Hi:

There was a post YESTERDAY by Attorney J Craig Fong in the string with L1b and Caution in the title. J discussed what he found out about UK Cautions.

I think we may be dancing around a central question here, one that has come up several times in the past few days. What is a caution?

As I understand the use of a "caution," -- and I had to consult a barrister in England a year or so ago because I was faced with this exact question for a client -- the person cautioned is viewed as having committed the offense but the legal system has merely exercised its prosecutorial discretion and allowed this person off with a warning. However, the barrister informed me, under British law it is effectively viewed as a guilty plea or conviction. That is, if the alleged perpetrator maintained that s/he did NOT commit the act, did NOT do the deed, then there would be no caution. The Crown would either choose to prosecute the matter before a trier of fact, or the Crown would decline to prosecute in which case there would be no conviction.

It seems to me that, if this barrister is right, we never even REACH the question of whether it's an "arrest" or not. The conviction or guilty plea are legally-established facts.

Perhaps someone would consider contacting a barrister in the UK to verify this information.

From the US point of view, the issue is NOT whether the matter still appears on law enforcement computers, NOR whether because of the passage of time one can finesse the answer, NOR EVEN whether one could-would-should run the risk of US immigration authorities ever finding out. If this incident is considered a conviction or a guilty plea under British law, I feel certain that the answer to the question on the DS-156 visa application is "yes."

Yes -- but how does that help the OP? J Craig Fong established that a caution was the equivalent of a conviction. But the question here is not whether he was or was not convicted of a crime but whether that crime was one of moral turpitude.

But if the OP has been cautioned (or even convicted in a court of law!) of a single crime that does not involve moral turpitude and is not a drug offense, s/he doesn't need to complete a DS-156 but can use the VWP instead.

Hence the central question is whether his/her conviction for "common assault" is a CIMT.

Regarding the question of crimes of moral turpitude (CIMT): I would need to get to the office to consult my statutes and regs to look up the enabling regulations for the visa waiver program (VWP). At the moment, sitting here in my PJs is not conducive to a very precise answer.

Some have asserted that if a conviction is not for a CIMT, then a visa is not necessary, and the perpetrator could use the VWP. I am hesitant to paint the answer so broadly. Here's why.

If one looks at the DS-156 visa application used at the USConGen for all nonimmigrant visa applications, the question regarding crimes is: "Have you ever been arrested or convicted for any offense or crime ... ?" Very broad.

In contrast, the language (poorly written and punctuated) on the I-94W for entry on the VWP says: "Have you ever been arrested or convicted of an offense involving moral turpitude; or a violation related to a controlled substance; or been arrested or convicted of two or more offenses for which the aggregate sentence to imprisonment was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?"

The I-94W throws around words like "arrested," "convicted," "violation," and "immoral," which are open to highly imprecise interpretation. Anyone who thinks that these phrases ARE precise need only trace the discussion on these boards.

I ask myself: If the policy for the Visa Waiver Program was to allow low-risk, low-overstay, low-fraud visitors from certain countries to avoid the hassle of getting a visa to come to the USA, then why would the crime-screen question be so riddled with imprecision? If VWP is meant to allow admission to only the very cleanest of cases, the question on the DS-156 would be more appropriate.

Yes, I realize that one can look at that last rationale a different way. However, in my experience, is is quite dangerous to assume the benevolence of US immigration authorities, especially when it comes to crimes.

The conservative attorney in me would counsel someone -- without more facts -- with any arrest or conviction to apply for a B-1/B-2 visa to avoid being denied admission. Is it inconvenient? Of course. Is it MORE inconvenient (and expensive) to be turned around and sent home on the next flight? You betcha.

As someone mentioned earlier, if i get in touch with the embassy they will surely tell me to apply for a visa regardless of whether i need to or not, and i'd like to be sure because if i do apply it means taking a day off work, travelling to London which is 6 hours each way, and paying the visa fee which i believe is around $110, or £60. So im sure you can undestand why i'd rather avoid this if i could. I just dont know where i can get a definitie answer before contacting the embassy.

According to wiki (not the most reliable source i know!), this is classed as a crime NOT involving moral turpitude -

"Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly)"

Although on the embassy website it says ANY arrest should be declared whether you were conviced or not. Its all so confusing!

Here in the UK a caution is really considered nothing more than a warning so i think i can honestly say i have not been arrested for a crime involving moral turpitude, but im travlling with my girlfriend so the last thing i want to do is leave her stranded in another country while im refused entry so is it worth the risk?

The problem is, I think the attorney is telling you he thinks a caution IS considered an arrest - but that should be checked out with a barrister in the UK.

It doesn't matter what the UK thinks about it, it matters what the US thinks.

Personally, I suspect you are not a hardened criminal that we need to keep out of here (I'm a yank). But to avoid potential problems in your future (who knows what the future would bring) I'd suggest you either a) get an actual legal consultation or b) get the visa, which you'd *probably* be approved for - if you didn't do anything serious.

It all comes down to risk assessment in the end. One of the features of the crazy US immigration system is, though, that being extraordinarily truthful can hurt you just as much. There was some poor guy the other day on the board inquiring whether admitting to the examining physician that he had smoked MJ a couple of years back would mess up his chances for, IIRC, a K-1. We all know he's now probably not coming to the US now!

I think the only method is to make your own risk assessment based on your circumstances and with as complete as possible knowledge of the facts. Being overly truthful can damage you just as much.

The language on the I-94W is....well.....American, I'm afraid. Take a simple idea and then let it evolve to become totally unintelligible. It would be nice of you could argue it out in a court of law if you transgressed it since I'm sure a competent lawyer could make mincemeat of it. Unfortunately, this is generally unavailable to many who incur the wrath of the dispensers of U.S. immigration law. And really all we are doing is shooting ourselves in the foot -- have you seen the tourism figures?

Your suggestion that all who have ever been arrested from VWP countries should apply for a visa would probably mean the U.S. Consulate was competing with the NHS as to who was indeed Europe's largest employer.

You also fail to disclose in your summary that many who apply for the visa will be denied anyway, especially if the arrest was recent.

If you can truthfully answer no to the I-94W question, I think there's very little likelihood that they are going to follow up with a verbal question to probe more deeply. And thus, IMO, you have a very good chance of passing by the drones without a smear on your record.

You are looking for guarantees. The only guarantees of entry to the U.S. is citizenship -- and under our current regime even that could be considered suspect.

Entry on a VWP can certainly be denied at the port of entry but so, indeed, can entry on a B-2 visa issued by the consulate.

Agree almost entirely.

But don't mislead the poor guy - we are NOT turning citizens away these days. Even bolsheviks (sp?)

Nope -- just terrorists!

http://www.sfgate.com/cgi-bin/articl...NGQ5KPVV91.DTL

Hi:

J is in a consultation and I just returned from court. J and I had batted around the issue in a brief conversation yesterday. It may very well be that a part of the "Caution" process is an "admission" of the offense. The term "conviction" has been subject to much in the way of litigation over the years. In an attempt to clarify the term, section 101(a)(48) was added in 1996. Given the numerous jurisdictions in the US, the permutations of criminal sentencing is quite varied. Also, it should be noted that the criminal grounds of inadmissiblity [section 212(a) ] terms such as "conviction" "admits" and in the case of drug traffickers, "reason to believe" are thrown about.

The question about a "caution" is a fair one -- but it appears to be one of those gray areas that appear all the time in Immigration Law. However, it should be noted that although the courts may resolve ambiquities in favor of the alien, the DHS will ALWAYS consider it "clear" that law is against the alien. An examination of John Lennon's case is a prime example.

Oscar, I believe if you fly out of Dublin you clear US immigration there, so that would prevent you stranding your gf in the US if you were refused entry. Basically noone can tell you what the odds are, as it depends entirely upon the officer on the day.

It's a double edged sword that, because it's only a short punt back, they tend to be a bit more stricter with people apparantly, otherwise that would be my recommendation too...

But at least you aren't held in jail overnight.