K-1 Visa with ACPO Class A Drug Possession Offence

[RobinEisenberg 2]

Hello everyone! I'm Robin. My British fiancé Daniel and I have been planning to move to California for some time (where I'm from). We've filed our I-129F and are awaiting hopeful approval.

This is the situation:

In 2007, Daniel was at a party. A girl gave him a pill and said it was a "legal herbal high". He doesn't do drugs, but, not wanting to appear "uncool", he took the pill and then put it in his wallet, intending to throw it away. He forgot about it entirely, but a month later he's the sober driver for some friends who are smoking marijuana after band practice. The cops catch his friends, and search everyone including Daniel. They find the pill in his wallet, and he's taken to the station for questioning. They are very friendly with him, but say they have to test the pill, etc. He comes back a month later to sign some papers, and that's about it. (He doesn't remember exactly what the papers involved, but he remembers that it was technically a police caution.) No fine and no court case.

Anyway, fast forward to today, and turns out the pill was not a herbal high, but MDMA, and on his police report it says Caution - 2007 - Possessing Controlled Drug/Class A/MDMA. (No other offences.) Obviously this is a much bigger deal than I thought, as the US policy on drugs is very severe. At first, we were pretty hopeless and thought perhaps we should re-think things and move to the UK. But, I've read some accounts where couples were approved despite this, as long as it was a single caution and not a repeat offence. We've requested his Subject Access Report in hopes that it will provide some more detail for the visa interview.

Now, the other problem is that he has visited the US three times since 2007, and did not think to worry about the caution as in his mind, he hadn't been arrested. He also didn't think that his situation was a CIMT. Not indicating an arrest on his ESTA was a genuine mistake on his part due to the casual nature of the 2007 incident, and we're hoping that this fact will help. Hopefully he can explain this in the interview.

I was just wondering if anyone has been in a similar situation, and if so - what is the best way to discuss the offence with the officer at the visa interview in London? I'm sure everyone who has a drug offence says the same thing ("someone gave it to me" "I don't do drugs", etc.), so how can we explain the situation in a way that will help our case? Is it good to go into detail and tell them exactly what happened? Or should we come up with a more "legal" way to phrase what happened? Also - is there any chance he could face a lifetime ban? I've read some horror stories and that is really worrying us.

Any and all advice/referrals would be greatly appreciated. Thank you in advance!!

ps: Sorry this is so long! Just wanted to provide as much detail as possible. I know there are some other posts on similar subjects, but I haven't found any information about what we should actually say when the question comes up at the interview and any input would be helpful!

[Nich-Nick 3,354]

His first hurdle will be the medical exam. They (Knightsbridge in London) require the police report so they can see if there are any drug offenses. They will ask him about drug use and he can tell his story. If the marijuana smoking friends are not on his report, then no reason to complicate things if he was not charged for marijuana. A traffic stop revealed a pill. If questioning is directed to why the search, then of course if it was because a friend was high or had marijuana, then be truthful and say why they searched everybody. I am not in any way advocating lying, but he doesn't have to volunteer every situation in his life where he knew somebody using drugs if he wasn't participating....If that makes sense. If asked, do your friends use drugs, then that is a direct question to be answered.

So the Knightsbridge doctor will probably give a drug screening (urine test) which is an extra £48 (?) because it is not part of a routine exam.

Yes people have been excused in London for a one-off drug violation. I can't speculate on who and why. There is a bunch of detailed info in immigration law. Does it fit his case? I don't know. My advice is go interview and find out. Nothing you can change about the past so speculating and worrying doesn't help. The answer comes at the interview. Save the panic and Plan B until after the interview.

Many have put the fear of God into previous posters because of using VWP. I can't remember any who went to London with a crime/caution on their record and VWP use was even brought up. Several have churned themselves up anticipating it but the visa interviewer didn't go into previous visits to the US or violations to VWP.

[RobinEisenberg 2]

Thanks for the helpful reply. That's good advice re: the medical exam. Fortunately, he has absolutely no history of drug use and will be able to tell the medical officer that with complete honesty. And yes, I think you're right in that it's smart to try to avoid any other drug-related elements to the story if possible (unless he is pressed for more detail). I'll make a note of that!

Just hoping that the fact that there is only a single offence and for such a small amount will prove to be helpful (though I know that often, what's important to the US isn't the details of the offence but the highest possible charge that COULD have been incurred.) Fingers crossed!

And thank you also for the advice re: the VWP - that's reassuring.

[southcoast 27]

It will depend on what the drug is. First, I would suggest you disclose the conviction, because you don't want the failure to disclose to come back to haunt you later. Second you will need to find out what the drug is. It gets bit complicated but you can go on the web and look at 21 USC 802. These are the controlled substances which can result in exclusion from the US. If the drug is on that list then he cannot be admitted to the US and no waiver is available. I don't know anything about British law, but here there are many ways to vacate a conviction. You will need to consult with a british lawyer. Remember- sealing the record doesn't work- the conviction must be vacated. Finally, I would get all this done prior to the interview because you really don't want to answer questions about it. Admitting to having possessed a controlled substance in an immigration interview is also excludable. This is a lot but for better guidance look at INA section 212. It lists the excludable offenses. I think at this point you have gone beyond the do-it-yourself stage and really need to consult with a lawyer.

[Boiler 45,542]

Ecstasy.

I thought the CIMT exception was one small amount of MJ.

[RobinEisenberg 2]

Thank you everyone for the responses - all this information is really helpful. From everything I've learned, his caution DOES make him technically/actually inadmissible to the US, based on his offense being "Possession of Controlled Drug Class A - MDMA (ecstasy)". There is no waiver for this charge. BUT, there have been K-1 visa cases where the UK citizen had a Class A drug possession charge and they were still approved on the spot. It definitely seems to be case by case, and ultimately up to the discretion of the immigration officer conducting the visa interview. It is helpful for his case that a) this is his only offense and it is from 7 years ago, b) it was a single pill and it was given to him, and c) that he is not a drug user and has never been cautioned for the actual USE of drugs. We are contacting immigration attorneys now in hopes of learning what our next step should be. He has longtime friends in law enforcement here in the UK, so we are also looking into having them write letters of character reference just to be as prepared as possible. Fingers crossed! Thanks again, everyone!

[southcoast 27]

Ecstasy.

I thought the CIMT exception was one small amount of MJ.

There is a waiver for CIMTs, and I don't think that a single offense of simple possession of less than 30g of marijuana is excludable. But this falls under the general drug ground of exclusion. It is not a cimt. I didn't realize before that it was ecstacy but this drug indeed falls within the list of controlled substances. I suppose anything is possible at the interview, but the law is pretty clear tht this is an excludable offense without a waiver. Kind of silly that you could get a waiver for armed robbery but not possession of a single pill but that's the law.

[southcoast 27]

Thank you everyone for the responses - all this information is really helpful. From everything I've learned, his caution DOES make him technically/actually inadmissible to the US, based on his offense being "Possession of Controlled Drug Class A - MDMA (ecstasy)". There is no waiver for this charge. BUT, there have been K-1 visa cases where the UK citizen had a Class A drug possession charge and they were still approved on the spot. It definitely seems to be case by case, and ultimately up to the discretion of the immigration officer conducting the visa interview. It is helpful for his case that a) this is his only offense and it is from 7 years ago, b) it was a single pill and it was given to him, and c) that he is not a drug user and has never been cautioned for the actual USE of drugs. We are contacting immigration attorneys now in hopes of learning what our next step should be. He has longtime friends in law enforcement here in the UK, so we are also looking into having them write letters of character reference just to be as prepared as possible. Fingers crossed! Thanks again, everyone!

Robin. I am sure that your fiancé is a great guy and that the conviction was no big deal. But letters, etc. are largely irrelevant. There must first be a legal avenue which allows the officer to overlook a conviction before he can use his discretion. He may think your fiancé is wonderful, but he will not get to the letters of good character if the law forbids him from waiving the conviction. I am glad that you are consulting with n immigration lawyer. I would suggest saving his law enforcement contacts for possible assistance in getting the courts there to vacate the conviction.

[RobinEisenberg 2]

would suggest saving his law enforcement contacts for possible assistance in getting the courts there to vacate the conviction.

Thank you for all the advice! There was never a conviction/court case (or fine), it was simply a formal caution. I don't think there is any action he can take in order to amend his record as there was no action ever required. Regardless, he would need to declare the arrest in order to 100% truthful at the interview.

In this instance ( http://britishexpats.com/forum/us-immigration-citizenship-visas-34/controlled-substances-ban-usa-741893/ ), the USC's UK fiancé was approved at the K-1 visa interview despite his 3 possession cautions (Class A and B) from 3 years prior. I'm hoping that speaking to an immigration lawyer can help us to determine if this is a possibility for us, and if so, what we can do to aid our case.

If all else fails, we're at least lucky in that neither of us has any major commitments keeping us from moving, and I could move to UK if need be.

It's great to get all this feedback, though - helps to put things in perspective. Thanks again!

[southcoast 27]

Thank you for all the advice! There was never a conviction/court case (or fine), it was simply a formal caution. I don't think there is any action he can take in order to amend his record as there was no action ever required. Regardless, he would need to declare the arrest in order to 100% truthful at the interview.

In this instance ( http://britishexpats.com/forum/us-immigration-citizenship-visas-34/controlled-substances-ban-usa-741893/ ), the USC's UK fiancé was approved at the K-1 visa interview despite his 3 possession cautions (Class A and B) from 3 years prior. I'm hoping that speaking to an immigration lawyer can help us to determine if this is a possibility for us, and if so, what we can do to aid our case.

If all else fails, we're at least lucky in that neither of us has any major commitments keeping us from moving, and I could move to UK if need be.

It's great to get all this feedback, though - helps to put things in perspective. Thanks again!

That's good news. I don't know anything about british law. It is possible that a "caution " is not a conviction. In order to be a conviction there has to be an admission to the facts plus some form of restraint on liberty. ie. probation, fine, etc.. Maybe none of these were present. Still be careful at the interview because if he admits to having possessed a controlled substance the officer could exclude him. Good luck

[RobinEisenberg 2]

That's good news. I don't know anything about british law. It is possible that a "caution " is not a conviction. In order to be a conviction there has to be an admission to the facts plus some form of restraint on liberty. ie. probation, fine, etc.. Maybe none of these were present. Still be careful at the interview because if he admits to having possessed a controlled substance the officer could exclude him. Good luck

Thank you! To be honest, I don't know much about British law either. We've written the same lawyer from the case I referenced so hopefully a consultation with him will help. There was no probation or fine whatsoever, which is good, and the only thing he admitted to the police at the time was that he possessed what he thought was a legal herbal high "party pill" (they sell them at UK music festivals.) Although obviously it turned out to be MDMA, perhaps his genuine mistake and honesty will help us. Definitely a case for a good immigration lawyer! Thanks for all the input!

[RobinEisenberg 2]

Hello everyone! Just wanted to let you all know that our visa was approved!!! No questions about the caution or the previous US visits! It was all over in 5 minutes! I think it was a big help that his caution is from 2007 as cautions became much more serious from 2008 onwards.

Anyways, thank you all for the help!!! Next stop, California! ))

[Pheebs1201 269]

Congratulations on your approval!

[TBoneTX 45,324]

Wonderful news, Robin! Thanks for returning with the update.

*** Thread moved from K-1 Process forum to the K-1 Case Progress subforum. ***