Expecting denial, GOT APPROVED

[Leatherneck 693]

Congratulations and welcome to sunny Southern California!

[PBJ 60]

Congratulations and welcome to sunny Southern California!

Thank you!

Today mostly sounds like this:

[Leatherneck 693]

You bet!

I'm sure everything is awesome after that bit of great news.

ETA: looking forward to you educating us about 'police cautions.'

Edited June 6, 2014 by Leatherneck

[PBJ 60]

I did promise a conclusion to my situation, if only for the permanent record and to sate any of your curiosities, so here goes.

Quick review of me: I am a UK citizen and K1 beneficiary via London. I have two arrests from 12 years ago resulting in UK police cautions - including one for controlled substance possession - and I was also potentially liable for misrepresentation due to travelling to the States on multiple occasions under the visa waiver programme. I have now completed interview stage and was approved, despite the above concerns, hence I feel there's plenty about my situation that may prove useful to others experiencing similar circumstances.

Firstly, its worth knowing that I, like many others in this complex and drawn-out visa process, spent hours/days/weeks trawling websites and forums, sponging up information and advice in a desperate attempt to answer one fundamental question: will my historic arrests, cautions and possible misrepresentation render me inadmissible to the United States and hence destroy my immediate dreams of happiness and new life with my fiancé? The answer is of course no, as is demonstrated by my approval.

In gleaming so much from the internet, and feeling painfully discouraged by much of it, I had inadvertently created a whole new mindset of stress, a maelstrom of self-serving worry and doubt and frustration that proved emotionally damaging as much as it was pointless. As I trawled through info pages, lawyer blogs, forums and random commentary, it was clear that finding accurate and enlightening material amongst all the speculation and opinion was as tasking as getting the visa in the first place. The internet is a truly powerful resource, and whilst brilliantly democratic in its constituent parts, it is also prone to misdirection for any researcher. The point being: do not believe everything you read! Stick to the facts presented by official organisations, learn the wisdom from legal professionals, and go light on the opinion and conjecture and sheer guessing which makes up the rest of the noise! Its not that this stuff is inherently wrong, just that it'll create a swirling noise in your mind making it difficult to see the wood for the trees. You have to be able to deduce the facts, whilst trying to keep your judgement from your emotion. In these matters, worry is not your friend, but totally understandable.

What i'm about to present here is the facts as I see them regarding police cautions, together with some anecdotal evidence based on my experience of completing this process. I did seek legal counsel prior to my interview, and whilst some of this guidance is included, you should not interpret this as legal advice. There is no replacement for talking to a real and experienced lawyer on these matters.

Edited June 7, 2014 by PBJ

[PBJ 60]

12 years ago, when I was 19 years old, I had two interactions with police, both within a few months of each other and both for what were seen as petty offences as they were disposed of by caution. Under UK law, a caution is a formal warning received following arrest and given on admittance of a crime (and hence constitutes an official confession). It is not a criminal conviction since no judge or court is involved, but you can be charged if you don't agree/admit to the offence, and it can be used as evidence of bad character if arrested for further offences.

It is important to know there is no equivalent of a UK police caution under US criminal law, and so emerges a grey area with regards to US immigration. Earlier this year, the London embassy began refusing some visas to individuals based on arrests disposed of through police caution since this was seen to represent an official confession of a crime. This notion of confession and its validity is significant. See the following section of the Foreign Affairs Manual for official guidance given to Consular Officers when basing ineligibility upon said confessions. There is also excellent further reading by immigration lawyer Steven D Heller explaining this change in guidance much better than I can.

Back to my circumstances then: my first police caution for theft would be deemed exceptionable under the petty offence ruling, where only one crime has been committed and the maximum penalty does not exceed 1 years' imprisonment or a sentence of six months' confinement. So far so good.

My second caution for possession of a controlled substance proved more significant and is indicative of the USA's hard line on drug offences. If found to be inadmissible courtesy of a controlled substance violation, there is no waiver available for immigrant visas (other non-immigrant visas may still be available) unless possession was for 30 grams or less of cannabis only, and the penalty can be a lifetime ban. This is where I got very scared!

The finding of inadmissibility due to a caution is done on a case-by-case basis and is only reached if there is evidence that the criteria established in US law were satisfied. That is to say, in lieu of a conviction, is there proof a crime has been committed, or is the crime being confessed to?

In my interview, following the standard questions about my fiancé and marriage, I was asked to briefly explain the events leading to arrests. Here, the notion of confession is again significant, and presents an opportunity to undermine the prior admittance at the time of the caution (ie. give reasonable doubt against the offence).

For those with concerns about cautions for substance possession, consider the following:

- Do you know unequivocally what the substance was? Not all drugs are controlled substances

- Did you buy it, or were you given it? The difference may be significant

- Did you use the substance? This is not the same as possession, although difficult to argue against

- Will you admit to using drugs at any other time?

Do seek a subject access report (SAR) from the Police National Computer via ACPO, which will show brief information additional to the police certificate. A further SAR can be filed with the relevant local police force, requesting the original arrest report and substance lab report together with any further disposal history. If significant time has passed since the offence, and there has been no prior arrests, it may be that such further paper files may not even exist anymore (some records are disposed of after 7 years). In this situation, your testimony is compelling.

Also consider the nature of your original confession. Was it given freely and under oath? The admission must specify factual elements of the crime, with an explanation of the crime given beforehand. It may be that in determining a weak conviction via the Crown Prosecution Service, police officers coerce a confession in order to dispose of quickly via a caution. For most first time/low risk offenders who are cooperative and remorseful, this is an acceptable outcome preferable to being charged and facing court, but doesn't necessarily represent the only outcome. Indeed, the disposal could possibly be greatly improved if handled by legal representation.

There may be further mitigating factors such as age at the time of offences, time passed since offences, demonstration of remorse, good character etc, but none of these factors are exceptionable in isolation. The CO is well trained to assess the quality of admissions given during interview and is more likely to stick to the facts of the matter supported by evidence.

* * *

Subsequent to my cautions I have travelled to the US a total of five separate occasions as a tourist under the VWP. This means that in completing ESTA, I had incorrectly answered the question regarding arrests for CIMT and controlled substances. This may constitute misrepresentation and I was prepared to face this during my interview. To my surprise, I did not face a single question regarding misrepresentation, undermining the commonplace idea that London is very tough on this matter. It is clear many people have had to face this one and so, again in the interests of paying it forward, here follows my prep notes.

A charge of misrepresentation is qualified by four key points: [1] misrepresentation has been made, [2] that it was wilfully made, [3] that it was material, and [4] that fraud was used to receive immigration benefit. The CO must believe all four requirements exist in order for inadmissibility apply.

Material is defined better as a new question: would your admission have been affected if the facts had been known? If the facts could not be used against you, it is not material.

Also, a charge of misrep is compounded by multiple visits, as this demonstrates multiple opportunities to answer the same question via ESTA.

If found inadmissible for misrepresentation, there are no waivers available for immigrant visas.

London is known to take a broad approach to misrep, specifically the wilful aspect, where it may be presumed that "you knew". Recently however, the Administrative Appeals Office effectively told London to stop finding misrep as a matter of course and to actually look at whether the person intended to misrep.

My interactions with police officers were casual and even friendly, but this did mislead me into presuming I hadn't actually been arrested in the first place (no handcuffs, don't recall being read my rights, not detained in a cell etc). And so, when completing ESTA, it was a genuine and wilful answer that I had not been arrested for a controlled substance violation. This is my testimony and hence misrepresentation cannot be reached. Since then, and in commencing the K1 process, I have come to learn so much more about the nature of my police record and the implication of my arrests. I understand I am no longer eligible for VWP and as a tourist would always need to seek the appropriate visa.

* * *

I've presented a lot of information here, demonstrating the hundreds of hours spent preparing for my interview, consisting of reading and rereading the law, chats with various attorneys, reflecting on my past misdemeanours, and plenty of anguished reflection on the whole mess. I was always hoping for the best, but primed for the worst; I really did expect a denial. I was thoroughly consumed by the drama of it all. I had imagined a thorough grilling by the CO, suspicious glares from sturdy fellows carrying guns with important-looking lapels draped over their shoulders, maybe even a private room with a glass mirror where they take all the naughty people for intense psychological inspection and all because you'd been a fool one time in your life. I imagined it all.

I got none of it.

Beyond the regular, well documented questions about meeting my fiancé and getting married I faced little more than a few simple additional questions, which were then promptly proceeded by an approval. No fuss, no bother, no conferring with seniors. He was calm and polite as he gave me the good news. By reply I was of course overwhelmed with delight. I nearly fell over. I was full of smiling, fawning displays of excessive gratitude as I stepped away from the booth, stumbling over my own astonishment as I obliged my way out of the embassy. I will never know if my accompanying surprise was blatant to him. I cut just short of quizzing the CO further, certain for a moment that he had in fact made a terrible mistake in omitting that glaring charge of misrep.

And so it goes. On this day, I won, and I am truly grateful. God Bless America! I shall not waste this opportunity, and I'm beyond excited now that I can start preparing for my new life with my beautiful girl in crazy California.

If you're in a similar situation, here's a synopsis of my advice: stay calm, don't stress, be diligent, learn the facts and avoid conjecture, and go see a lawyer. Oh and don't let it consume you. I prepared so hard for this, and its impossible to say if I was better for it, but in any case i'm glad I did it all.

Peace everyone.

x

[Rebecca Jo 1,962]

Really well written post. And congratulations, by the way.

I have a question if you don't mind. You say you were asked a few simple, additional questions. So without being rude, did the CO address the cautions?

[PBJ 60]

Really well written post. And congratulations, by the way.

I have a question if you don't mind. You say you were asked a few simple, additional questions. So without being rude, did the CO address the cautions?

Thank you!

Yes, the additional questions related to the controlled substance arrest. I was asked to explain the incident, whether I was detained for any length of time, I was asked if I knew what the substance was, and whether I had ever otherwise been involved with drugs.

I was very surprised that the questions were so straightforward, although perhaps they appear that way since I was prepared for much more thorough line of interrogation. There's plenty of anecdotal evidence around suggesting that this would indeed be the case.

I would like to think the CO used his skill and experience to quickly measure my character and applied a reasonable level of discretion to his swift judgement, but I can't say for sure.

Upon reflection, I think one of the smartest things I did in preparation was to keep my emotions distinguishable from my reason. I was better able to see things for what they are. Yes it was a stressful time of great uncertainty, but I concentrated on the facts. Yes I sometimes felt hard done by, like our love was being unfairly punished, but thats not the purpose of immigration rules so I had to get over it. Yes I spent a long time regretting my mistakes, chastising a younger and more foolish version of myself, but hey thats life and the hardest lessons are sometimes the best ones in the end.

[Rebecca Jo 1,962]

Well done then. It sounds like you are on your way to California. I hope your life there will be long and happy.

[Mbrennan 15]

Congratulations on your approval!

Absolutely delighted for you and your fiancé!

You had a slightly tricky/unusual situation (and I am not meaning that in a bad way at all) however you didn't panic and remained calm and knew what you had to do.

It was very admirable.

Congrats again, and good luck for the future.

[Pitaya 2,576]

Congrats!!

[PBJ 60]

Congratulations on your approval!

Absolutely delighted for you and your fiancé!

You had a slightly tricky/unusual situation (and I am not meaning that in a bad way at all) however you didn't panic and remained calm and knew what you had to do.

It was very admirable.

Congrats again, and good luck for the future.

Thanks for the well wishes. I'm not sure I can agree about remaining calm, but I did try not to flood this place with my mania.

Seeing the 'ISSUED' screen update on CEAC today was just a dream. Possibly the best screen i've ever seen.

[Novembro 1,763]

So happy for you and your lady! Congratulations! I hope you have a wonderful trip over and enjoy California!

Also, cheers on the well-written posts. They will surely come in handy for many people in the future.

[Harpa Timsah 13,258]

Good job PBJ! Congrats!