Paul1984

Thought I'd post on this thread instead of starting a new one - hope that's OK.

I'm just out of the army after 6 years. My girlfriend booked a surprise trip to New York with cheap flights and I've never been so was delighted. We are going next week.

I've only found out about the waiver you need for holidays and teh questions they ask and about being arrested and criminal record. She doesn't know but I did some stupid stuff in the army before I met her and got court martialled and got 6 months in MCTC Colchester (army jail). It was tough in there but I learnt my lesson, came out a better soldier and was allowed soldier on. I know you are meant to say if you have been arrested but surely they wouldn't have evrybody's criminal record and even if they did - mine was all dealt with in the army so I doubt if they would have anything on that.

I know you are meant to spply for a visa but would that be for someone like me? I don't have time to do it now and am probably just going to go ahead and hope for the best. If anything came up - what is the worse that could happen me? My girlfriend has a sister in New York who we are meant to be staying at so even if I got sent home she would still have her holiday and I am 99% sure I would be OK.

I'm just thinking this as I'm typing so just looking to see if anybody has any advice.

Paul

meauxna

I've split your post to your own topic Paul; it's distinct and different than the other thread.

This is not a question of 'will they know if I don't tell' --- you need to re-read the questions asked to see if you qualify to use the VWP. You don't have to declare every arrest, but certain crimes.

You can't just blow this off, but the people here will try to help you figure it out.
Recommend that you do NOT travel without getting answers about this first. It will be far more embarassing to have an incident at the POE in front of your GF than for her to learn about your history at home.

Folinskyinla

Hi:

OK, you intend to lie to US Government to get into the United States. How do you know that your conviction is not in a data base shared with NATO allies? I have no idea.

You don't give any details about your conviction. So there is no way to tell if is a ground of inadmissibility or not. If it is a ground of inadmissibility under US law, you have cut your own throat. If your conviction is not a ground of inadmissibility, we then get into a fine legal issue of "materiality" -- an issue that way beyond the scope of an internet thread. [Lets put it this way, many Nazi's and Mafioso have litigated this to the Supreme Court of the US].

Do note that people here on this forum have learned not condone what is obviously illegal actions -- even advice on "can I get away with it" can get people urging you on in trouble.

BTW, several of the lawyers on this forum are amused when a UK national uses the term "surely."

Folinskyinla

Hi:

Concur. However, OP does not have just an "arrest," he also happens to have a "conviction." Convictions are more likely to show up in databases.

ian-mstm

Yes.


It's never a good idea to admit in an open forum, that you are going to commit fraud against the US government.


Since you ask, you would be sent back home on the next flight, and you would receive a lifetime ban from the US.


They may find that she is complicit in your conspiracy to defraud (whether true or not) and send her home too - and perhaps receive a similar ban. Is this something you're willing to live with? You must have a high risk/reward tolerance.

Ian

Paul1984

Sorry if I annoyed anybody. I didn't mean to. Like I said I was typing what was in my mind so it didn't come out right. I don't plan on doing anything illegal or lying. I was told that the offences wouldn't show up on my criminal record because they were handled under military law and were military offences - (going AWOL and insubordination) serious enough in the army but not on civvy street. Like I said I served my time and got back to my unit and got sent to Afghanistan and even got a promotion after that so the army saw I learnt my lesson and was a better soldier for it.

I only started worrying about it when a mate of mine told me that if you had been arrested at all you couldn't get the waiver but reading it since I think I will be OK. I just don't want to make things complicated if I don't have to.

I am calling up the army tomorrow to double check about whether I would have a criminal record or if they are just part of my army record like I think it is.

I saw taht you have to provide details before you go to the USA and my girlfriend said she did this yesterday. If there was any problem wouldn't it show up there?

I only posted here for advice not to piss anybody else and I appreciate the advice anyway.

crg

I don't believe AWOL or insubordination are CIMTs. I'll look into it and get back to you. If they are clearly not CIMT then you may actually be able to truthfully answer NO to the arrest/conviction question as worded on the ESTA and VWP entry document as the questions are quite limited in scope. A general visa application asks about any and all arrests. The ESTA and VWP do not.

meauxna

It's not 'ever been arrested', there is more to the question.


The I-94W (and ESTA) question is reprinted on http://en.wikipedia.org/wiki/Moral_turpitude:

The first question on document I-94W for those visiting the U.S. on the Visa Waiver Program asks:

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 controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

No guidance is provided to the traveler as to which offenses are included in the definition; the website of the U.S. embassy in London advises that a visa is required for anyone who has ever been arrested or convicted for any offense.[2]

An arrest that does not lead to a conviction causes a person to be inadmissible to the United States if that arrest was for an offense or crime involving moral turpitude. There are Petty Offense exceptions to this rule, even if convicted. A police caution for cannibis use would also deem a person inadmissible as this would be "a violation related to a controlled substance". There is no special standard of admissibility for the visa waiver program.




The ESTA help screens read:
https://esta.cbp.dhs.gov/esta/WebHel...ine_Help_1.htm

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?

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.

Folinskyinla

Hi:

This is not advice. These are comments of a general nature. I may be a lawyer, but I am not your lawyer.

Point one -- your questions are ones of United States law. Since the law varies so much among the fifty states, much less foreign jurisdictions -- there is a United States federal definition of "conviction" -- British law does not apply. As a general rule, a court martial conviction with a sentence fits the United States definition of "conviction."

[BTW, my military service was over 35 years ago in the US Army. Six months in the stockade? Sounds pretty stiff to me, but I digress]. But insubordination and AWOL are less than mutiny and desertion. As you note, you were allowed to go forward and sin no more.

Point two -- the question for your purposes is whether or not "insubordination" and "AWOL" are "crimes involving moral turpitude." I just popped into WestLaw and found two cases from October 2007 involving one alien [slightly different issues involved]. He had two AWOL convictions from the US Marine Corps. Let me put it this way, the US Department of Homeland Security felt strongly that he had been convicted of crimes involving moral turpitude and was therefore subject to mandatory detention without bond during the efforts to remove his from the United States.

Both the Board of Immigration Appeals and the US District court disagreed.

However, both of these cases have no precedential value whatsoever.

WestLaw disclosed nothing about "insubordination" in the immigration context.

The gentleman above had a green card. In the procedural position of a person seeking non-immigrant admission, the decision is entirely in the hands of DHS. There is no judicial or administrative review like the gentleman mentioned above had.

Feel free to make whatever decision you think is appropriate. I'm not to even come close to an idle suggestion of what to do. Again, no advice intended nor made.

Folinskyinla

Hi:

Your disclaimer is interesting. "Informed" by what, pray tell? As I mentioned in another recent thread: curious minds would like to know.

My goal here is try to make sure that accurate information is out there so people don't shoot themselves in the foot. I figure that "UPL" issues will eventually come to a head and resolve themselves in the appropriate places. However, I find your posts to be an excellent "Exhibit A" in the dangers of UPL -- particularly in light of your responses to my gentle corrections to the bad info you were putting out.

I'm very well aware of what I don't know. I am very well aware of the fact that no one can know everything about this field -- it drives judges nuts all the time. This "informs" my postings here.

crg

Hi,

Are you stalking me, counselor? What was wrong about offering to research it to see if I can find anything about the CIMT issue? Did I say "Just get on the plane, you'll be fine."?

A "gentle correction" would be accompanied by an explanation and maybe a precedent decision I could read. I'm not against considering other people's points of view. If they can be clearly supported, I will stand corrected and hopefully learn something from the interaction. Instead, you toss out vague comments.

If you'd like to snipe, feel free to do so via PM. I may or may not respond to them.

Folinskyinla

Hi:

Be nice. My goal is to help people. I will admit to being somewhat enamored with dialectic dialogue.

I think OP has been dealing with the dialogue quite well. When I was in the US Army, there were often things that were "by the numbers" and other things you had to make up your own mind on.

I want OP to have valid tools to figure out things. He has been trained that "befehl ist befehl" is an invalid concept, as appealing as that might be.

Folinskyinla

Hi Paul:

A point that slipped my mind until now -- In the US, veterans have a preference in applying for Federal Jobs. In fact, many 20-year retirees become "double dippers" by working a Federal Civilian job for 20 years, then retire at age 58 with TWO pensions. So, do note that the airport inspector may have been in the US Marines in the 1991 Gulf War and will consider AWOL a "biggie."

If it is kosher on civilian clothes, wear something that shows you are veteran of Afghanistan when you enter the United States.

crg

Matter of S , 5 I. & N. Dec. 425 (BIA 1953) indicates that failure to report for induction was found not a CIMT. Matter of S B , 4 I. & N. Dec. 682 (BIA 1952) indicates that desertion was found not to be a CIMT. I can't find any cases relating to AWOL. Even though desertion appears to be a much worse charge than AWOL, a determination cannot be made with 100% certainty.

Even though it's not clear either way, receiving a visa after disclosing all of the facts would put you in a better position if there are concerns at the border. At least someone in the US government would have looked at it before you travel.

Of course, you're the only one who can make the decision on how to proceed.

Folinskyinla

Hi:

Not too shabby. However, I wonder how you were able to find S-B-, but not find the cases I referenced about AWOL. The 2007 BIA case makes a direct citation of S-B-. The description of conviction in S-B- shows that there were three different flavors of desertion one of which did not involve moral turpitude and that the Board's ruling was limited to the facts of that case. We don't know the facts of Paul's AWOL or the insubordination. S-B- should not be extended beyond its facts.

Also, a comment on style -- your statement about desertion being "much worse" that AWOL is written in a way as it was extracted from S-B-. I would suggest that you make a statement that it is your own opinion -- that might clarify things.