Another question about ESTA and cimts

[mitch48 4]

Hi all,

Firstly, I've read a lot of threads about ESTA's and CIMTs, people who have traveled on the VWP by ticking yes, later worried about misreps etc etc. I understand and agree with the logic behind the usual advice.

Typically, people are confused about whether to tick "yes" to the question, when it would entail fees, time and trips to London. They are advised "if ever arrested for a CIMT, then tick yes - regardless of the circumstances".

On the ESTA form, if you tick "yes", then a popup says something along the lines of "are you sure?" signifying that the consequences are going to be bad - and encourages you to read the help page, which then reads:

"Crimes involving moral turpitude - Such offenses generally involve conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed to persons or society in general. There are factors, such as the age of the offender or the date of the offense, that may affect whether an offense will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act.
For further information refer to § 212(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2), § 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) and corresponding regulations in the Code of Federal Regulations."

This confuses me for two reasons:
1) Their description of moral turpitude doesn't seem particularly clear or comprehensive at all, which is surprising considering the people this will affect, and the importance of these documents.
2) Why would they even mention the part I have put in bold, as well as the "further information..." bits if the question is just "have you ever been arrested..."?

This simple binary "yes or no" element which is reinforced again and again in forums seems counter to the fact that they themselves introduce information which is not material to that simple question about arrests. I have read on this forum, for example, "whether a crime is a CIMT or not is not decided by the exception clause, just whether it is admissable or not for immigration - tick "yes" in the box". Yet - right there in black and white - it reads "that may affect whether an offense will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act." Why would they say that, at all, if it wasn't relevant to ESTA?

It seems as though you could argue that the help suggested that an arrest might not be considered CIMT if it indeed fell within the exception clause that they reference via the notes.

Anyhow, my question is (and I'm sure this is relevant to a great many people), is there any actual case evidence of a person ticking "no" for this, when actually having an exception clause CIMT arrest, then having misrep problems later down the line?

In all my trawling, I have found two cases of people doing this and not having misrep problems when getting a K1 visa for example. In situations where waivers were required, the situations always (in my research) don't have the exception rule apply because there is more than one offence (or some other reason).

Any thoughts or case studies would be welcome. Thanks.

[Boiler 43,429]

From what I have seen you basic premise is wrong, I doubt if it effects many. A very small percentage.

There are fairly clear examples of what it is and what it is not. If you are not certain then you probably need competent legal advice.

[mitch48 4]

From what I have seen you basic premise is wrong, I doubt if it effects many. A very small percentage.

There are fairly clear examples of what it is and what it is not. If you are not certain then you probably need competent legal advice.

Thanks Boiler, but I'm not sure I really understand what you mean by "There are fairly clear examples of what it is and what it is not."

Can you let me know the sources you're referring to when you say "from what I have seen"? That's exactly my point, through all my reading I haven't seen any examples of this affecting anyone - but I have seen many examples of misreps where other circumstances affect it (i.e. its not a clean exception clause case).

An exception clause CIMT arrest is immaterial to visa admissibility, and the ESTA doesn't provide a benefit to a visa for immigration purposes (the opposite in fact - 90 days visit and waiving of all rights). So that's two requirements for a misrep not available in this scenario.

Hence my asking for examples, because I don't see how it would be possible.

[Boiler 43,429]

An immigration benefit would include visitor visa's.

[mitch48 4]

An immigration benefit would include visitor visa's.

I know visitor visa may be a benefit in and of itself.

The point in terms of requirements for a misrep to be applied, is that the VWP doesn't provide an immigration benefit over the visitor visa.

[Boiler 43,429]

For these purposes the VWP and B are the same.

[mitch48 4]

For these purposes the VWP and B are the same.

Yes, i.e. there is no benefit of the VWP. Is that what you're saying? I'm not too clear from the brevity of your replies.

[Boiler 43,429]

For the purposes of this discussion entrance on both the VWP and a B for example provide an immigration benefit.

So if you lied on ESTA or a B application and you obtained entrance to the US when the issue you lied about was material then you have major issues.

The common one on the VWP is to 'forget' your criminal history.

There are many on B's. making up wives and children to show ties seems common.

[chrisclassic 14]

so what are you saying he is going to have major issues in his k1 visa journey ??? because of the vwp ???

[Boiler 43,429]

I do not know, he never mentioned he had any issues.

[chrisclassic 14]

issues obtaining his k1 at the interview because of misrep of vwp ? even if it was accidental

what do you think will happen or how the interview will go

honest opinion

[Boiler 43,429]

That would depend on the specifics of the case, usually at this point it is Lawyer time.

Edited June 11, 2013 by Boiler

[chrisclassic 14]

say it was ummm a simple cimt and forgotten and made honest mistake but is truthful during his interview ?

[Boiler 43,429]

To use the English vernacular if somebody said that to me I would assume they were having a laugh.

[chrisclassic 14]

and please let me know what you mean by having a laugh

as in think they have no chance of the visa ............