Arrest History - Documents Unavailable

[HopeDakota 1]

Hello everyone,

This is my first post here but I've been doing a lot of snooping on the forums recently - very helpful.

My Japanese boyfriend is applying for a B2 tourist visa to visit my family (and me) in the USA. He unfortunately isn't able to use ESTA due to an arrest (over 10 years ago) and court record for a speeding traffic ticket (3 or so years ago).

We've obtained the court report for his speeding ticket and will have it translated - not a problem.

The stickler is the arrest 10 years ago was connected with suspected theft. All charges were dropped and the police didn't file it with the court - so there are no available documents. He attempted to obtain a police certificate (shows all police activity) but you need a letter from a government agency or the like stating why it's needed. Apparently in Japan you aren't allowed to request information on your own crimes except from the courts (but, again, it never made it there so they have no record). I called the US Embassy in Tokyo and they told me they couldn't provide him with a police certificate request document until such information was deemed necessary at his interview. Bummer.

He will be very candid and detailed about the incident at the interview: he had just moved to Tokyo; he found a bicycle on the street with no lock that appeared old and abandoned (common in Tokyo since it costs money to dispose of bicycles); he (stupidly) borrowed it with intent to return it later to the same place; he was stopped and questioned by the police in regards to the bicycle (also common in Japan - it's happened to many of my friends); he answered honestly that he'd found it, believed it abandoned and was just using it with intent on returning it to the place he found it; turns out that the bike was still registered to an owner; he went with the police to return it to the owner; the police took down his statement/picture/fingerprints and let him go (no bail, no charges, no conviction, no fines, no court record).

But since it could be viewed as a a CIMT we're worried he will be found inadmissible due to the arrest even without a charge. The trip is really just small stuff; we were hoping to eventually live in the US down the road if we get engaged (K1 visa and all that).

I was wondering if anyone has any helpful tips, ideas for documents we could bring (since we can't obtain the police certificate or documentation regarding the arrest yet), and maybe some words of encouragement or caution - any tidbits of wisdom are greatly appreciated.

Many thanks ~

[Rc123rc 528]

You need a copy of the I-160 and the NOA2. He can then go get his Police Certificate.

Please fill out a timeline when you get a chance.

[mindthegap 2,521]

No charge, and most importantly no conviction.... what makes you think he is ineligible to use the VWP/ESTA?

[Californiansunset 332]

No charge, and most importantly no conviction.... what makes you think he is ineligible to use the VWP/ESTA?

Because the question in the VWP application asks "Have you ever been arrested or convicted for a crime (...)? The question is whether he was really arrested. I wouldn't risk it though. If he used the VWP but wasn't eligible they might slap him later with a misrepresentation charge at the K1 interview.

[mindthegap 2,521]

Because the question in the VWP application asks "Have you ever been arrested or convicted for a crime (...)? The question is whether he was really arrested. I wouldn't risk it though. If he used the VWP but wasn't eligible they might slap him later with a misrepresentation charge at the K1 interview.

Does not matter.

The current wording is:

2) Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

In this case, they can truthfully answer no.

Even if you had been arrested for a crime involving serious damage to property, serious harm to another person, or a Govt. authority (aka, a Crime involving Moral Turpitude), the relevant law - in this case INA 212 (A) - states that no conviction (or caution, which is a formal admission of guilt) = no problem.

It is not arrests, but convictions that matter. Contrary to what many people think, an arrest, multiple arrests, being charged/tried and then subsequently acquitted/charges dropped, does not make you ineligible. Hell, even the webpage of the London embassy very incorrectly stated for several years that all people who had been arrested at any time needed a visa, so god knows how many people applied for a visa when they really didn't have to, or worse still, just didn't bother. They have now changed that wording to a recommendation instead of an absolute...not perfect, but an improvement.

So, in this case, the theft thing isn't an issue.

Traffic and speeding tickets are largely irrelevant and even if they weren't, that would still be a single conviction and would more than likely fall under the petty offence exception. A single conviction, with a maximum possible sentence of 1 year, and sentenced to less than 6 months in prison = no issue. Something more serious like death by dangerous driving, yes, would be an issue, but that isn't what we are talking about here.

As with most US immigration law, the devil is in the detail. INA 212 is here: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

[HopeDakota 1]

Thank you, everyone, for your responses. I really appreciate all of the assistance and thoughtful replies.

He had already attempted ESTA at the time I had posted and checked "Yes" to the arrest/convictions box based on the Japanese translation given (and probably due to him wanting to be extra careful). But thank you so much for the specifics, mindthegap. Reading through them has put me a bit more at ease knowing that he was never charged/fined for theft and the traffic conviction should be alright.

Hopefully the interview will just be a big formality and all will go relatively smoothly. Based on the way the interview goes, I will have him ask at the interview if he is eligible for ESTA in the future and report back.

[Californiansunset 332]

Does not matter.

The current wording is:

2) Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

In this case, they can truthfully answer no.

Even if you had been arrested for a crime involving serious damage to property, serious harm to another person, or a Govt. authority (aka, a Crime involving Moral Turpitude), the relevant law - in this case INA 212 (A) - states that no conviction (or caution, which is a formal admission of guilt) = no problem.

It is not arrests, but convictions that matter. Contrary to what many people think, an arrest, multiple arrests, being charged/tried and then subsequently acquitted/charges dropped, does not make you ineligible. Hell, even the webpage of the London embassy very incorrectly stated for several years that all people who had been arrested at any time needed a visa, so god knows how many people applied for a visa when they really didn't have to, or worse still, just didn't bother. They have now changed that wording to a recommendation instead of an absolute...not perfect, but an improvement.

So, in this case, the theft thing isn't an issue.

Traffic and speeding tickets are largely irrelevant and even if they weren't, that would still be a single conviction and would more than likely fall under the petty offence exception. A single conviction, with a maximum possible sentence of 1 year, and sentenced to less than 6 months in prison = no issue. Something more serious like death by dangerous driving, yes, would be an issue, but that isn't what we are talking about here. And I know of someone who had a lawyer and he didn't catch that.

As with most US immigration law, the devil is in the detail. INA 212 is here: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

That is very interesting. It's a common thing in Australia to get charged with "guilty. Proven without conviction" if you are a first time offender. I think it's a little worse than a caution because you have to go to court and then get that result.

I've heard of so many people that got that charge or whatever you want to call it and were told that they can't use the VWP anymore. In addition they had to get a waiver in order to obtain a visa. I even know of someone who got a lawyer and that lawyer didn't mention that. They had to get a waiver for that.

Edited September 26, 2016 by Californiansunset

[Californiansunset 332]

Does not matter.

The current wording is:

2) Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

In this case, they can truthfully answer no.

Even if you had been arrested for a crime involving serious damage to property, serious harm to another person, or a Govt. authority (aka, a Crime involving Moral Turpitude), the relevant law - in this case INA 212 (A) - states that no conviction (or caution, which is a formal admission of guilt) = no problem.

It is not arrests, but convictions that matter. Contrary to what many people think, an arrest, multiple arrests, being charged/tried and then subsequently acquitted/charges dropped, does not make you ineligible. Hell, even the webpage of the London embassy very incorrectly stated for several years that all people who had been arrested at any time needed a visa, so god knows how many people applied for a visa when they really didn't have to, or worse still, just didn't bother. They have now changed that wording to a recommendation instead of an absolute...not perfect, but an improvement.

So, in this case, the theft thing isn't an issue.

Traffic and speeding tickets are largely irrelevant and even if they weren't, that would still be a single conviction and would more than likely fall under the petty offence exception. A single conviction, with a maximum possible sentence of 1 year, and sentenced to less than 6 months in prison = no issue. Something more serious like death by dangerous driving, yes, would be an issue, but that isn't what we are talking about here.

As with most US immigration law, the devil is in the detail. INA 212 is here: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

Just researched it. Even though you might not haben been convicted in your country (in this case Japan), you still need to consider yourself convicted under US immigration laws. You might've been subject to a pardon and not have been convicted because you were a first time offender but you would still have to answer yes to an ESTA question.