cc27

I travelled into the US two months ago on vacation on an ESTA believing that it had been completed it correctly. The border control officer however told me that I was incorrect. I also spoke to a second officer who re-confirmed the first officer’s comments.

To paraphrase the history, I was incorrectly arrested and spent a night at the police station on a previous trip to the US and nothing more came of it and the court dismissed without myself even attending. The crime I was arrested for did not fall under a crime of moral turpitude.

Back to my recent trip, when arriving at the airport and presenting my passport I was asked to wait to one side and taken to a secondary room. This was no surprise as this had happened on another trip.

The officer granted me access to the US but asked me how I answered ESTA question 2 i.e. Have you ever been arrested or convicted for an offense or crime involving moral turpitude……

I informed him that I answered the question ‘no’ as the crime was not classified as a CIMT.

He then advised, as did the second officer that despite the fact the crime was not a CIMT, that this is a 2 part question which should read, 1) have you ever been arrested 2) have you ever been convicted of a CIMT.

The answer should therefore be ‘yes’ and he subsequently advised that he had cancelled my ESTA. He allowed me access to the US but asked that I reapply when I go home before returning to the US.

I didn’t want to argue with them at the time as they had allowed me into the country.

Am I right in thinking they were wrong? If this is indeed a 2 part question it appears to place more importance on the arrest rather than the conviction as it considers an arrest for anything but only a conviction for a CIMT. It also doesn’t appear logical as you couldn’t have a conviction without an arrest.

I will be traveling to the same small airport in a few month time and I’m worried that I’m going to come up against the same officers. I obviously need to get this right before my return.

1) Am I right in thinking they were wrong?
2) I’ve checked the ESTA website and my reference number is still approved? Is it therefore cancelled? Do I need to re-apply or even get a VISA from the embassy?
3) If I re-apply for a new ESTA and answer ‘yes’ to the CIMT question is this an automatic rejection?

This is all a real mess now leaving me really concerned and stressed.

Thanks all in advance for your help and assistance.

ian-mstm

Yes... because there is no comma after the word "arrested".

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I will be traveling to the same small airport...

I suggest you enter at a larger airport - but, regardless, if the notation is already on your record, then you will probably find yourself subject to the same questions. If that happens, ask to speak to a supervisor - and ask the supervisor to amend the record to correct it.

Quote:

Is it therefore cancelled? Do I need to re-apply or even get a VISA from the embassy?

I doubt it; and probably not.

Quote:

If I re-apply for a new ESTA and answer ‘yes’ to the CIMT question is this an automatic rejection?

Not automatic, no... but highly likely, yes.

Ian

S Folinsky

The language strikes me as a tad ambiguous. Run into similar issues all the time.

scrubbedexpat099

If it was meant to say what they thought it said then a very high percentage of VWP users would have problems.

Why had you been to secondary before?

crg

I'm firmly in the camp that believes they are reading it wrong. Just be aware that there is no appeal of their decision if they decide otherwise. Getting arrested as a tourist is frowned upon and you should expect delays and potential problems on future trips. A visa may smooth that out. Did you check the ESTA validity online lately?

Also be aware that if you were actually convicted of the non-CIMT/non-drug offense and did any time in jail at all, you could be removable from the US as a status violator and could be barred for 10 years on the spot without even seeing an immigration judge. Even if not removed, that could be considered a violation of VWP status and may bar future use of the VWP.

Tourists have been removed in the past for something as petty as doing time for disorderly conduct. Oddly enough, a student would not be removable for the same thing as long as they were able to stay in good standing with the school.

cc27

Crg, I've checked my Esta number today on the application system and it still says approved. I didn't do any time in jail at all after the arrest.

Boiler, I had been to secondary before for the same arrest on a trip between the latest visit with these 2 officers and the arrest. This was easily explained to a different office at a different airport and I had no problem with entry on that occasion. The only difference that time was I was using the same Esta as I had during the arrest and the latest visit was using a newly approved Esta.

ian-mstm

This is one reason I suggest the guy enter at a large international airport. They're more likely to interpret things properly.

Ian

crg

They likely know the law better and may also be busy with people with serious problems like drugs and fake passports and not go nuts when they see someone with a non-conviction for a non-CIMT. Of course, some of them may go nuts over this too. No guarantees at the border.

cc27

I'm just thinking about it, how could the officer grant me access to the US and cancel my Esta at the same time? Would I not be in the country without any Esta or visa?

I was also wondering, if I go for the safe route and book an appointment in London with the embassy how long would my visa last? Is it the same 2 years as an Esta or longer?

Also, How soon am I likely to get an appointment and how quick is the turnaround of the applications presently?

GeoffM

Reminds me of the I94W (?) form you used to fill in at the border. My visit number N, I write country of origin as United Kingdom. Officer crosses it out and writes "Great Britain". My visit N+1, I write Great Britain. Officer crosses it out and writes United Kingdom.

ian-mstm

ESTA is simply permission to travel to the US so that you can subsequently ask permission to enter on the Visa Waiver Program (VWP).


If you are allowed to enter the US then you are, in fact, in the US without a visa.


It's not the safe route. It's the decidedly stupid route. I'll leave it to others to explain why.

Ian

RICH

I have heard that CBP/ immigration officials are allowed to lie to you with impunity, so it follows they can be wrong with impunity.

They don't need a reason to pull you into secondary, but if they find one, why not?

sir_eccles

Was anything written or stamped in your passport?

scrubbedexpat099

You are entitled to use the VWP

You apply for a B and one likely outcome is that you are refused as you can use the VWP

But now you have to update ESTA with the refused visa which often it seems results in a refusal for 6 months or so.

So you could wait or reapply for a B this time with at least a reason for needing a B, which may or may not get you a B.

So lets say you do not have the B you still have the same issue in getting in with a bit more for them to look at when they scan your passport.

Steve_

It sounds as though they paroled you in, look at the notation on your I-94.

My advice would be to apply for a B-1/2 visa and tell the CO the story as to why you are applying.

This whole "have you been arrested" thing used to come up quite often, I complained about it once and it's been awhile since I've been asked, I think they've figured out it's not a fair question. Standards of arrest vary from country to country.