Another question about ESTA and cimts

[chrisclassic 14]

or do you belive the misrep will come up at the interview about the vwp ????

what im asking is does he still have a chance with his accidental misuse ?

[Boiler 46,015]

If somebody said to me that they 'forgot' about a CIMT then I would think there was something very very odd and wonder what else they had 'forgot' about.

[chrisclassic 14]

well thats filled me with confidence as that is what happened to me i totally forgot about my theft of a traffic cone and caution for it 7 years ago

but apparently you get the exception rule if from most i have spoke too and if im honest filling all forms i was shocked when i got my forms back as i forgot and never thought they would be on there lol

so we shall see it might be waiver time but il keep you updated

[mitch48 4]

well thats filled me with confidence as that is what happened to me i totally forgot about my theft of a traffic cone and caution for it 7 years ago

but apparently you get the exception rule if from most i have spoke too and if im honest filling all forms i was shocked when i got my forms back as i forgot and never thought they would be on there lol

so we shall see it might be waiver time but il keep you updated

Chris, Boiler's answers unfortunately aren't useful or to the point of the discussion here which I think only you seem to be understanding. The whole reason I wrote this thread was to try and avoid the usual negativity which more often than not isn't based on actual evidence or case studies - hence my asking for any direct evidence of a situation like yours not working out. Instead I get the usual "I would assume they were having a laugh" style answer that seems to plague threads like this.

Here's the situation, assuming:

- Your caution is for a CIMT (which it is)

- Its your only caution (thereby falling under exception rule).

The common answer you'll find on threads like this is that a) you should always say "yes" if you have an arrest or else b) you'll get a misrep c) you'll need a waiver later down the line. But I don't believe that is true, because a) I have never seen b) or c) happen to someone in this situation. Yes, they happen when the above assumptions aren't correct, i.e. there are more arrests/cautions/whatever, but not for a simple exception rule. From what I have seen, trawling many similar threads to this.

I believe this is why, I'll list some common misconceptions and ways around them (I'll add here that this is just my opinion, and I'm no lawyer, this is just from research and observation):

- You don't have to tick "yes" for any arrest, on the ESTA, only for a CIMT. It says any arrest on the non-official eligibility test for the ESTA, but not on the actual ESTA. There, it asks if you've been arrested for a CIMT. If you tick "yes", it will then double check that you're sure, offering more help and guidance to assess whether it is a CIMT or not. Being that you can follow a link direct to the ESTA, thereby not even seeing the eligibility test, I believe that the ESTA question (being only about CIMTs) is the relevant one.

- The help and guidance on the ESTA to help you decide whether its a CIMT leads to a document which says:

(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...

Followed by (ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if- (then the exception rule criteria).

Anyhow - my main point is this.

For a misrep to be applied, the following must be true, and these can both be argued against:

Knowingly lied on the ESTA - with the vague definition of CIMTs, and the provision of the above exception rule criteria, it seems exceptionally easy to be led into thinking that your exception rule arrest doesn't need to be classified as a CIMT for the purposes of the ESTA. That the ESTA actively questions your "yes" response and then provides further info to help you decide, is enough to suggest that the definition of CIMT is influenced by, for e.g. the mention of the exception clause.

The misrep led to an immigration benefit - it didn't, as (from what I have read) the VWP doesn't provide an immigration benefit over the visa, which you would certainly have been able to get (remember, naysayers, the assumptions are that the exception rule can be applied - no more arrests or complications etc).

But here's the main point I wanted to make originally, which was the information I was seeking - I haven't found a single case like yours being denied a K1. I don't want to offer false hope mind, but to just say that I haven't seen a single case, among a lot of threads about this. Yes there are some who get denied who didn't fall under the exception clause. There are others who did fall under it who didn't have any problems at visa stage, despite having used VWP.

So before any more negative nitpickers jump in, please bear in mind that my point here is evidence. If you believe any of this is wrong, and would lead to a denial etc, please provide a case study or situation which backs up what you're saying, rather than just saying "nah, you're screwed" etc.

[chrisclassic 14]

see iv heard good things from decent people saying be truthfull get the right documentation

and it shouldnt be a problem i neither have found anyone who had trouble i mean i never even filled for my esta it was my family well step dad and mother with our local travel agent

i said yeah take my passport go and get it

and like i said for one simple caution over a traffic cone <<<<<<<<< honest truth and my only one before you ask it was halloween and i wanted to be a road witch lol police asked where did we get the cone i said a hedge <<<< truth and honestly over 7 years forgot about

[mitch48 4]

see iv heard good things from decent people saying be truthfull get the right documentation

and it shouldnt be a problem i neither have found anyone who had trouble i mean i never even filled for my esta it was my family well step dad and mother with our local travel agent

i said yeah take my passport go and get it

and like i said for one simple caution over a traffic cone <<<<<<<<< honest truth and my only one before you ask it was halloween and i wanted to be a road witch lol police asked where did we get the cone i said a hedge <<<< truth and honestly over 7 years forgot about

I would agree absolutely with getting the right documentation (i.e. for visa interview). No need to compromise, cut corners or be anything but absolutely honest.

The fact that your step dad did your ESTA via a travel agent is immaterial to the fact that the information given was given, but that's beside the point in terms of your concerns.

And never worry about justifying your caution - too much shaming goes on for things like this and at the end of the day, everyone's human. The way I see it, after all this you're far less likely to break the law now than people who have never been arrested who might not fully understand the long term consequences!

[Boiler 46,015]

Chris, Boiler's answers unfortunately aren't useful or to the point of the discussion here which I think only you seem to be understanding. The whole reason I wrote this thread was to try and avoid the usual negativity which more often than not isn't based on actual evidence or case studies - hence my asking for any direct evidence of a situation like yours not working out. Instead I get the usual "I would assume they were having a laugh" style answer that seems to plague threads like this.

Charming.

We were talking in the round, Chris actually later mentioned what the criminal issue was, I do not think you have.

There are plenty of threads about minor cautions.

Still unsure about Chris's actual charge, Theft requires the intention to deprive the owner permanently of its use, not normal for someone liberating a traffic cone.

I have seen far more issues with people trying to wriggle there way around it that actually deal with it straight up, hence having a laugh.

Sometimes a DIY site can not deal adequately with issues, especially ones where the poster is unwilling to fully disclose details or are a question of local Consulate interpretation.

[chrisclassic 14]

was not charged it was a traffic cone i have the subject access form here and im not trying to wriggle i said im going to be honest and do by right now i know its on my record

[chrisclassic 14]

Charming.

We were talking in the round, Chris actually later mentioned what the criminal issue was, I do not think you have.

There are plenty of threads about minor cautions.

Still unsure about Chris's actual charge, Theft requires the intention to deprive the owner permanently of its use, not normal for someone liberating a traffic cone.

I have seen far more issues with people trying to wriggle there way around it that actually deal with it straight up, hence having a laugh.

Sometimes a DIY site can not deal adequately with issues, especially ones where the poster is unwilling to fully disclose details or are a question of local Consulate interpretation.

and i know its not normal but the policing officer pardon my words was a ####### fact

[mitch48 4]

Hi Boiler, I purposefully left out my own situational details as I didn't want to muddy the debate by having people get distracted and nitpick the details. This seems to happen extensively on threads, if people can't actually answer the question posed, then they'll pointlessly pick apart an unrelated detail for the sake of saying something. Then everyone else gets distracted and you get 5 pages of nonsense where no one has actually answered the original post.

I appreciate that sometimes a DIY site cannot deal with issues, but sometimes they can! Hence their existence, to allow people to ask. Its a common fallacy for a contributor to think that because they don't know the answer (or a case study) that no one else will either. Again, answers like "we're not lawyers, I suggest you find one" etc in my mind aren't really appropriate responses, they're just "I don't know" answers dressed up with the usual authoritarian tone that you find from regular contributors who think they own the place.

Beneath the minutiae, I think this is a really interesting subject. It panics a lot of people who have used the VWP for convenience despite having a caution, who later need a visa. I can't find a case study of a visa denial in this scenario, where the exception clause could be applied.

To answer your point about Chris' traffic cone not having been permanently removed from its owner. You are right, it most likely isn't grounds for a theft charge (unless Chris confessed under questioning that he would have kept it, which is possible). However, if the police offer a caution and its accepted, then this counts as admission of guilt. Also, the specifics of the case aren't relevant where a charge has been applied, for immigration purposes its the charge that is relevant, not the specific details.

[Boiler 46,015]

Was he, or she, charged with Theft?

This is where a Lawyer and a conservation do come in, nuances are missed. Might well be a he but we do not know gender let alone the actual charge.

There is a good Lawyer in Brighton, well everybody who has mentioned him has said so. If I had concerns and lack of clarity I would at least have a telephone consultation. May be a non issue.

[chrisclassic 14]

yeah 3 weeks later i had to drive to the station after a call to say i took the cone but put it back when the officer asked thats all they wanted i can remember everything now it was so vague and petty at the times it was forgotten and i never looked at it as im a criminal my lack of brain erased it truth i have been told with all the right documentation and truth i should be okay

i was just trying to get a good answer not be laughed at

[chrisclassic 14]

no i was not charged it was a caution it was the only thing iv done it was a traffic cone all true words spoken

[mitch48 4]

Chris if you have any outstanding concerns or questions, could you kindly start your own thread?

[chrisclassic 14]

i dont i was just asking both of your opinions thats all sorry