Arrest mistakenly not declared on DS160

[Gadjet Jones 0]

Hi,

I have travelled to the US two times on the Visa Waiver Program and I am now working on a H1B visa.

I recently learned from a friend that I should have declared on DS160 that I was arrested 10 years ago in my home country, despite the fact that it was a case of mistaken identity.

The 'arrest' was for pushing a parked motorcycle over and subsequently breaking its blinker – a witness falsely blamed me. The police arrived, asked no questions, and took me back to the station. A senior officer came to the conclusion that I had nothing to do with the damage and released me without a charge/caution and apologised for the inconvenience. I forgot about the incident until now.

The dilemma I now face is that I am worried about not declaring it on my previous and current US visa applications. I can go on without saying anything and I am 95% sure it will never come up. The problem is that I feel obligated to fix it up but I don't know how to do this without affecting my current visa. It’s starting to hang over my head every day I wake up and causing considerable anxiety and all the rest.

Has anyone been in a similar situation before? Any ideas on what I should do? If I bring it up, I fear that I will have to exit the US and start the visa application process all over again – which is not easy when you need a working visa...also the inherent delay will most likely lead to me losing my US based job. I am not a criminal and I can’t believe I even have to worry about this stupid incident (have not thought about it in 10 years!), especially when it was a mistake made by the police, arghhhhh. Any help would be really appreciated.

Maybe I am worrying sick about something that does not really matter? If I declare this ridiculous arrest on a Green Card application will it cause problems because I did not declare it in the past?

Thank you.

[canadian_wife 1,791]

You need to declare it, any misrepresentation on a visa or green card application is a violation of immigration law.

Good luck.

[NigeriaorBust 4,087]

Were you arrested or simply taken in for questioning ? If they only took you to the station for questioning then you do not have a reportable event. I am not sure if there would even be a record if that is the case. I think you should go to the station and explain that you need to answer a question about arrest history and need to know if that event is reportable or not.

[JimVaPhuong 4,863]

I haven't seen the DS-160 (it's an eForm), so I don't know how the question is phrased. The I-485 instructions specifically say "If you have ever been arrested or detained by any law enforcement officer for any reason, and no charges were filed" then submit an original official statement by the arresting agency or court record. If you follow the instructions for the I-485 then you'd have to declare it and provide the evidence they ask for.

Since you were never charged, it's unlikely there would be any court record. Even if the arresting agency doesn't have any record of having questioned you about this, they should still be able to provide a statement saying that you were never charged, which is what the form requires.

The real question is whether the incident should have been reported on the DS-160. If the question is phrased similar to the I-485 (e.g., "arrested or detained, even if no charges were filed") then you probably should have declared it. Just to cover your tail, you could include a statement explaining why you didn't declare it on the DS-160 (you'd forgotten about the incident, or you didn't think you'd been arrested, or whatever). Technically, it could be considered a misrepresentation, but it's not really material since it wouldn't have affected the approval of your visa application. Being arrested, questioned, and released does not make you inadmissible.

[Gadjet Jones 0]

I haven't seen the DS-160 (it's an eForm), so I don't know how the question is phrased. The I-485 instructions specifically say "If you have ever been arrested or detained by any law enforcement officer for any reason, and no charges were filed" then submit an original official statement by the arresting agency or court record. If you follow the instructions for the I-485 then you'd have to declare it and provide the evidence they ask for.

Since you were never charged, it's unlikely there would be any court record. Even if the arresting agency doesn't have any record of having questioned you about this, they should still be able to provide a statement saying that you were never charged, which is what the form requires.

The real question is whether the incident should have been reported on the DS-160. If the question is phrased similar to the I-485 (e.g., "arrested or detained, even if no charges were filed") then you probably should have declared it. Just to cover your tail, you could include a statement explaining why you didn't declare it on the DS-160 (you'd forgotten about the incident, or you didn't think you'd been arrested, or whatever). Technically, it could be considered a misrepresentation, but it's not really material since it wouldn't have affected the approval of your visa application. Being arrested, questioned, and released does not make you inadmissible.

I understand that I need to declare this incident and I would like to do so with minimal disruption to my life. The way I see it, the only opportunity to do so is at the time of filing a visa application. For me, this means applying for a new visa i.e. resubmitting the LCA, petition to USCIS, and then leaving the country to attend a consulate interview.

I am due to renew my H1B Visa in 2 years. Given this is an immaterial fact, maybe the most sensible course of action is to wait the 2 years and file for a new visa / declare the arrest without charge at that point in time?

[VanessaTony 3,567]

First, it wasn't "mistaken identity" it was someone blaming you for something and you being taken in as a "person of interest". Mistaken identity is when they think you're John Smith but you're Max Jones. It also wasn't a mistake made by the police, it was a mistake made by the person that accused you. That person had to have said it was X and he lives here or something like that to actually name you.

I think the best idea is to contact the police and ask them whether they have record of it. To discuss it and ask if it really was an arrest or if it was simply being taken in for questioning which I suspect it was.

Were you read your rights? Were you hand-cuffed? It sounds like one of those cases where they say "we can talk about it here, or down at the station" but then that could be a country specific way to do it.

I personally think it's a non-issue but I would contact the police for peace of mind.

Best of luck. I hope you get it sorted.

Edited March 15, 2010 by Vanessa&Tony

[Gadjet Jones 0]

First, it wasn't "mistaken identity" it was someone blaming you for something and you being taken in as a "person of interest". Mistaken identity is when they think you're John Smith but you're Max Jones. It also wasn't a mistake made by the police, it was a mistake made by the person that accused you. That person had to have said it was X and he lives here or something like that to actually name you.

I think the best idea is to contact the police and ask them whether they have record of it. To discuss it and ask if it really was an arrest or if it was simply being taken in for questioning which I suspect it was.

Were you read your rights? Were you hand-cuffed? It sounds like one of those cases where they say "we can talk about it here, or down at the station" but then that could be a country specific way to do it.

I personally think it's a non-issue but I would contact the police for peace of mind.

Best of luck. I hope you get it sorted.

Thankyou for your reassuring response. To be honest, I think it's best if I just forget about the whole damn thing -- it's causing me far too much stress / anxiety. If only that silly witness knew what I am going through now. Even if it was an arrest (I'm pretty sure it was), I don't think it's the end of the world if I declare it later because I did not break the blinker on the bike However, I will definitely volunteer the information and declare it next time I get an opportunity to fill out an immigration / visa form.

I really think this question on DS160 is not fair - it has caused me lots of stress for something I never did. It should be for people who have been charged and/or convicted not those that were arrested and found to be perfectly innocent - especially for something as petty as $100 damage (if that) to a motorbike.

[JimVaPhuong 4,863]

First, it wasn't "mistaken identity" it was someone blaming you for something and you being taken in as a "person of interest". Mistaken identity is when they think you're John Smith but you're Max Jones. It also wasn't a mistake made by the police, it was a mistake made by the person that accused you. That person had to have said it was X and he lives here or something like that to actually name you.

I think the best idea is to contact the police and ask them whether they have record of it. To discuss it and ask if it really was an arrest or if it was simply being taken in for questioning which I suspect it was.

Were you read your rights? Were you hand-cuffed? It sounds like one of those cases where they say "we can talk about it here, or down at the station" but then that could be a country specific way to do it.

I personally think it's a non-issue but I would contact the police for peace of mind.

Best of luck. I hope you get it sorted.

Under the US definition of police interactions (which I presume is applied for the purposes of immigration forms) being questioned by a police officer may be considered "contact", "detention", or "arrest".

"Contact" means you are not suspected or accused of any crime. You are free to leave or refuse to answer questions.

"Detention" is non-consensual. The police officer has reasonable suspicion that you have been involved in a crime or attempted crime, and he doesn't want you to leave while he investigates.

"Arrest" is also non-consensual. The police officer believes that a crime has occurred, and has probable cause to believe you are involved. If a police officer moves you to another location while you are being detained (i.e., takes you to the station for questioning) then the detention becomes a de-facto arrest. In the US, having your Miranda rights read to you is a pre-requisite to questioning that will be used as evidence against you, but does not necessarily constitute the moment of arrest.

The motorbike was damaged. A witness accused the OP of perpetrating the act. The police officer took him to the station for questioning. Under the US definition of the law, this would probably be classified as an arrest.

[NigeriaorBust 4,087]

Arrest in the US means you were "read your rights" I am not sure if there is am international equilivant

Arrest in the US means you were "read your rights" I am not sure if there is am international equilivant

[JimVaPhuong 4,863]

Arrest in the US means you were "read your rights" I am not sure if there is am international equilivant

Arrest in the US means you were "read your rights" I am not sure if there is am international equilivant

No, arrest means you are a suspect based on probable cause, and you are being held without your consent. They can, in fact, arrest you and question you without reading your Miranda rights. They just can't use anything you say against you in court. They don't have to read your Miranda rights unless and until they are ready to begin questioning you for the purpose of collecting evidence to use against you. They can, in fact, arrest you and hold you (for up to 72 hours in most jurisdictions) without ever reading your rights or questioning you. This is typically what happens when they arrest people for trivial things like disorderly conduct at a public demonstration. They have no intention of actually charging you with a crime, so they never question you. They key point is that you are under arrest as soon as you are held without consent based on probable cause.

I don't think it matters if there's an international equivalent. Neither USCIS nor US consulates are bound by foreign laws. They apply the standards of US law when determining inadmissibility. There are even classes of inadmissibility where the INA specifically states "Even if the act was legal in the country where it occurred".

[Gadjet Jones 0]

Under the US definition of police interactions (which I presume is applied for the purposes of immigration forms) being questioned by a police officer may be considered "contact", "detention", or "arrest".

"Contact" means you are not suspected or accused of any crime. You are free to leave or refuse to answer questions.

"Detention" is non-consensual. The police officer has reasonable suspicion that you have been involved in a crime or attempted crime, and he doesn't want you to leave while he investigates.

"Arrest" is also non-consensual. The police officer believes that a crime has occurred, and has probable cause to believe you are involved. If a police officer moves you to another location while you are being detained (i.e., takes you to the station for questioning) then the detention becomes a de-facto arrest. In the US, having your Miranda rights read to you is a pre-requisite to questioning that will be used as evidence against you, but does not necessarily constitute the moment of arrest.

The motorbike was damaged. A witness accused the OP of perpetrating the act. The police officer took him to the station for questioning. Under the US definition of the law, this would probably be classified as an arrest.

I was read my rights that night, which is why I'm led to believe I was arrested. Do you know of any mechanism to report this to US Officials? Most people I have spoken to recommend not bringing it up (because it won't come up anyway). I suppose I have a few options:

1) The next time I enter the country I could declare it on my I94 card and explain the discrepancy at the border

2) Visit US Consulate in my home country and resubmit DS160 Form. I am not sure if this will result in my current visa being cancelled and a new one having to be issued

3) Simply wait till I apply for Green Card or another Visa and declare it then.

4) Maintain the misrepresentation forever

Edited March 15, 2010 by Gadjet Jones

[JimVaPhuong 4,863]

1) The next time I enter the country I could declare it on my I94 card and explain the discrepancy at the border

Not advisable. Generally speaking, the CBP doesn't like to have to conduct any investigations at the border beyond checking their computers and interviewing entering aliens. Their unofficial motto is "When in doubt, throw 'em out!". If you introduce anything to gum up the process, you'll likely find yourself on plane back to your home country, with the admonition that you'll need a visa for any future entry into the US. The CBP would prefer to let the consulate sort it out.

2) Visit US Consulate in my home country and resubmit DS160 Form. I am not sure if this will result in my current visa being cancelled and a new one having to be issued

In my opinion (which is admittedly not based on personal experience or extraordinary knowledge of the subject) this seems like the safest bet. I'd shoot them an email, explain your situation, and ask them how you should handle it. I think they'll either say "Forget it. It's not a problem.", or they'll ask you to submit your evidence, and they'll update their files. I doubt they'd consider it an intentional misrepresentation if you're trying to correct it now, before entering the US.

It's probably best not to try to visit the consulate unless you receive an invitation to do so. They probably wouldn't admit you.

3) Simply wait till I apply for Green Card or another Visa and declare it then.

AOS is not a good time to be telling USCIS that your original visa application was incomplete.

4) Maintain the misrepresentation forever

Nobody here is going to recommend you do something which is in violation of immigration law. This is a choice you'd have to make yourself.

[Rebecca Jo 1,962]

This sounds like one of those times when you need to ask an attorney.

[Rebecca Jo 1,962]

AOS is not a good time to be telling USCIS that your original visa application was incomplete.

Is the question the OP is concerned about a "new" question? In other words, is it worded in a "new" way or phrased differently than the last time he completed any paperwork with DOS?

If it is, the his last visa application would not have been incomplete?

[Gadjet Jones 0]

In my opinion (which is admittedly not based on personal experience or extraordinary knowledge of the subject) this seems like the safest bet. I'd shoot them an email, explain your situation, and ask them how you should handle it. I think they'll either say "Forget it. It's not a problem.", or they'll ask you to submit your evidence, and they'll update their files. I doubt they'd consider it an intentional misrepresentation if you're trying to correct it now, before entering the US.

This is sensible advice -- thankyou. The only problem is that I am due to return to U.S. in 7 days. I would think they would request an interview because otherwise there is no way to prove the authenticity of my e-mail -- anyone can write an email to the consulate claiming to be me. This would cause me numerous problems and potentially lead to loss of employment if I was to miss the flight. I'm just running out of time. I hate this Maybe I can plan for this and do it when I return to home country next time in 1 year?