mitch48

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.

Noorah101

For a K-1 visa, that's correct. The problem is how a CIMT fits into wanting to travel on the VWP. You can't compare a K-1 visa result with an ESTA result.

Rene

mitch48

Hi Rene,

Thanks for replying but I think you've misunderstood my question.

Firstly, I'm asking why the ESTA help section would include details and further reading which are immaterial to actually answering the question (i.e. an arrest, yes or no? CIMT, yes or no? Rather than implying that a CIMT actually being a CIMT may be influenced by factors such as those alluded to in the notes, e.g. exception clause).

Secondly, whilst I understand that exception clause is relevant to K1 visa application but not ESTA application, I'm interested in any case studies of people having ticked "no" on ESTA having misunderstood the relevancy of the exception clause (i.e. applied it to the ESTA) and had a misrep or further problems when later applying for a visa. I have yet to find one example, despite a lot of research and reading (yet I have found many who didn't get a misrep or need a waiver).

jeffreyhy

Because the details a further reading are material to answering the question. Very few participants in this forum are immigration lawyers. If you are interested in immigration case law you would fare better asking this question in a consultation with a US immigration attorney - they research case law for a living. Regards, JEff

mitch48

Thanks Jeff.

Even a few would be great - but you don't have to be a lawyer to have examples (right?) Its more aimed at any other contributers (or readers who may just be lurking) who may also have examples. Hopefully such cases aren't too unheard of to be shared (but then again hopefully they are).

md95065

It shouldn't be surprising. Whether or not something is a "crime involving moral turpitude" is a complex matter and there are no simple answers

Because the question isn't "have you ever been arrested ..." it is "have you ever been arrested for a crime invoving moral turpitude ..."

... which means that, if you have been arrested, the correct answer to the question depends on that complex issue of whether the crime for which you were arrested is or is not a CIMT ...

Well, the question only allows for one of two answers - "yes" or "no" so, ultimately, the person completing the ESTA application has to pick whichever one they believe is correct.

Noorah101

I agree, it seems that even if you mistakenly ticked "no" on ESTA when you should have ticked "yes", it doesn't seem to affect a future K-1 or Immigrant Visa process. My guess is that for those visas, you need to submit a police report anyway, so they already investigate whatever they need to, regardless of what you ticked on ESTA in the past.

Rene

mitch48

Thanks Rene - this is what seems to be the case. I think its because if something falls under the exception clause, its not counted as a misrep because it can't satisfy the condition that it needs to be a material misrep. Even though the exception clause applies only to a visa, and (seemingly) not to an ESTA, because the VWP doesn't give any benefit over a visa a misrep charge can't be applied.

If correct then the implications of this are that many people are ticking "yes" when they could actually instead apply the exception clause as rationale for defining their arrest as non-CIMT for ESTA. I hear that London is particularly keen to hand out misreps, but I'm pretty sure that you can't be misrep'ed for ticking "no" if you fall under exception clause.

Noorah101

Well, I disagree overall, because the question is specific as to ONLY whether you've been arrested for a CIMT. The answer is either "yes, I have", or "no, I haven't". There is no answer for "well, I have, but since there is an exception clause, I'm going to tick no because I believe I'm exempt". The applicant should tick the box for "yes", if they HAVE been arrested for a CIMT, and then if ESTA comes back denied, let the ConOff do his/her job in saying they fit the exception clause.

Rene

crg

I smell what you are stepping in, and I generally agree in spirit that an argument can be made for what you are saying, but it's more complicated than that.

Can the person be found to have misrepresented a material fact to gain an immigration benefit if they were admissible to the US anyway?

That's a tough one. If the benefit being sought is admission/entry then generally not but it's happened.

What if the ESTA approval is considered an immigration benefit in and of itself then that could be a yes.

A person who gains admission by lying about a prior CIMT arrest that qualified under the single petty offense, juvenile etc exceptions to the CIMT inadmissibility may not have misrepresented a material fact because they would have been admissible based on the true facts.

A person who gains admission by lying about a prior CIMT arrest on the ESTA would not have been approved an ESTA regardless of whether or not the arrest made them inadmissible. So what if ESTA is considered a benefit?

Add to that that the misrepresentation of a CIMT that fell under the exceptions could have cut off a line of questioning that would have revealed another inadmissibility. Such as someone who committed a minor CIMT that qualifies for the exception who did so due to controlled substance use/addiction or mental issues that made them a danger to themselves or others. That person's misrepresentation prevented discovery of an inadmissibility under health grounds under 212(a)(1).

A misrepresentation of a single prostitution arrest could have cut off a line of questioning that would have revealed an inadmissibility per 212(a)(2)(D).

Also, if a single petty offense conviction happened within the US on a prior VWP entry then it could be material because of a number of reasons. A visitor who is convicted and spends the night in jail has violated their non immigrant status even for something like disorderly conduct and prior status violations bar someone from future VWP use. Also, what if the conviction was for stealing from a US employer when the person was working in the US illegally. Lying about that arrest cut off a line of questioning that would have revealed that the person had violated a previous VWP entry by working.

I know of at least one guy who got nailed with a fraud/misrep at the border and by the state department because he was popped for stealing a t-shirt in the US and lied on the VWP form. It was within the exceptions but even his very experienced immigration lawyer who went the route you are describing couldn't get it sorted after an extraordinary effort and he ended up with a waiver he may not have needed. He's a banker who can visit, but a green card would be extremely difficult with the fraud/misrep.

These cases are complicated so I would not suggest that someone misrepresent even an immaterial fact and feel like they will be in the clear because they are sure they are right. Keep in mind that the decisions will be made by people who may not share the same view and there are limited appeals (if any) to the decisions. You could be right, but still screwed.

jeffreyhy

Yes. And beyond that, not only is it "for a crime involving moral turpitude", is it for " ... involving moral turpitude for purposes of the Immigration and Nationality Act." (The emphasis is mine.) Which is why what one reads on that 'help page' is indeed material.

Regards, JEff

scrubbedexpat099

Is this an intellectual exercise or do you have a situation in mind?

mitch48

Good question - but from what I have read, it isn't considered a benefit over an actual visa from their point of view. Sure, its easier, it saves you time/money/hassle etc, but this doesn't count as benefit from an immigration pov. In fact its substantially worse - only 90 days visit and waiving of all rights.

In terms of opening up a line of questioning - yes, if a simple exception clause couldn't apply and there were other factors then it becomes a different situation. For the purpose of the thought experiment though - its just a simple exception clause, no other factors to be uncovered that would be a problem.

Your example of the guy stealing a t-shirt is the closest I've now seen in terms of the case study to go against what I'm suggesting - but its still not quite there - I can see how theft on American soil during a VWP trip would create more problems outside of what I'm trying to describe.

To keep things simple though (I can see how the various ifs and buts, definitions and various emphasis on words in documents etc could just run away with itself after the usual fashion) - does anyone know of anyone or any situation where someone who ticked "no" about an exception clause CIMT arrest on an ESTA later got a misrep for it when applying for an immigration visa?

zerlesen

"Benefit" doesn't necessarily have its colloquial meaning here.

jeffreyhy

You seem to be writing here about the VWP, not about ESTA. ESTA and the VWP have a close connection, but they are not the same thing.

Regards, JEff