Jammydodga

Hi,

I'm trying to work out if I can enter the US on the VWP.

I was convicted when 17 of affray. At 23 I needed to go to the US for work, and to avoid the career destroying risk of being being bounced at the airport I applied for a B1 B2 visa, successfully.

I haven't been back since, but I want to go now. My visa is no longer valid, my old passport was destroyed, and anyway, I think it may have expired.

After looking into it more, I think that affray may not constitute a CIMT, does that mean I can apply for VWP? Will doing so be complicated by the fact that I already applied for the visa and declared the arrest previously? I don't know if my visa was granted because I was under 18 and it was more than five years since, or whether they determined the crime was not a CIMT

Additional info, I was arrested and given an on the spot fine when I was 22 for streaking a police car. This came up on my police records check for the visa and obviously wasn't a problem.

Would applying for an ESTA clarify the situation? Or would it constitute fraud if the affray arrest was in fact a CIMT? (I.e. if I now say no to the question)

Additional question, I'm currently working abroad in South East Asia. Can I apply for the visa through the local embassy, or will I need to go back to London?

BritishExpatriate

It says on the help section of the ESTA website that things such as your age at time of offence will determine whether or not a CIMT was committed. It also says on the ESTA website, that you should consult the INA (Immigration and Nationality Act)

I suggest you read pages 24 to 26 here before deciding whether or not you committed a CIMT when you were 17.

In particular, on page 24 it is stated:

"A foreign conviction based on conduct which constitutes an act of juvenile
delinquency under U.S. standards, however treated by the foreign court, is
not a conviction for a “crime” for the purpose of INA and, accordingly, may
not serve as the basis for a finding of inadmissibility under INA
212(a)(2)(A)(i)(I)."

"Juveniles between the ages of 15 and 18 at the time of commission of an offense will not be considered to have committed a crime, and thus be inadmissible under INA 212(a)(2)(A)(i)(I), unless tried and convicted as an adult for a felony involving violence."


Personally I think the above speaks for itself: Unless you were tried in an adult court despite being only 17 (Very rare and applies only to minors accused of particularly serious crimes) then it appears you're not inadmissible as under US immigration law you were not arrested for a "crime" but for an act of "juvenile delinquency".

I think everyone will agree your offence of vandalism at age 22 does not constitute a CIMT either.

Regarding your fraud question, I think it's clearly not fraud. You can use the link I gave you above, even print it out and bring it along to show them how you came to answer "no". That document I linked above is officially recommended by US Customs and Border Protection from their website on this page: They actually recommend you read it before answering the question on ESTA!

You'll also notice on that page, they recommend you e-mail them if you feel you answered an ESTA question wrongly. Therefore, you can answer ESTA, and if you're really worried about it, use the e-mail facility provided on the CBP website, which allows you to upload a police certificate/court records. They will then get back to you to confirm you were right to tick "no" or let you know if you need to apply for a visa. This way it's perfect as you can solve your eligibility issue before you get to America and without losing the chance to travel on the VWP as you would if you went straight to the embassy.

I hope this helps. Please do let me know how it goes, especially if you do use their e-mail facility, because I also happen to have a conviction from age 17 and so am in exactly the same position as you! Good luck.

civilservant

I dont think either of those offences are CIMTs, however it would be remiss not to mention that attempting to enter on the VWP when the PoE records will show you previously travelled on a visa may illicit further questioning as to why you were ineligible for the VWP before.

Oh and BritishExpatriate - I thought we'd got rid of you and your CIMT walls of text. No such luck

ian-mstm

I think you mean "elicit" not "illicit". They have two vastly different meanings!

Ian