TimTamFlimFlam

But that *isn't* the question, though. The question is literally "Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person, or government authority?" To answer one element and ignore the rest of the question would be disingenuous. If the question were "Have you ever been arrested?" then the truthful answer would be "Yes." If eligibility rested entirely on whether or not a person had been arrested, then that would be the question, and there would be no qualifying elements to it. But there are. Have I been arrested? Yes. Was there serious damage to property? No. Was there serious harm to another person? No. Was there serious harm to a government authority? No. Was I convicted of an offence relating to any of those elements as a consequence of that arrest? No. Furthermore, if the literal interpretation of the *full* question was the key element to eligibility, there would be no qualifying guidance which outlines and clarifies the nuance behind the eligibility criteria. But that guidance exists, and is detailed to the point of granularity. Am I overthinking it? Yes, absolutely. But to answer a single part of the question as you suggest, by ignoring the clarifying elements which give the question depth of meaning, would be underthinking the matter.

Hi, Thanks in advance for reading. I'm looking to travel to the US. I was worried I might not be eligible for an ESTA, but I'm now pretty sure it's fine - I'd appreciate thoughts, though. Background: I was arrested in 2009 for assault occasioning actual bodily harm (ABH), having disturbed burglars at my flat, chased them out the building, and got into a brief scuffle defending myself, leaving one with a minor cut on the head which bled but didn't need stitches. I was arrested, interviewed, released without charge or caution, and with no further action (NFA) from the police. They drove me home and told me I wasn't in the wrong, that even the burglars thought it was an accident, and the burglars only raised the complaint due to being bored at A&E. The police told me they would be suggesting the burglars withdraw their complaint, or they'd face charges themselves. Obviously the arrest remains on record, because it happened. I've done my ACRO SAR to confirm this. I also have my ACRO certificate which shows "no trace" - I've also applied to have the record deleted. The ESTA question is "Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person, or government authority?" On the face of it, I think the answer is no - I have not been arrested for a crime that resulted in serious harm to another person. The definition of serious harm, however, is the key element to this. ESTA guidance says: "If you believe any grounds of inadmissibility of the Immigration and Nationality Act § 212(a) apply to you, you should apply for a nonimmigrant visa before traveling to the United States." The relevant wording of that legislation states: "(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: (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" The Department of State Foreign Affairs Manual (DoS FAM) outlines ineligibility criteria for ineligibility refusals which chiefly rest on the concept of a 'crime involving moral turpitude' (CIMT). The manual defines moral turpitude in terms of offences which qualify, and which do not. The manual explicitly says that to be CIMT an assault must be "assault with intent to commit serious bodily harm;" - it further clarifies that 'simple assault' is not CIMT. I've read the Unlock guidance on moral turpitude, and I believe I'm fine. Simple assault in the US maps to common assault in England and Wales. The offence of ABH means the assault has caused some hurt or injury to the victim which does not need to be serious or permanent but must be more than “trifling” or “transient” (R v Donovan) meaning it must at least cause minor injuries or pain or discomfort. This is distinct from 'grievous bodily harm' (GBH) which means the assault has caused serious physical harm. There is a clear distinction between these offences in English law: - In R v Chan-Fook where Lord Justice Hobhouse said: "We consider that the same is true of the phrase "actual bodily harm". These are three words of the English language that receive no elaboration and in the ordinary course should not receive any. The word "harm" is a synonym for injury. The word "actual" indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant." - In DPP v Smith, Viscount Kilmuir QC, Lord Chancellor, stated: "I can find no warrant for giving the words 'grievous bodily harm' a meaning other than that which the words convey in their ordinary natural meaning. 'Bodily harm' needs no explanation, and 'grievous' means no more and no less than 'really serious'." The US Model Penal Code (USMPC) sets out assault as either 'simple assault' or 'aggravated assault' - this isn't law in the US, but it's still used as a basis for criminal codes in many states, and is often cited by courts. State laws are unique of course, but this is an easier view than looking at the separate legislation in each state and territory. The USMPC states: - A person is guilty of simple assault if they attempt to cause or intentionally, knowingly, or recklessly cause bodily injury to another person. Simple assault is a misdemeanour, unless it occurs during a fight or scuffle that was mutually agreed to, in which case it is a petty misdemeanour. - Aggravated assault is battery that causes serious bodily injury or bodily injury caused by a deadly weapon. Aggravated assault is a felony of the second or third degree. Consequently, it is arguable that GBH and 'aggravated assault' amount to the same thing, whereas ABH and 'common assault' map to 'simple assault' - this is, I'm sure you'll agree, very relevant. The only reference to ‘bodily harm’ in the DoS FAM is the one I've listed above. The US legal code definition of serious bodily harm/injury is: 21 U.S. Code § 802 - Definitions (25)The term “serious bodily injury” means bodily injury which involves— (A)a substantial risk of death; (B)protracted and obvious disfigurement; or (C)protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Under the definitions of said code, serious bodily harm/injury arguably equates to aggravated assault under the USMPC, which maps to the charge in English law of GBH. By these definitions then, ABH does not equate to serious harm. Thus, the correct answer to the question “Have you ever been arrested or convicted of a crime that resulted in serious harm or damage?” would be "no." - wouldn't it? The offence being listed as NFA on the same day as the arrest, with biometrics destroyed several days later, in essence puts the matter to bed. To be listed NFA means the police have decided not to charge a person with a crime as they do not have enough evidence to proceed with the charge, or it is not in the public interest to proceed with the charge, or they have decided the person probably did not commit the crime. An NFA, arguably, voids the arrest - it can be argued that the arrest should not have occurred. It has been over fifteen years since the incident - it was the first and only time I've been in trouble with the police, and it really was an unfortunate accident caused by momentum, adrenaline, alcohol on their part, and lack of thinking on my part. Related to that point, I've submitted an application to have the PNC record deleted, due to there being no legal justification for, or public interest in, retention. Additional grounds which count are suspect status being unclear at the time, malicious/false allegation, and relevancy of GDPR article 17 and DPA section 47. There are additional factors which I think are relevant: - As stated, this does not qualify as CIMT, therefore various elements of ineligibilities covered in the DoS FAM simply do not apply. - The maximum penalty would have been 6 months, due to the circumstances and nature of the offence necessitating a summary trial in a magistrate's court. The §1182(2)(A)(ii)(II) exception clause would be in effect - however, that clause relies on a conviction, of which there was none, or an admission of CIMT, which wouldn't occur as I have not committed a CIMT. Had the matter advanced to court, the CPS charging standard states: "ABH should generally be charged where the injuries and overall circumstances indicate that the offence merits clearly more than six months; imprisonment and where the prosecution intend to represent that the case is not suitable for summary trial." - further backing up, considering the circumstances, alongside the testimony from police and burglar, that this matter would never have been indictable. - There was no mens rea to the matter, and arguably no actus reus as the injury was a result of an accident, which the police and the burglar agreed was the case. USMPCE outlines levels of mens rea - purposely, knowingly, recklessly, and negligently - arguably negligent could be applied in my case. The USMPC defines recklessly and negligently thusly: Recklessly. A person consciously disregards a substantial and unjustifiable risk that the element exists or will result, such that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe. Negligently. A person should be aware of a substantial and unjustifiable risk that the element exists or will result, such that the failure to perceive it involves a gross deviation from the standard of conduct that a reasonable person would observe. In my circumstance, I don't believe recklessly is applicable, but negligently probably does. As previously mentioned, the police and the burglars determined the matter to be an accident. Accidents can be the result of negligence and carelessness, but it would be hard to argue that recklessness can be applied to the concept of an accident, due to the conscious disregard to risk that recklessness requires. - The US Supreme Court held in Elonis v United States that negligence is not sufficient to show intent, but did not rule out the question of recklessness. There is, therefore, a further argument that my situation had no mens rea. - In England, Fagan v Metropolitan Police Commissioner assault is outlined as an act which "intentionally or possibly recklessly causes another person...violence." - the case opinion by Lord Parker CJ, James J., and Bridge J. states "Mens rea and actus rea must coincide in time to establish guilt in most offences, including all forms of assault..." - arguably, my situation does not have concurrent mens rea and actus reus. The concept of assault requiring intent is further explored in R v Clarence Barrington Morris (assault is injury calculated to interfere with the health and comfort of the victim) and R v Mohan (intent is the decision to bring about a prohibited consequence). - It's worth noting the State of Washington v Thaddius X Anderson which states: “Criminal offenses can be broken down into two general categories malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so. State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (1905).” - malum se and moral turpitude are, if not the same thing, certainly closely aligned. Arguably, accidental injury occasioned during defence against a burglary does not count as malum se, and therefore is not a CIMT. - There is also the self-defence element to the matter, as I was being attacked at the time. There are provisions for this in both English law and US law which, arguably, apply to the situation, including castle doctrine. All the above taken together, I believe, presents a strong argument that I was not arrested for a crime which caused serious harm, nor was I arrested for a CIMT. Thus, I should be absolutely fine to apply for an ESTA. The element which still gives me pause, however, is that the guidance from the US embassy in London states: “If you have ever been arrested, even if the arrest did not result in a criminal conviction, have a criminal record, have a serious communicable illness, have been refused admission into, or have been deported from, the United States, or have previously overstayed under the terms of the Visa Waiver Program, we do not recommend that you attempt to travel visa free under the Visa Waiver Program.” I have been arrested, yes. The arrest was NFA'd, however. There was no caution, no charge, the police essentially apologised for the inconvenience and told me I was a good person. Aside from the PNC records (which are not routinely shared with US officials) it's like the arrest never happened. However, the ACRO certificate shows 'no trace' and as I say, the record deletion request has been submitted, and I am confident that the record will be deleted. The embassy wording is "We do not recommend" - it's a recommendation, not a rule. I've read accounts in this forum, and on TravellersPoint, from people querying whether or not to use an ESTA *with* criminal records, and them reporting success and no issues. It's entirely possible that I'm overthinking this - it would be entirely on brand, as that's my default state. I've submitted a B1/B2 visa application, but can't get an appointment before January. I am meant to fly in early December. On the visa application, the question is different: "Have you ever been arrested or convicted for any offence or crime, even though subject of a pardon, amnesty, or other similar action?” Obviously the correct answer to *that* question is "yes" - because I have been arrested. That's the answer I've provided in the visa application. However, given all of the above, I'm minded to withdraw my visa application for the moment, travel on an ESTA, and then re-engage the visa application when I'm back because time is no longer a factor. I'm confident that my situation would be no issue in a visa interview, given all of the evidence I have, and the research I've done. But, I'm still a bit unsure what to do. Obviously the crux of the matter is: “Have you ever been arrested or convicted of a crime that resulted in serious harm or damage?” - the answer to which is no because the arrest was for an offence that did not result in serious harm. Even looking through US federal law, and state law for where I'll be visiting, by the legal definitions therein, I genuinely believe I'm correct in saying no to that question. I've had a very brief response from a senior attorney at a US legal assistance firm who said: "I do not have time to closely read all you wrote but I can say an arrest is not a problem; only convictions are an issue. It would be a good idea to have with you proof the case was dismissed without a finding against you." I have a call booked in the morning with an immigration lawyer for a consultation on the topic. At this point I'm reasonably sure I'm heading into overkill territory, but anxiety is anxiety, and I am not a student of US immigration law, so, we'll see. If anyone has thoughts or similar experiences to share, I would be deeply grateful. All the best, Temple Flanagan Relevant links: Travelling from the UK with a criminal record: https://www.nacro.org.uk/nacro-services/criminal-record-support/advice-for-individuals/travel-with-a-criminal-record/travelling-from-the-uk-with-a-criminal-record/ Does Arrest only, for non-CIMT affect ESTA?: https://www.travellerspoint.com/forum.cfm?thread=123142 Identifying whether your offence is a Crime Involving Moral Turpitude (CIMT): https://unlock.org.uk/advice/identifying-whether-my-offence-is-a-crime-involving-moral-turpitude-cimt/