ESTA - Arrest or not?

[ColGil 126]

I'm asking on behalf of my brother. He was falsely accused of rape when he was 17, he's now 18 and has been found Not Guilty by a Jury in court. At the time of the accusation, he was taken into Police Custody and interviewed. He wasn't charged but was held and appeared in court to receive Bail Conditions. The only conditions were that he shouldn't communicate with potential witnesses. He has been told that he has no criminal record now, so my question is this. Should he tick "yes" on the ESTA application regarding arrest, and then go down the B2 route, or because he was found not guilty and his record wiped, should he tick no? We don't want to run the risk of getting banned and denied entry to the states, but at the same time, we don't want to go down the B2 route unnecessarily.

Any advice would be greatly appreciated.

[blest.but.strest 50]

I'm asking on behalf of my brother. He was falsely accused of rape when he was 17, he's now 18 and has been found Not Guilty by a Jury in court. At the time of the accusation, he was taken into Police Custody and interviewed. He wasn't charged but was held and appeared in court to receive Bail Conditions. The only conditions were that he shouldn't communicate with potential witnesses. He has been told that he has no criminal record now, so my question is this. Should he tick "yes" on the ESTA application regarding arrest, and then go down the B2 route, or because he was found not guilty and his record wiped, should he tick no? We don't want to run the risk of getting banned and denied entry to the states, but at the same time, we don't want to go down the B2 route unnecessarily.

Any advice would be greatly appreciated.

Always be honest with any USCIS application and let them know about all arrests if they ask for it.

[ColGil 126]

Thanks for the reply, jut to clarify, we wouldn't be processing via USCIS, I'm referring to the question on the ESTA application:

"Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities? "

If we select yes to this option, then he would apply for the B2 visa direct with London embassy.

Other than this false allegation, my brother has never been in trouble with the police/law at all

[Boiler 45,670]

How did he end up in Criminal Court without being arrested?

[aaron2020 11,651]

I'm asking on behalf of my brother. He was falsely accused of rape when he was 17, he's now 18 and has been found Not Guilty by a Jury in court. At the time of the accusation, he was taken into Police Custody and interviewed. He wasn't charged but was held and appeared in court to receive Bail Conditions. The only conditions were that he shouldn't communicate with potential witnesses. He has been told that he has no criminal record now, so my question is this. Should he tick "yes" on the ESTA application regarding arrest, and then go down the B2 route, or because he was found not guilty and his record wiped, should he tick no? We don't want to run the risk of getting banned and denied entry to the states, but at the same time, we don't want to go down the B2 route unnecessarily.

Any advice would be greatly appreciated.

Hi,

You tick yes since he was arrested.

He was charged and that is why there was a trial. You can't have a trial if there are no charges. You are mistaken to state that he was not charged.

To be tried for a crime, the defendant is by definition arrested and charged with a crime.

To be tried for rape and found not guilty, your brother was arrested and charged with rape.

Edited August 7, 2014 by aaron2020

[ColGil 126]

Ok, actually hearing back what I said makes more sense. I obviously wasn't there when he was in custody but I was there in court and the prosecution and defence both referred to his police interview (DVD). The major point from the defence was "You can only hold someone for 12 hours, you held him for 11 hours and 35 minutes before questioning him. If you thought you had a case you could have charged him and continued to interview him beyond the 12 hours but you didn't charge him" I assume now they meant "you didn't charge him there and then?"

Sorry wasn't trying to give misinformation, just not used to the legal system. He's my brother, he is innocent, and given that he's 18 and some girl accuses him of rape is beyond me. The fact he's found not guilty I just struggle to understand how that can hinder him in life, especially coming to visit his big bro who will be living in the states soon.

Thanks everyone for your input. I'll get him to submit his visa application soon. I'm sure he'll be fine given he was 17 at the time of the accusation and was found not guilty in a court of law (just for the record, Scotland also has a "not proven" verdict which is an acquittal but holds the stigma of not guilty yet not innocent, but he was rightly found innocent of the charge [see I hear it now - charge])

[Nich-Nick 3,354]

I'm asking on behalf of my brother. He was falsely accused of rape when he was 17, he's now 18 and has been found Not Guilty by a Jury in court. At the time of the accusation, he was taken into Police Custody and interviewed. He wasn't charged but was held and appeared in court to receive Bail Conditions. The only conditions were that he shouldn't communicate with potential witnesses. He has been told that he has no criminal record now, so my question is this. Should he tick "yes" on the ESTA application regarding arrest, and then go down the B2 route, or because he was found not guilty and his record wiped, should he tick no? We don't want to run the risk of getting banned and denied entry to the states, but at the same time, we don't want to go down the B2 route unnecessarily.

Any advice would be greatly appreciated.

I like to ask the source when I have a question. I was curious about this particular issue so asked CBP using this contact form https://help.cbp.gov/app/ask

The response:

It is difficult to provide a definitive answer regarding criminal charges without first reviewing the actual charges and court documents. If you answer "Yes" to Question B and are denied, please request and obtain a criminal records transcript or court disposition for immigration purposes from your countrys law enforcement authorities. You can then have it scanned and email it back to us (if the document is in a language other than English, you must provide an official English translation). When we receive it we will review it and take the appropriate action. If the charges make you ineligible to travel visa free, or, if the police certificate does not list individual charges and/or violations of law then your application remains denied and you will require a non-immigrant visa.

The same contact link can be used and there is a way to attach court and police documents with the question.

Get a subject Access Report for ACPO and anything available from the court. You will need those even if applying for a B2.

Edited August 8, 2014 by Nich-Nick