arrest and caution. Had i blindly followed the embassy advice (as many do) with regards to arrests etc instead of looking at actual legal bumph, it would have been an unnecessary hassle.

As always, the devil is in the detail.

You're saying not to lie on any forms(which i completely agree with) So how did you get around when it asks on the VWP form if you have ever been arrested ? as surely if you have a caution then you have been arrested ?

Edited February 21, 2013 by fcat

[mindthegap 2,601]

You're saying not to lie on any forms(which i completely agree with) So how did you get around when it asks on the VWP form if you have ever been arrested ? as surely if you have a caution then you have been arrested ?

I am saying that to the letter of the law-in this case INA 212- with a single conviction/caution(which is an admittance of that offence) for a crime involving moral turpitude which carries a maximum sentence of less than 1 yr, you are not inadmissable, do not require a visa to travel, and you can travel under the VWP.

If that is the case here, then no offence has been committed and it should not cause problems further down the line for a future K-1/CR-1 visa.

My reference to not concealing or withholding the arrest&caution (should for some reason it not show on the ACRO certificate), was with regards to any K-1/CR-1 visa application in the future.

[fcat 79]

What I'm referring to though is you said:

"I have one single caution from 13yrs ago- it showed as no live trace on my police certificate issued in september 2012"

" when i first went to the US and was thankful that i never needed to obtain a visa and could travel legally under the VWP despite my arrest "

Did you check the box to say you had been arrested on the VWP document ?

Edited February 21, 2013 by fcat

[mindthegap 2,601]

What I'm referring to though is you said:

"I have one single caution from 13yrs ago- it showed as no live trace on my police certificate issued in september 2012"

" when i first went to the US and was thankful that i never needed to obtain a visa and could travel legally under the VWP despite my arrest "

Did you check the box to say you had been arrested on the VWP document ?

Gotcha.

My truthful and correct answer to that question (both on the old green I-94W and the online ESTA)was no: my arrest & caution was for a single offence, not involving moral turpitude or a controlled substance, and that carried a maximum sentence of less than 1 year.

Edited February 21, 2013 by mindthegap

[fcat 79]

Gotcha.

My truthful and correct answer to that question (both on the old green I-94W and the online ESTA)was no: my arrest & caution was for a single offence, not involving moral turpitude or a controlled substance, and that carried a maximum sentence of less than 1 year.

Ok thanks, only reason i ask is i have three cautions for very minor offenses, one from 1984 (i was 17) one from 1998 and one from 2000, however i have always checked the NO box to arrests, convictions on the VWP/ESTA

But my police certificate says NO TRACE and there no records on the PNC request!!

[mindthegap 2,601]

To the OP (my bolding)

INA act 212:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

(2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

_____________________________________

Theft act 1978 (amendments to the act in 1996 have no bearing on sentencing).

http://www.legislation.gov.uk/ukpga/1978/31/introduction

http://en.wikipedia.org/wiki/Theft_Act_1978

And the part regarding sentencing:

http://www.legislation.gov.uk/ukpga/1978/31/section/4 - summary conviction carries a maximum sentence of 6 months.

If it was an offence under the theft act you were arrested & cautioned for (which is indeed a CIMT) but you have no other cautions/convictions, then you are in the clear as i see it and are legally able to use the VWP.

[mitch48 4]

Thanks Mindthegap, I appreciate your input.

I researched shoplifting though and I found that the maximum prison term is actually 7 years. This seems slightly ridiculous that there isn't some kind of "grading" involved, I only stole something worth £5 (interestingly, the morally inspiring policeman said "if you're going to steal something, you might as well steal something big like a car" but that's beside the point).

I'm sure it was relatively impossible for a first time offended like me to get over 1 year prison sentence for stealing something worth £5, but the fact is that shoplifting itself carries a maximum sentence of 7 years.

So I'm not sure if it counts under the petty exception rule - however I have read of others who were approved for stealing multiple CDs not so long ago (and crossed the Canada border with "no" on the green form).

[mindthegap 2,601]

Thanks Mindthegap, I appreciate your input.

I researched shoplifting though and I found that the maximum prison term is actually 7 years. This seems slightly ridiculous that there isn't some kind of "grading" involved, I only stole something worth £5 (interestingly, the morally inspiring policeman said "if you're going to steal something, you might as well steal something big like a car" but that's beside the point).

There is a form of 'grading' involved...I shall explain.

You will see in the statute a breakdown of sentencing, one will be for conviction upon indictment (crown court), and the other will be summary conviction (magistrates court).

You are correct that for theft, the maximum sentence when convicted on indictment (crown court) is higher - it is for all offences as it is more serious in crown court.

However, what is relevant here is the maximum sentence upon summary conviction (magistrates court which would normally be applicable for a first offence), which in the case of theft is 6 months.

As a perfect example of this for comparison, the offence I was arrested & cautioned for carries a maximum sentence of 6 months upon summary conviction (magistrates court), but a maximum sentence of five years when convicted on indictment (crown court), so I speak from direct experience here.

I am confident that you are in the clear.

[cocoanud 0]

Hi,

I have a similar situation. Or maybe different, I am utterly confused.

Facts/events in chronological order...

- UK resident on ILR

- Stopped by unmarked police vehicle while driving

- Roadside breath test indicated drink-driving

- Was "arrested", taken to the police station for further confirmation via another breath test

- Was made to do another breath test on a much larger breath analyzer

- No surprise, alcohol detected, BUT under permissible limits

- No convictions, No points on the driving license, No fines

- Needed to travel to US on a business visa

- Obtained ACRO, which came back with "No Trace"

- Got a 10 year B1/2 visa

- Travelled to US

- Became a British Citizen within 2 months of return from US and received British Passport

(Travelling to US and be be becoming a British Citizen are totally unrelated btw)

- The 10 year US Visa is on a passport issued by a country which does not recognise dual citizenship

The question based on the above, am I eligible to travel under VWP or not ? Or should I apply for the US Visa once again ???

Thanks

--

Cocoa Nud

[Nich-Nick 3,354]

So I would be grateful if anyone could point me in the direction of some case studies, or provide any useful information which isn't based on shame/blame.

Many thanks.

I thought of two that got visas in London immediately after their interview, despite having CIMT. Took all day for those names to bubble up in my brain :/

Here's links, and you can search for other posts they may have made. They had used VWP to visit the US.

The shoplifter

http://www.visajourney.com/forums/topic/311223-has-anyone-not-needed-a-waiver-with-cimt/

The tax disk switcher. (Car with valid tax disk wouldn't start. Car that would run had expired tax disk.)

http://www.visajourney.com/forums/topic/318062-visa-approved/#entry4764008

[mitch48 4]

Hi Nich-Nick,

Thanks for finding my post and giving these details - really interesting.

My current resolve is that legally, I should be ok. To my knowledge (based on a lot of research), my one-off caution for a CIMT falls under the petty offense clause, therefore wouldn't prevent me from a visitor visa. Because of that, my misrep isn't technically a misrep because its immaterial, and si can't satisfy the criteria that I withheld something for a visa benefit. The VWP doesn't give a benefit (except saving the hassle of an interview, but that doesn't count).

If I get denied, it will be because they a) feel like it or b) are trying to stop me to help with their own targets. But I'll hopefully overcome it.

It seems such a grey area, and there is also a whole lot of misinformation about this on the internet. I have read countless forum posts of people in similar situations where many replies can be found saying "you're screwed" etc, which is simply not true. So if anyone else IS in my situation, do your research, read mindthegaps advice above, and don't be put off by any negative scare-mongering. Case studies also help, of which posts like Nich-Nicks above are really appreciated..

[Ellio 1]

Hi Mitch48, what mindthegap just said above is absolutely correct. I have just recieved a denial on a 221g pending the subject access report. I have had my head around this kind of scenario for the last month almost and have covered a lot of info. some of which is pretty hard to find. I feel ok now though because whatever happens I am prepared for, even if it takes years.

What mindthegap is explaining is called the 'petty offence exception' and is only useable under the exact criteria which he has explained. However, where you may very well run into problems is when you are filling out your visa questions you will obviously be fully open and honest and tick yes about the CIMT. Now if someone through the process decides to cross reference your ESTA application with your VISA application they could deny you based on immigration fraud from the misreprestation on the ESTA (the fact that you are there now on the wrong visa is fraud). However (again) for you to have committed immigration fraud through misrepresentation you would have had to willingly and knowingly lied on your ESTA. The answer to that is of course you never willingly or knowingly lied on anything you simply didn't understand the term CIMT. Albeit in its self ignorance of the law is no excuse I found cases where denials were eventually overturned based on the many misunderstandings of the term CIMT. In the end it will come down to how serious the crime is considered if you have to appeal a denial.

If I had to do this process again I would definitely use a US immigration lawyer if you have a CIMT. Otherwise you will risk the chance of the denial from the cross reference of ESTA V VISA application and most likely a long appeal process that I have read can take years.

Good luck when the time comes

[Ellio 1]

This is a good read and took me ages to find but it cleared a lot up for my peace of mind.

This guy was from Ireland and had quite a serious criminal history. It took a few years but eventually they were together. More importantly it covers 'misrepresentation' in detail and how they overcame it.

https://95795ca1-a-798a15c4-s-sites.googlegroups.com/a/us-visa.co.uk/beta/Articles/inadmissibility-and-waivers/Willful%20Misrep%20and%20CIMT--redacted.pdf?attachauth=ANoY7coLGZDNww_YqN1veD2La_8xibSvJamJsUcxS1O3lAeEozJtQyC37vg3nYg5j8VYI0yajBAoaospHvqTD2k96rl4MowM2lhp0ARbAuH5VEkzc8v8LUDcKgiGX1GvDZXQ8nZHYRBPcjFnZYLcAlPquaaCrPWkS5TOBF_OxpOeHV1HAvlNSY4Qg5hw_4JrstGxrWOMKg-dbVPclO6F8COPyLFihGKNo92olcnJiBbcX5z5fxT2hHep72MIeiGwq78rWHvDy4Np-uAGv5hkcRhC5WJVXpp8hMlyXI2MWBU49tvlfWZNWog%3D&attredirects=0&d=1

Edited May 10, 2013 by Ellio

[Rebecca Jo 1,962]

This is a good read and took me ages to find but it cleared a lot up for my peace of mind.

This guy was from Ireland and had quite a serious criminal history. It took a few years but eventually they were together. More importantly it covers 'misrepresentation' in detail and how they overcame it.

https://95795ca1-a-798a15c4-s-sites.googlegroups.com/a/us-visa.co.uk/beta/Articles/inadmissibility-and-waivers/Willful%20Misrep%20and%20CIMT--redacted.pdf?attachauth=ANoY7coLGZDNww_YqN1veD2La_8xibSvJamJsUcxS1O3lAeEozJtQyC37vg3nYg5j8VYI0yajBAoaospHvqTD2k96rl4MowM2lhp0ARbAuH5VEkzc8v8LUDcKgiGX1GvDZXQ8nZHYRBPcjFnZYLcAlPquaaCrPWkS5TOBF_OxpOeHV1HAvlNSY4Qg5hw_4JrstGxrWOMKg-dbVPclO6F8COPyLFihGKNo92olcnJiBbcX5z5fxT2hHep72MIeiGwq78rWHvDy4Np-uAGv5hkcRhC5WJVXpp8hMlyXI2MWBU49tvlfWZNWog%3D&attredirects=0&d=1

I know a good deal more about that story than you do. And it certainly was not easy for the parties involved. The decision you are looking at was the end result of long arduous process. First the visa was denied; then the waiver was denied. The appealed decision you have linked took more than two years AFTER the waiver denial to achieve. It also required the assistance of a very expensive attorney.

[Ellio 1]

Hi Rebecca and thanks for putting that appeal out there for people to reference. It is a source of inspiration for those who may end up facing those circumstances or similar. I was worried about my circumstances but after many many hours of researching I am more settled now and just waiting on my SAR to hopefully move forward once again.