wellsFar

Hi,

I've read the few posts on here about this topic but would be most interested in what people think of the particulars of my case.

Basically I think my company ( I am UK resident based in UK) may send me on a course to the states in 3 or 4 weeks time.

Last year I received a formal caution (written caution) for having a stun gun in my possession... yeh stupid... but I didn't know they were illegal, and just bought it off ebay for a tenner and though no more about it. Anyway, turned out they are illegal (have been since 95 apparently), someone saw it in my house and rather than tell me they were illegal called the police! , but because of the circumstances (just had it in a drawer, never dream of using it, etc) I got off with a caution.

Now, as far as I can tell from the us embassy site this means that I should schedule an interview with them, apply for a visa and a waiver of the permanent ineligibility.

Clearly no time for that.

However it is certainly not a crime of moral turpitude which I understand is a question on the I-94W. I have no criminal record. And the thing I was cautioned for was bought in good faith from a usa company (where these things are legal for self protection).

So is it worth me taking my chances, going as normal, declaring it on the I-94W and bringing my formal caution sheet with me to show immigration on arrival ?

Or am I likely to be bounced back onto a plane home ?

Obviously there is not going to be a definate answer here. I tried calling the us embassy, but understandably they can't provide definate answers to questions such as this.

stu

fatbrit

On the back of the VWP, the question it asks is:

B. Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

Do believe that you can answer "No" to this, although the question is a very tricky and confusing one in many, many aspects.

However, if at the port of entry they ask you verbally whether, for example, you've ever been convicted of any crime, you must tell the truth. Failure to do this can have horrible consequences. Bring documentation with you just in case, but don't proffer it unless specifically asked.

Lansbury

On Wed, 01 Mar 2006 19:35:01 +0000, powerlord <member48763@british_expats.com>
wrote:

    >Now, as far as I can tell from the us embassy site this means that I
    >should schedule an interview with them, apply for a visa and a waiver of
    >the permanent ineligibility.
    >Clearly no time for that.
    >However it is certainly not a crime of moral turpitude which I
    >understand is a question on the I-94W. I have no criminal record. And
    >the thing I was cautioned for was bought in good faith from a usa
    >company (where these things are legal for self protection).

A stun gun is a prohibited weapon under the Section 5 Firearms Act 1968, I
think I'm right in saying that if the law hasn't changed.

http://www.parliament.the-stationery...t/60109w97.htm

If you consider committing such an offence not an act of moral turpitude I
doubt very much the US authorities would agree with you. The item maybe legal
over there but it isn't here and you committed the offence.

How do you know you have no criminal record. Cautions are listed on the Police
National Computer in the same way court convictions are.

You refer to a formal caution sheet so I would guess you do have a criminal
record. Were you arrested, taken to a police station, and then offered a
formal caution as a way of closing the matter, or was it dealt with in some
other way.

    >So is it worth me taking my chances, going as normal, declaring it on
    >the I-94W and bringing my formal caution sheet with me to show
    >immigration on arrival ?
    >Or am I likely to be bounced back onto a plane home ?

Depends what is on the formal caution sheet. Does it mention the Act and
Section of the offence which you were cautioned for. If the words Firearms Act
appears on it I would bet a weeks wages they'll bounce you back.

I think you need to undertake a data protection enquiry with you local police
force to see if you do, or do not, have an entry against you on the PNC. If
you don't no problems, if you do you have to hope the US authorities do not
find out about it.

If you have no criminal record but were in fact arrested for the offence you
do still technically need a visa to enter the USA.
--
Lansbury
www.uk-air.net
FAQs for the alt.travel.uk.air newsgroup

fatbrit

Lansbury wrote:
If you consider committing such an offence not an act of moral turpitude I
doubt very much the US authorities would agree with you. The item maybe legal over there but it isn't here and you committed the offence.

Would be interested in your reasoning as to why you believe the offence mentioned by the OP is a CIMT.

London7

Hi
A caution in the Uk is NOT a conviction, however it will remian on the PNC for 3 years
Hope that helps!

crg

A single stun gun offense is not a CIMT and would not make someone inadmissible. Even possession of a machine gun, rocket launcher or ICBM wouldn't fall under a ground of inadmissibility.

The likelyhood of the US finding out about an offense should not enter into the decision.

"If you have no criminal record but were in fact arrested for the offence you
do still technically need a visa to enter the USA."

Not just any arrest would make someone inadmissible to the US or require a visa. Only certain offenses would make someone inadmissible.

You can send me the weeks pay through Paypal

Lansbury

On Fri, 03 Mar 2006 00:22:05 +0000, crg14624 <member20421@british_expats.com>
wrote:

    >Not just any arrest would make someone inadmissible to the US or require
    >a visa. Only certain offenses would make someone inadmissible.
    >You can send me the weeks pay through Paypal :)

My comment was if the words Firearms Act appear on the "formal caution sheet"
which he proposed to show to the immigration officer in the States they would
bounce him back. The people in the USCIS at the US Embassy in London, who I
deal with through work quite regularly, assured me that would be the case
before I posted my reply.

So I'll keep the money :-)
--
Lansbury
www.uk-air.net
FAQs for the alt.travel.uk.air newsgroup

Lansbury

On Thu, 02 Mar 2006 14:22:06 +0000, fatbrit <member24289@british_expats.com>
wrote:

    >Would be interested in your reasoning as to why you believe the offence
    >mentioned by the OP is a CIMT.

Note my comments did presuppose it had been dealt with under Sec 5 Firearms
Act 1968, and I got the impression this had happened before 01/01/2006.

If that was the case it was under Sec 24 Police and Criminal Evidence Act an
arrestable offence, ie one which on conviction could be punishably by a term
of imprisonment of 5 years or more.

I would consider any offence of that seriousness is a CIMT.

Also I have personal knowledge of a case where someone, traveling under the
visa waver scheme were bounced back because they had been arrested for
"Causing a breach of the peace", which in the UK was a very minor
non-recordable offence for which you can only be bound over. If they accepted
that as CIMT just about anything is.

That is why I believe the offence mention by the OP is a CIMT.

It would be interesting to know from the OP just how it was dealt with, I did
pose that question but it hasn't been answered as yet.
--
Lansbury
www.uk-air.net
FAQs for the alt.travel.uk.air newsgroup

crg

"A firearms offense may also be a crime involving moral turpitude (CIMT). The following crimes have been found to be CIMTs: (1) firearm use, United States v. Brown, 127 F.Supp.2d 392, 408-409 (W.D.N.Y. 2001); and (2) carrying a concealed weapon with intent to use it, Matter of S., 8 I&N Dec. 344 (BIA 1959). However, possession of a sawed off shotgun or concealed weapon has been found not to be a CIMT. Matter of Hernandez-Casillas, 20 I&N Dec. 262, 278 (BIA 1990); Matter of Granados, 16 I&N Dec. 726 (BIA 1979)."

".” CIMT is defined only by case law. Courts have generally described it as a crime that is “inherently base, vile or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general…and as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867 (BIA 1994)."

The possible sentence does not matter when considering if something is a CIMT. There are plenty of serious criminal offenses that are not CIMT and have no immigration consequences.

Shoplifting two pieces of candy from two different stores at 18 years of age will make someone inadmissible for life. However, getting drunk and accidentally killing 10 people in your speeding SUV is rarely a CIMT and wouldn't make someone inadmissible.

The courts have found that simple weapon possession is not “inherently base, vile or depraved and contrary to the accepted rules of morality...."

I'll take that paycheck now


As for the breach of peace person, technically they can bounce a visa waiver applicant back if there is any confusion. Breach of peace isn't a CIMT either. Maybe they lied about any arrests, and lost their credibility and were unable to overcome the presumption that they were an immigrant. If the person with the stun gun caution had records available and was honest they may have less of a problem. Having a visa is always better.

Lansbury

On Fri, 03 Mar 2006 00:22:05 +0000, crg14624 <member20421@british_expats.com>
wrote:

    >Not just any arrest would make someone inadmissible to the US or require
    >a visa. Only certain offenses would make someone inadmissible.

This is what the US Embassy web site says

Travelers who have been arrested, even if the arrest did not result in a
criminal conviction, and those with criminal records, (the Rehabilitation of
Offenders Act does not apply to U.S. visa law), are not eligible to travel
visa free under the Visa Waiver Program. They are required to apply for visas.
If they attempt to travel without a visa, they may be refused entry into the
United States.

That makes no distinction on what the arrest was for.
--
Lansbury
www.uk-air.net
FAQs for the alt.travel.uk.air newsgroup

Lansbury

On Fri, 03 Mar 2006 11:43:14 +0000, crg14624 <member20421@british_expats.com>
wrote:

    >I'll take that paycheck now :)

If the rest of what you post is as inaccurate of your understanding of what I
posted, I'll take it with a pinch of salt. :-)

If they gave a formal caution form listing an offence under the Firearm Act on
arrival in the US, my information from *USCIS* is they would be refused entry
under the VWP. Anything else is immaterial because they do not have a right of
appeal if refused and get sent more or less straight back. So even if it isn't
a CIMT, if the immigration officer thinks it is and refuses entry, at that
stage you are up the creek without a paddle.

Unless of course you are saying the USCIS in London have no knowledge on the
subject.

    >As for the breach of peace person, technically they can bounce a visa
    >waiver applicant back if there is any confusion. Breach of peace isn't
    >a CIMT either. Maybe they lied about any arrests, and lost their
    >credibility and were unable to overcome the presumption that they were
    >an immigrant.

No they didn't lie. The decision to refuse entry was taken while they were
still on the aircraft in transit to the USA on information supplied by myself
to US Immigration at O'Hare. So I know exactly on what grounds they were
refused and the reasons why it was done.
--
Lansbury
www.uk-air.net
FAQs for the alt.travel.uk.air newsgroup

fatbrit

As they are holding all the cards, you need to come from the American side on this rather than the British one.

First of all, the US authorities really don't care whether the punishment for the offence in the UK is a slapped wrist or to be hung, drawn and quartered on Tower Bridge. Rather, all that interests them is how a US court would view the offence. (They take a rather similar attitude to foreign policy in case you hadn’t observed it!)

Secondly, CIMT has absolutely nothing to do with the seriousness of the offence. You need to remove the link you’ve formed erroneously in your mind that CIMT is equated with the seriousness of the crime. crg14624 gave an excellent example.

Finally on your points to me, I think everybody has read or knows somebody who has been turned away entering the US. The only people who are a sure bet for entry are US citizens, and all others take the chance of refusal every time they pass through. Using a VWP gives you the least right of review. IMO, you can mitigate against this calamity by being well prepared and understanding where your opponent is coming from.

On your later citation of the US Embassy web site, this is further evidence that you are simply unaccustomed to the way America works. They are using a simple technique beloved of all bureaucrats over here (and fast catching on in the corporate world) of practicing CYA. On the immigration front, there are many, many agencies working for their own empire: DHS, USCIS, State Department, DOJ, CBP, ICE, etcetera. And, believe it or not, they all work together and against each other at the same time! The US Embassy in London is giving you the safe version on their web site. They do not and cannot guarantee your entry to the US. The person who makes the final decision works for CBP, and it is this person you have to convince at the border when you arrive on a VWP.

If I were the OP, I would tick “no” to the CIMT question since that is plainly the answer. I would come through with documentation of the crime from the UK authorities including evidence why I did not believe it was a CIMT (e.g. a print out of http://foia.state.gov/masterdocs/09fam/0940021aN.pdf). I would not submit it unless specifically questioned about it. I would never lie to a US official. Nobody can guarantee that he will gain entry to the US for his course, but by following the above the worse that can happen is that he will be refused entry and will need to apply for a visa should he wish to visit the US again.

wellsFar

Hi.

Thanks for all the responses.

In answer to the caution question: yes, I was arrested and later after review by the CPS allowed to go back to the station and be given a formal caution.

I was told this was not a conviction. It is not a criminal record either. i.e. I can answer no to any question asking 'do you have a criminal record'.

This is backed up by this website I found:

http://www.lawontheweb.co.uk/rehabact.htm

It was the firearms act I think they used. However, I re-iterate, stun guns were apparently not covered by this act until 1997. Stun gun possession was not illegal until then (not that it matters particularily I suppose)

As for what it says on the caution.

under offence details it says:

"Without the authority of the secretary of state had possession of a weapon designed or adapted for the discharge of any noxious liquid, gas or other thing"

under curcumstance of the offence:

"Found in possession of 2 electronic stun guns. Subject particularly co-operative, locating and handing items to the officers. Offence fully admitted."

The firearms act is not mentioned anywhere, but was on the original charge sheet I think.

fatbrit

The question on the VWP does not ask whether you have a "criminal record"!

If you're unlucky, they are more likely to ask you questions at the POE such as whether you have ever been arrested/charged with a crime/committed a crime, etc. Here, and only if they ask, I would venture that you will probably need to answer in the affirmative and then explain and back up with documentation.

fatbrit

You're quoting UK law for entry into the US. There is no "Rehabilitation of Offenders Act" here! And BTW, for US immigration law, your offence "exists" forever.