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-   -   HELP! Travelling on an ESTA with a criminal record (https://britishexpats.com/forum/us-immigration-citizenship-visas-34/help-travelling-esta-criminal-record-724998/)

Jonsie25 Jul 15th 2011 12:39 pm

HELP! Travelling on an ESTA with a criminal record
 
I have been travelling into the US over the last year or so on the WVP not realizing that I should not have been!

I have inadvertantly been travelling on the ESTA form. This was mainly due to the wording and due to my record being such a long time ago. It was 1991, I was 16 and convicted of theft and obtaining property by deception. I got the maximum sentence of 36 hours at a youth attention centre.

I realized my mistake when i applied for an ETSA form for my parents and seeing the video clip on the embassies website, have you ever been cautioned etc.

I applied for a police certifcate straight away and have a letter from the court regarding the case.

I am now going to apply for the DS-190 form and want to go to the embassy.
I have been travelling over for work and intend to at the end of August.

My concern is, will they think I have been doing this on purpose and what the outcome will be.

Extremely worried as to how this will effect my job, however as i have realized I want to go down the visa route.

Thanks in advance for your help :(

DavidLemon Jul 15th 2011 5:35 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by Jonsie25 (Post 9497144)
I have been travelling into the US over the last year or so on the WVP not realizing that I should not have been!

I have inadvertantly been travelling on the ESTA form. This was mainly due to the wording and due to my record being such a long time ago.

When you fill in the ESTA it asks about past convictions, and to complete this process you have to tick all the boxes. The only way that you could have been approved is if you lied on the application and said no. Its simply not possible to have missed the question as the system would not let you go forward.

All said and done, the only thing that may not go in your favour is the lie on the original application. However no one here can tell you if you will be approved, just simply that you may need to consult a lawyer if you get denied.

They allways say honesty is the best policy, so if you go for the interview just show them what you have and explain what happened in the past. if they deny you, you may still be eligible for a waiver and they will tell you this at the time you are denied.

edit** Actually my bad, sometimes when filling in the form and saying yes i hear it has been known to have been approved. However it sounds in this case that you did not say yes as you said that it was mainly due to wording. This means that what i said earlier still stands true, that on the application you ticked the wrong box.

materialcontroller Jul 15th 2011 6:23 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by Jonsie25 (Post 9497144)
I have been travelling into the US over the last year or so on the WVP not realizing that I should not have been!

I have inadvertantly been travelling on the ESTA form. This was mainly due to the wording and due to my record being such a long time ago. It was 1991, I was 16 and convicted of theft and obtaining property by deception. I got the maximum sentence of 36 hours at a youth attention centre.

I realized my mistake when i applied for an ETSA form for my parents and seeing the video clip on the embassies website, have you ever been cautioned etc.

I applied for a police certifcate straight away and have a letter from the court regarding the case.

I am now going to apply for the DS-190 form and want to go to the embassy.
I have been travelling over for work and intend to at the end of August.

My concern is, will they think I have been doing this on purpose and what the outcome will be.

Extremely worried as to how this will effect my job, however as i have realized I want to go down the visa route.

Thanks in advance for your help :(

The previous poster gave you some good advice. You might need a lawyer to help you explain away your previous difficulty when completing the ESTA.

Re. bold - Are you allowed to work while visiting on the VWP?

Re. red - I think the form you might need is DS-160: https://ceac.state.gov/genniv/

Good luck getting it all sorted :fingerscrossed:

md95065 Jul 15th 2011 6:58 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by DavidLemon (Post 9497655)
When you fill in the ESTA it asks about past convictions, and to complete this process you have to tick all the boxes. The only way that you could have been approved is if you lied on the application and said no.

Lots of assumptions here ...

The ESTA application asks a very specific question about arrests and convictions - it would be a good idea for the OP to go back and read that question very carefully before applying for a visa - it isn't at all clear to me whether a juvenile conviction for "theft and obtaining property by deception" would require a "yes" answer to that question - if it isn't clear to the OP either then they would be well advised to consult an experienced US immigration attorney before applying for a visa which may be unnecessary.

Also, don't assume that the OP lied just because they may have answered a question incorrectly.

DavidLemon Jul 15th 2011 7:04 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by md95065 (Post 9497791)

Also, don't assume that the OP lied just because they may have answered a question incorrectly.

Fair point and i apologise

However the wording on the esta application does clearly state

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 have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

The very first part of this question should have struck accord, and even if not aware as to the meaning of moral turpitude, then Google or Yahoo or the police could have clarified the term. Just clicking no because the wording is not clear does still constitute that the answer is a lie, even if it is through ignorance. Im not saying he is a bad person and dishonest, but regardless of how it happens a lie is still a lie.

It then goes on to say at the very end, which you also have to tick

* Certification: I, the applicant, hereby certify that I have read, or have had read to me, all the questions and statements on this application and understand all the questions and statements on this application. The answers and information furnished in this application are true and correct to the best of my knowledge and belief.

Taking this into account you can not use the excuse that the wording was misleading or you did not understand the question at hand. If it was not clear to you, seek clarification before continuing on and signing an official declaration.

Also there is no part in this statement that says since over the age of 18, it just asks if you have ever been. It is a strictly yes or no answer, and in this case the answer is clearly yes as he was arrested and received the maximum sentence for said offense.



But you are right maybe i should choose words more carefully.

materialcontroller Jul 15th 2011 8:43 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by DavidLemon (Post 9497802)
Fair point and i apologise

However the wording on the esta application does clearly state

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 have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

The very first part of this question should have struck accord, and even if not aware as to the meaning of moral turpitude, then Google or Yahoo or the police could have clarified the term. Just clicking no because the wording is not clear does still constitute that the answer is a lie, even if it is through ignorance. Im not saying he is a bad person and dishonest, but regardless of how it happens a lie is still a lie.

It then goes on to say at the very end, which you also have to tick

* Certification: I, the applicant, hereby certify that I have read, or have had read to me, all the questions and statements on this application and understand all the questions and statements on this application. The answers and information furnished in this application are true and correct to the best of my knowledge and belief.

Taking this into account you can not use the excuse that the wording was misleading or you did not understand the question at hand. If it was not clear to you, seek clarification before continuing on and signing an official declaration.

Also there is no part in this statement that says since over the age of 18, it just asks if you have ever been. It is a strictly yes or no answer, and in this case the answer is clearly yes as he was arrested and received the maximum sentence for said offense.



But you are right maybe i should choose words more carefully.

Well you seem to have chosen your words with a great deal of care in that answer. I just wanted to say that I reckon it's a first class explanation which goes a long way towards clarifying and demystifying the ESTA question. :thumbup:

md95065 Jul 15th 2011 8:59 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by DavidLemon (Post 9497802)
in this case the answer is clearly yes as he was arrested and received the maximum sentence for said offense

Is it?

materialcontroller Jul 15th 2011 10:10 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by md95065 (Post 9498048)
Is it?

The OP himself mentions that he was "convicted of theft and obtaining property by deception. I got the maximum sentence of 36 hours at a youth attention centre."

md95065 Jul 15th 2011 10:48 pm

Re: HELP! Travelling on an ESTA with a criminal record
 
Yes, but is it a "crime involving moral turpitude"?

I am not a lawyer and I do not have a definite answer to that question.

materialcontroller Jul 15th 2011 10:55 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by md95065 (Post 9498231)
Yes, but is it a "crime involving moral turpitude"?

I am not a lawyer and I do not have a definite answer to that question.

There doesn't seem to be a definitive answer to what constitutes moral turpitude anywhere that I've seen. But doesn't the ESTA guidance steer people towards answering "yes" if they are unsure - presumably so that the issues can be determined by consular official at a visa interview?

crg Jul 17th 2011 10:39 am

Re: HELP! Travelling on an ESTA with a criminal record
 
I'd say it's firmly within the category of CIMT.

I just shake my head when people rationalize how they can ignore their past and answer these questions incorrectly because of how much time has passed.

If he went on vacation to Florida at 14 years old, and then were asked at the age of 65 if he had ever vacationed in Florida before, he would readily answer that he had indeed been to Florida. Of course if you ask the same person for some potentially derogatory bit of information such as ever being arrested he would mull it over and say no because it was soooooo long ago.

People do the same thing with visa denials etc when they switch from some other nationality to being British. Have you ever been denied a visa? Hmmmmm..... not since I became British two weeks ago I haven't..... that must be what they mean....... I'll just insert extra words into the question using my imagination so I can say NO to that one..... yeh..... that's the ticket......

What a bunch of rubbish.

md95065 Jul 17th 2011 4:10 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by crg (Post 9500494)
I just shake my head when people rationalize how they can ignore their past and answer these questions incorrectly because of how much time has passed.

In fairness to the OP - they were not attempting to "rationalize" anything and I was merely suggesting that the OP should consider consulting an attorney to make sure whether they really did need to apply for a visa or not. because it seemed to me that they were getting a lot of very absolute advice based only on the limited facts provided in their post.

crg Jul 17th 2011 4:33 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by md95065 (Post 9500962)
In fairness to the OP - they were not attempting to "rationalize" anything and I was merely suggesting that the OP should consider consulting an attorney to make sure whether they really did need to apply for a visa or not. because it seemed to me that they were getting a lot of very absolute advice based only on the limited facts provided in their post.

I didn't think he was rationalizing now, but his post of "This was mainly due to the wording and due to my record being such a long time ago." brought out my rant about rationalization in general. He admittedly rationalized in the past.

I essentially put my $.02 in on the CIMT issue and then howled at the moon per se about how people rationalize that the words "ever been" mean something completely different to them in their head.

Aside from weighing in with an opinion as to if it was a CIMT or not, my comments weren't meant to be a rebuttal of anything you posted. I absolutely agree with what you said about how an incorrect response does not automatically mean that the person lied.

If I were to bet on the outcome, I'd wager that the offense was a CIMT. A YES response on the ESTA is required. The juvenile conviction would not be considered a conviction for immigration purposes, make the person inadmissible or need a waiver to overcome. Any prior misrepresentation made would not matter because it is not material as the person would not be admissible on the true facts of the case. They could be granted a visa without the matter being held against them.

Jonsie25 Jul 17th 2011 8:58 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by crg (Post 9500991)
I didn't think he was rationalizing now, but his post of "This was mainly due to the wording and due to my record being such a long time ago." brought out my rant about rationalization in general. He admittedly rationalized in the past.

I essentially put my $.02 in on the CIMT issue and then howled at the moon per se about how people rationalize that the words "ever been" mean something completely different to them in their head.

Aside from weighing in with an opinion as to if it was a CIMT or not, my comments weren't meant to be a rebuttal of anything you posted. I absolutely agree with what you said about how an incorrect response does not automatically mean that the person lied.

If I were to bet on the outcome, I'd wager that the offense was a CIMT. A YES response on the ESTA is required. The juvenile conviction would not be considered a conviction for immigration purposes, make the person inadmissible or need a waiver to overcome. Any prior misrepresentation made would not matter because it is not material as the person would not be admissible on the true facts of the case. They could be granted a visa without the matter being held against them.

I did think your response was harsh, however justified. I realize my mistake hence the reason why I am trying to put right. Just worried about the consequences of doing so as a ban etc could mean i lose my job.

I will be speaking to a a US immirgation lawyer tomorrow hopefully as i want to complete the form and go to the embassy asap.

I am worried about the DS form as it asks if i ever have been denied, i havent but did not complete the form correctly.

I hope they do not deny me and I have to apply for a visa as I will need to return before the 90 day process.

Thanks again for your advice and please send more if you think it will help.

crg Jul 17th 2011 11:39 pm

Re: HELP! Travelling on an ESTA with a criminal record
 

Originally Posted by Jonsie25 (Post 9501401)
I did think your response was harsh, however justified. I realize my mistake hence the reason why I am trying to put right. Just worried about the consequences of doing so as a ban etc could mean i lose my job.

I will be speaking to a a US immirgation lawyer tomorrow hopefully as i want to complete the form and go to the embassy asap.

I am worried about the DS form as it asks if i ever have been denied, i havent but did not complete the form correctly.

I hope they do not deny me and I have to apply for a visa as I will need to return before the 90 day process.

Thanks again for your advice and please send more if you think it will help.

I'd bet money your police problem will not require a waiver. Hopefully you can get a visa and put this worrying behind you. Please be aware that my rationalization rant wasn't directed to you in particular, but was a culmination of other threads and posters.

Good luck.


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