mum2mom23

Hi all,

I am pretty sure my police certificate will come back saying No Live Trace owing to a caution I received around 10 years ago. Basically, I was put into a black cab in London (drunk and asleep) but the person that put me in the cab didn't check I had any cash on me and I was unable to pay it. The cab driver subsequently took me to the police station who cautioned me under 'making away without payment' which I was told was not as serious as theft.

What I am trying to understand is if this is likely to be a problem for the visa, or whether with the full subject access request from ACRO and the police certificate saying no live trace, that it will be fine. I will of course explain everything at the interview as well when asked but I have overwhelming anxiety that this could be the end of it all for my family!

If anyone has had their visa successfully approved following a no live trace certificate I would very much welcome hearing from you!

BritInParis

‘No Live Trace’ just means you have a criminal record which is ‘spent’ for the purposes of the Rehabilitation of Offenders Act 1974. As this piece of legislation does not apply outside the UK you’ll need to provide your Subject Access Request in order for the consular officer to make an informed decision regarding your visa application. Generally speaking only ‘crimes involving moral turpitude’ would make you ineligible to emigrate to the United States.

’Making off without payment’ is considered a crime under S.3 of the Theft Act 1978 and theft is consider a CIMT therefore you may need to obtain a waiver of inadmissibility in order to be granted a visa.

mum2mom23

Do you have any insight in to whether this is a decision that is made depending on the individual circumstances eg that it was just a caution I accepted rather than anything more serious, and whether the circumstances are taken into account or is it a case of it comes under CIMT and a waiver would be needed?

and is getting a waiver something that can be done alongside the I-130 or an entirely different process that could delay everything further?

BritInParis

A caution is an admission of guilt but obviously it’s a less serious matter than a custodial sentence. Whether you will be required to apply separately for a waiver I cannot say.

civilservant

The standard advice would be to seek an immigration attorney. My personal belief is that you will likely be fine, even if you do need a waiver. Will you need one? I would say yes. You certainly will need all the records from the station that dealt with you.

You don't need a waiver until you are denied at interview due to the CIMT. It will, 100%, add months to your case if you do end up needing one.

S Folinsky

My initial reaction to OP’s inquiry is that they have no basic knowledge of the basic set up of the process. In particular, the dichotomy between the I-130 petition process and the subsequent visa application process.

My second reaction is what is this retired immigration attorney missing in the facts of OP’s situation? Both BritInParis and now you seem to say that OP will need a waiver. How do you reach that conclusion?

mum2mom23

My understanding so far is that my husband is filing the I-130 petition for me, and that on that form it asks if I have ever been arrested which I have, and cautioned. From reading, I gather that I will need to take my police certificate which will more than likely say No Live Trace along with my subject access request information for the interviewer to review at my interview in a few months time. What I am not clear on is whether the decision to approve the application (bearing in mind the old caution) is up to the interviewer on the day or whether there is a hard ‘no’ that I’m missing, in which case I’d like to understand if I can preemptively apply for a waiver while simultaneously going through the I-130 process rather than it being denied at interview and me and my kids having to be separated from my husband for several more months of re processing. Perhaps I’m not being clear and mixing terminology, I find it all very confusing

S Folinsky

Yes, it can be confusing to the uninitiated.

That said, immigration cases are best analyzed via question trees to avoid classic principle of GIGO. I’ve read all your posts and it strikes me that you may not have followed the tree.

Good luck.

Noorah101

If you do end up needing a waiver, it can't be applied for preemptively. You won't know if you need a waiver until you have the visa interview.

Rene

S Folinsky

I agree with the first sentence of your post. That said, the first word is quite important - if.

As to your second sentence, with a complete set of facts it is often fairly straightforward as to whether a waiver will be necessary or unnecessary. Although the dividing line may be fuzzy at times, we have insufficient facts to make an informed prediction. I know that certain facts may be implicit enough to give some confidence in prediction, but there are competing implications here.

[BTW, the 1990 Immigration Amendments made a slight change in the petty offense exception. I believe it was meant only to be a matter of style. In 2000 had a client who had been found excludable in 1988 due to a minor conviction with no waiver possible and had been denied an immigrant visa. It turned out that minor 1990 amendment had made him eligible for the petty offense exception. Post SEO recovered the still valid visa petition and accepted a new visa application. We made a family very happy at their reunification.]

mum2mom23

Would it be helpful if I gave you the facts? I’d appreciate your perspective with the full picture.

1) 9 years ago, I was on a team night out. I worked in the banking industry, was the only female in the team and the junior. Historically when I went home, the head of the team paid for my cab home for safety reasons, and safe to say I didn’t have the same alcohol tolerance as the rest of the team.

2) On this particular night I was put into a cab to go home, but the cab wasn’t paid for. I was asleep so didn’t check. This was also before contactless payments or Apple Pay etc.

3) When the cab driver arrived at my address he woke me up and told me the cab had not been paid. I explained I didn’t have cash but would check my apartment as my flat mate paid her share of the rent to me in cash at the time, but the rent wasn’t due and there wasn’t any cash in the apartment. I came back downstairs and asked him if I could try and take cash out of a cash machine nearby.

4) He took me to the cash machine but I input my PIN number incorrectly 3 times and it blocked the card. I explained that my parents lived 10 minutes away, I had keys to their house and they would definitely have cash.

5) As exceptionally poor luck would have it, the road my parents live on has the same name as a road closer to my flat. The cab driver went to the wrong address and wouldn’t allow me to leave the cab, he knocked on the door himself (the wrong door) and the strangers rightfully told him they had no idea who I was.

6) The cab driver took me to the police station where I was borderline hysterical at this point, literally trying to give him my personal belongings in exchange for the £35 cab fare. Items that were worth more than that even if sold on eBay. He told the police that he wanted me arrested. The police asked if I had the cash to pay and I explained all of the above. The cab driver left without anything and I left with a caution for making away without payment and a fine for drunk and disorderly. The latter because they said I’d have put my PIN number in correctly if I hadn’t been drunk and was inconsolable when I arrived. Probably true although it was a new card, and I was inconsolable because I couldn’t believe this was happening.

From my perspective, this chain of events are deeply unfortunate and stem from a really poor misunderstanding. If I had any intention of stealing or not paying for the cab fare, I would never have returned back to the cab after realising I had no cash in my apartment. I also wouldn’t have desperately tried to give him my belongings in exchange. One of the police officers actually told me they felt sorry for me! The only reason I accepted the caution was because I was so distressed being in the police station and being told I would have to go to court if I didn’t accept a caution, I thought it would be the least damaging way out. I also just really wanted to get home to feed my dog who had been alone for nearly 24 hours by the time they had finished processing paperwork.

lansbury

I may have been retired for some years now but there is nothing in your account of events which suggests a "making off without payment" is supported. How not being able to put a pin number into an ATM makes someone disorderly beggars belief, and I say that as someone who has arrested a great number of people for being drunk and disorderly.

mum2mom23

They told me the reason I’d have blocked my card with the incorrect pin was because I was too drunk. I believe the disorderly part came from how hysterical I was at the point they told me I was being arrested and cautioned. You have to understand, I thought that was it for me that I would lose my job and then my home etc. I was in a complete state of overwhelm and still trying to give away my belongings to cover the fee of the taxi. I absolutely categorically never intended to make away without payment. I would never dream of it; I have a family member who is also a cab driver and therefore had a lot of respect for our London cabbies. When I was told it would need to go to court if I didn’t accept a caution, and that if I was found guilty in court of making away without payment it could be so much worse, I believed accepting the caution was the right outcome. It really sounds like there should be more to the story but there truly isn’t. It was as someone else put it a complete comedy of errors although one that seems could seriously upturn my family’s life at this point

S Folinsky

Basic comment. The effect of the facts is two steps. First, does a ground of inadmissibility apply? Second, if it does, is there a waiver available and is it likely to be granted.

The first step is quite OBJECTIVE. It is a yes-no question dependent upon the legal components of the conviction or admission of the offense. Strictly speaking, the actual facts of what happened do not matter. (For example, murder is a CIMT. But let’s say that the actual conviction is for an offense called Involuntary Manslaughter, a lesser included offense. No matter what the actual facts are, the elements missing from the conviction takes the offense out of CIMT-land).

Rete

Drunk or not, why didn't you ask for one phone call and called your parents to come to the station to pay the driver?