CRIMINAL RECORD - two cautions - a problem?

[PBJ 60]

Hello all -

Status: I, the beneficiary, have submitted notification of readiness, medical booked and awaiting interview.

I am a little concerned as to the potential consequences of my criminal record. I have two arrests dating back 2002: one for possession of controlled drug (class B in UK), and one for suspected "burglary and theft of a non-dwelling". I was only cautioned for both - no charge, no conviction. The second sounds wretched on my police certificate but in actual fact I was caught with a friend loitering on a property that had recently been burglarised; we were not the protagonists and it was genuine wrong place, wrong time.

I feel its probably correct to be more concerned about the arrest for a controlled drug, as this appears to constitute a 'crime of moral turpitude' for which exclusion from the US may apply. I have read and re-read all the legal advice available online and I am currently assuming the following positives:

[1] I was 19 when these arrests occurred, nearly 12 years ago;

[2] I was not convicted and hence no sentence was served;

[3] Exclusion appears not to apply where only one crime of moral turpitude has been committed;

[4] It is a single offence of possession under 30 grams (may only apply to immigrant waiver, not sure here);

[5] I can demonstrate full rehabilitation with no subsequent arrests and living as a fully employed and civil member of society ever since.

I have declared the arrests on the DS-160, I have the detail as part of my police certificate and I am also awaiting my Subject Access Report in case that provides further detail on the matter. It goes without saying I will of course be up front and honest at the interview stage.

I have read countless VJ threads regarding the effects of a criminal record and I can't seem to settle my nerves here. All situations appear to be different in how they are viewed and how they are treated by the respective CO.

My basic question is: do you think i'm stuffed?!

Please feel free to share your opinions on my situation, and any similar experiences would be appreciated also.

Edited April 25, 2014 by PBJ

[Al422 221]

I think the drug incident meets all the qualifications to be forgiven for one offense of moral turpitude.

As for the burg, tell the consular officer like you told us, that you had the misfortune of being there but did not participate in the crime, and apparently the police agreed as they did not arrest you.

You should be fine.

[JonathanC13 36]

If you have travelled using the VWP and ticked 'no' to the moral turpitude question on your application you will likely be grilled some at interview. I was and my minor run In with the law was 30+ years ago as a juvenile. It didn't result in a refusal but you might want to be prepared for it

[PBJ 60]

Thanks guys. Yes my multiple visits to the US under VWP have been on my mind. I guess I have not properly understood those questions regarding 'moral turpitude', having presumed some ambiguity about what that actually means in my situation.

I am due another visit next month, and i'm inclined for every right reason to answer the question on the blue form correctly and suffer any consequences. At the very least I would hope that shows good and honest intention to not conceal anything and do this correctly.

Edited April 27, 2014 by PBJ

[PBJ 60]

OK now i'm pretty worried. I have flights booked for a visit only on 13 May. My previous arrests mean that I cannot travel on the VWP, and further that my previous visits under the VWP demonstrate misrepresentation since I did not declare those arrests (I have never been charged or convicted, only warned, so did not consider my situation to be serious).

Does this mean I now have to file for a B-2 visa?

Please help! I'm frightened that i've totally messed this up!

[PBJ 60]

Adding further info to this situation:

Today I re-applied for VWP via ESTA (and therefore cancelled the previous valid VWP), this time answering correctly to the arrest question. I was of course denied permission to travel.

And so I have since attempted to apply online for a B2 Visa via the DoS Visa Appointment Service, however there are currently no available appointments at the London Consulate. Does anyone know if this is commonplace? Are appointments hard to come by? Is this something that will update realtime as appointments become available? As in, am I better off checking tomorrow?

With travel arranged for 13 May, I am obviously very keen to ensure I have permission to travel and won't be stopped on arrival (Los Angeles).

I'm keen to hear from any K1 filers, particularly from VWP countries, who have been in a similar situation and resorted to a B2 visa in order to visit. Has anyone turned around a B2 application, interview and delivery in 2 weeks?!

And please, I don't need to be reminded that i've not done this correctly; i'm already worried beyond belief that my own previous oversights may cost me this visit, and indeed the whole K1 process. At this point i'm terrified.

I'd graciously appreciate your advice, your experiences, and any reassurances (however meagre they may be)!

Thank you all.

D

[MacUK 983]

Adding further info to this situation:

Today I re-applied for VWP via ESTA (and therefore cancelled the previous valid VWP), this time answering correctly to the arrest question. I was of course denied permission to travel.

And so I have since attempted to apply online for a B2 Visa via the DoS Visa Appointment Service, however there are currently no available appointments at the London Consulate. Does anyone know if this is commonplace? Are appointments hard to come by? Is this something that will update realtime as appointments become available? As in, am I better off checking tomorrow?

With travel arranged for 13 May, I am obviously very keen to ensure I have permission to travel and won't be stopped on arrival (Los Angeles).

I'm keen to hear from any K1 filers, particularly from VWP countries, who have been in a similar situation and resorted to a B2 visa in order to visit. Has anyone turned around a B2 application, interview and delivery in 2 weeks?!

And please, I don't need to be reminded that i've not done this correctly; i'm already worried beyond belief that my own previous oversights may cost me this visit, and indeed the whole K1 process. At this point i'm terrified.

I'd graciously appreciate your advice, your experiences, and any reassurances (however meagre they may be)!

Thank you all.

D

Without a B2 or ESTA you won't get as far as LA, you'll not be allowed on the flight.

As for the London Embassy, unfortunately it is very busy. Last time I applied I just checked the appointments page over a few days and luckily one came up. Don't know if it was a cancellation or what but the page is updated regularly. I still had to wait about two weeks for it, but it was better than the month or so I'd originally thought I'd be waiting.

Getting it sorted by May might be a little optimistic, even once you've got an appointment and hopefully get approved it'll still take about a week(ish) to get your passport back. You don't get the visa issued there and then.

Good luck

Edited April 27, 2014 by MacUK

[PBJ 60]

Thank you Mac.

Sorry I didn't mean to make it sound like I would be travelling without a Visa.

Yes, I have been watching the appointment page all day and one popped up, but for Belfast. I will stay positive on something coming up for London, or else I will ring the local number tomorrow morning at 7am.

I realise I may have to cancel my travel plans; the bigger picture at this point is not jeopardising my K1 visa application.

Fingers and toes and every hair crossed...

[PBJ 60]

I think the drug incident meets all the qualifications to be forgiven for one offense of moral turpitude.

As for the burg, tell the consular officer like you told us, that you had the misfortune of being there but did not participate in the crime, and apparently the police agreed as they did not arrest you.

You should be fine.

I would hope that an honest explanation to the CO would be satisfactory, however on reading DoS guidelines given here this may not be the case at all: http://www.state.gov/documents/organization/86942.pdf

The first paragraph defines the presence of moral turpitude as determined by "the nature of the statutory offense for which the alien was convicted, and not by the acts underlying the conviction Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible ".

Essentially, I take this as meaning the crime as listed on my police certificate overrides any explanation I can give as to the scenario as it happened. This does not bear well for me.

I am not having a good day...

[PBJ 60]

I think the drug incident meets all the qualifications to be forgiven for one offense of moral turpitude.

As for the burg, tell the consular officer like you told us, that you had the misfortune of being there but did not participate in the crime, and apparently the police agreed as they did not arrest you.

You should be fine.

Oh and for the record, the drug incident is not the crime of moral turpitude, the 'burglary' is. The drug incident is a crime involving a controlled substance.

Whether defining between the nature of the two offences affects my situation will remain to be seen. I am hoping that the significant time passed since the offences (12 years), and my demonstrable upstanding lifestyle since, is more relevant in this situation.

[MacUK 983]

Thank you Mac.

Sorry I didn't mean to make it sound like I would be travelling without a Visa.

Yes, I have been watching the appointment page all day and one popped up, but for Belfast. I will stay positive on something coming up for London, or else I will ring the local number tomorrow morning at 7am.

I realise I may have to cancel my travel plans; the bigger picture at this point is not jeopardising my K1 visa application.

Fingers and toes and every hair crossed...

Wasn't implying that you'd try to gate crash the plane!

I had the same scenario with a Belfast appointment being available. Even had a google spree looking at Sleazyjet prices and local hotels to just nip over there for a day or two.

Hopefully you might be able to change your flight to a later date.

[Tina and Johan 206]

I have a couple questions: were you actually taken into custody both times and brought to a police station? Were you able to see on your Police Cert that they are listed? If listed, have you been able to get actual court documents about each situation (I think you need these if you were actually arrested)? Based on your quote with regards to moral turpitude, it says "Conviction." You were not convicted, as you say. If you were never charged, how can they be held against you? (I may be naively optimistic here!) On the vwp, does it ask if you were arrested, charged, or convicted? there are differences, of course. I think it'll be fine. But definitely keep us posted!

[PBJ 60]

I have a couple questions: were you actually taken into custody both times and brought to a police station? Were you able to see on your Police Cert that they are listed? If listed, have you been able to get actual court documents about each situation (I think you need these if you were actually arrested)? Based on your quote with regards to moral turpitude, it says "Conviction." You were not convicted, as you say. If you were never charged, how can they be held against you? (I may be naively optimistic here!) On the vwp, does it ask if you were arrested, charged, or convicted? there are differences, of course. I think it'll be fine. But definitely keep us posted!

Thank you. Yes I was taken to the station both times but only cautioned, not charged. As I have come to understand it, a caution in UK law is somewhere between arrest and prosecution for minor offences. I did not appear in court so there are no such documents. Both arrests are detailed on my police certificate. I have also filed for a SAR in case said document expands on the arrest situations and police resolution - I am awaiting delivery.

The quoted document does refer specifically to conviction, and since this I have never been convicted I am counting that as a positive.

What I am worried about is what will be seen as multiple counts of misrepresentation, since I have visited the US several times on the VWP without previously declaring these arrests. The truth here does not bear well for me, I don't think.

I will be calling the consulate tomorrow seeking an appointment for a B2 visa, hoping I can still visit in May as planned.

Edited April 27, 2014 by PBJ

[PBJ 60]

I called the London Consulate this morning. A very helpful and clear gentleman explained that I could not apply for a B2 visa whilst the K1 interview appointment was pending, and that I would need to wait until I have the interview letter in hand.

This issue came about when I asked if it was possible to use the same DS-160 form for the B2 application as I had done for the K1 visa.

Has anyone tried to do the same? Perhaps I should start a new thread?

[PBJ 60]

Quick update here, in the interests of keeping the thread useful for wandering, wondering masses:

I am still awaiting interview but case was touched yesterday so perhaps it will be this month some time.

I have studied the law surrounding my circumstances and I see much weight is put behind inadmissibility on the grounds of a conviction or an admittance of having committed the offences. Since a UK caution is only given following such an admission, this is taken as so and may even be seen as a conviction for the purposes of US immigration.

That being said, I now also know that the London Consulate has not been known to take this position, and also that they usually do not consider a caution to be an admittance to the essential elements of a crime. I have this opinion from Laurel Scott courtesy of her Wednesday chatroom.

I will still like to make it absolutely clear this is only her opinion and does NOT constitute legal advice, so must not be taken as such by anyone reading here.

She also told me that recently the Administrative Appeals Office effectively told London to stop finding misrepresentation as a matter of course and to actually look at whether the person intended to misrepresent. Again, this is NOT legal advice, only information from a professional.

However I am now inclined to seek legal advice ahead of the interview. I have contacted Steve Heller in Brighton and am awaiting a consultation. I have read all the horror stories, the few successes, and i've read extensively for weeks on the more pressing matter of law. Legal counsel should help me understand my position and better anticipate outcomes from the interview.

Wish me luck!