Guitarmanmusic

Hello everyone,

I wanted to clarify a couple of things and understand whether the decision i have made is accurate or not. I'll be travelling to the US in August for 3 weeks and making a trip with a friend of mine who lives in ATL, GA, visiting a few different nearby states such as Florida, South Carolina and Tennessee.

This is the bit i'm confused about because there is so much conflicting information, when i was 16 my mother purchased a replica firearm from a German website as a gift (I was a big James Bond fan). Unknown to her this particular gun was illegal in the UK. I had possession of it for 8-9 months within my private property. One day we had a call at the door from the police who arrested both me and my mother, they had been tracking the website it was purchased from. They arrested me for possessing it and my mum for buying it. Finger prints, DNA and photos were taken and i was given a "Reprimand" and my mother a "Caution". This was 7 years ago and i have never committed a crime of any kind since. And unbeknown to me i didn't think i was committing one back then.

Any way, i have applied for ESTA and ticked "No" on the crime of moral turpitude question as from hours of research I understand that "Firearms violations" does not fall into this category. My ESTA has been approved.

I still have fears as i believe i have answered the question honestly and accurately based on all the information provided including the clause that if the crime was committed as a minor it doesn't deem you ineligible.

Anyway, in light of the new system in place at border control with the "Multimodal biometrics" and the UK now sharing immigration data. Should i be reconsidering my decision and head to the Embassy to apply for a tourist visa?

I guess the conflicting information between ESTA and the US Embassys website is what confuses me and many others i'm sure.

Now i know the ins and outs as i have been reading thoroughly. I'm looking for an honest opinion on what you think of my situation and what you would do in my situation.

Thank you all!

ian-mstm

That being the case, I don't see that you have an issue.


No to both! Don't reconsider your decision; and don't apply for a tourist visa.


The website is not the law... and the law seems to be on your side. Enjoy your trip!

Ian

BritishExpatriate

In my opinion, you're completely eligible to travel on the VWP and here's why:

First of all, I agree with Ian in that the law is not what's written on the Embassy website and the website simply tells you that you run the risk of being refused entry if you don't choose to follow their advice.

Secondly, as you've researched this a lot, you'll be aware there's an exception for a single offence involving moral turpitude committed under the age of 18. Now many people say that you should answer the question straight as the question on ESTA itself doesn't ask about things like the age you were at when the offence occured. This is complete rubbish for three reasons:
1) Because the guidance on the ESTA form right next to that question tells you to consider your answer in light of the Immigration and Nationality Act (IMA), (which contains the exception for those under 18 at time of offence).

https://esta.cbp.dhs.gov/esta/WebHel...elp_1.htm#APA2

2) Because that would be illogical: They want to stop people who are ineligible for a visa from using the VWP, which makes sense- not people who are eligible for a visa- that's a waste of their time issuing the visa. That's the whole point of the visa waiver program. If you're otherwise eligible for a visa, if you come from a VWP country, you don't need a visa. Therefore if the IMA states you're not ineligible for a visa because you fall under the exception for a single CIMT committed under the age of 18 then you don't need to apply for a visa- use the VWP, that's what it's there for!
3) Have you seen the length of that question on ESTA regarding criminal convictions! It's long enough as it is: They couldn't possibly include more in that sentence to cover the age at time of offence, ect. That's why the guidance is there to tell you that age at time of offence is material to the question.

Now, you're probably feeling quite happy by now as I've just shown you why you're covered by the exception for offences committed under 18 in the IMA and that you were therefore correct in ticking "no" on ESTA.
Here's where it gets even better!...

Under US law and for the purpose of the Immigration and Nationality Act, regardless of whether of not the offence you were given a reprimand for is normally considered a CIMT, it is not a CIMT for the purposes of the IMA because of the age you were at when it occured and the fact you were "tried" as a child and not as an adult.
In other words, under US law, you were not even arrested for a crime, you were arrested for juvenile delinquency. Of course, if you have never been arrested for a crime, it follows you can't possibly have been arrested or convicted of a CIMT!

See page 23 here for more info on this: http://www.state.gov/documents/organization/86942.pdf

And in case the CBP (immigration) officer when you get off the plane asks you, you can print off the relevant pages from the above link. Then, if he/she asks what this document has to do with your ESTA form, you can also print off this link, (https://help.cbp.gov/app/answers/det...used/related/1), which is from an ESTA guidance help page that tells you to consult the document, page 23 of which, I have referred you to.

Even irrespective of your age at time of offence, tbh I don't even think what you were arrest for is a CIMT even if committed by an adult.

IN SHORT:
- Interpret the ESTA question in light of the IMA, as the ESTA website tells you to!
- You'll see that the IMA allows you an exception for a single CIMT if committed under the age of 18.
-However, you'll also see from the links I've provided that your offence isn't even a CIMT, instead it was an act of 'juvenile delinquency' for the purpose of US law, because you were under 18 and ween't tried as an adult. Therefore you don't even need to rely on the above mentioned exception!
-As you've pointed out, the offence, even if you had been an adult at the time, most likely isn't a CIMT anyway.
-I think you're completely okay to travel on ESTA!

Also, see my thread generally on this topic and in particular my post on page 6 of the thread, here: http://britishexpats.com/forum/showt...=761244&page=6 If you could let me know what you think of my post on page 6 of that thread and if it was of any help to you that would be great, as I was subjected to a lot of negative criticism for it! Thanks!

Guitarmanmusic

Thank you both for your in depth very very helpful responses and also for putting my mind at ease. i've been looking forward to this holiday for a considerable amount of time and the build up to it has somewhat been tainted by this worry! I'm most certainly going to be saving this thread as a reference to refer to when i have little doubts here and there.

In relation to BritishExpatriate very in depth and helpful answer the links you sent me, some don't work.


" See page 23 here for more info on this: http://www.state.gov/documents/organization/86942.pdf "

this particular one doesn't have 23 pages when i open it to view it. It only has 4. And (https://help.cbp.gov/app/answers/det...used/related/1) this link goes to an "error page not found" part of the US border protections website. Would it be possible for you to clarify these for me for reference so i can do as you said and print them off/save them as a file on my pc?

thank you all once again!

Guitarmanmusic

Thank you all for your replys! That has truly put my mind at ease that the decision i made was the correct one and i will stand by it. Thank you!

I'm certainly going to favourite this forum as it is a wealth of information on all subjects.

I just wanted to ask Britishexpatriate - the links you provided, only one appears to be working.

The link you mentioned had 23 pages only seems to have 4 pages when i open it. Is this the wrong documents or did you mean page 2 to 3?

Within the document i'm struggling to find the relevant information also relating to CIMT and Juvenile reprimands.

I think printing these out or even saving them to my tablet pc im taking with me will help me have the wealth of information with me in the event i am questioned on the matter at the borders in the US.

Thank you once again for taking your time, both yourself and Ian. it truly does mean and awful lot!

guitarmaan

Hey, you seem so familiar for some reason.....

BritishExpatriate

Yeah you're right. They have basically shortened the Foreign Affairs Manual volume 9 as far as I can see. Firstly, what this document is is a training manual thing that's given to the border officers and also given to us on the ESTA help website- therefore making it a legitimate source to cite or refer to when you're at the port of entry. (POI)

They've taken the old version off the internet all together. Just so that you know what I was talking about, you can still access the original 23+ page document by visiting this link and downloading it:

http://www.google.co.uk/url?q=http:/...7YS3UUxNXpaGBw

...and on this webpage:

http://blog.davidbreston.com/2009/07...ral-turpitude/

Despite this change, there is nothing to worry about as the law has not changed. All they have done as far as I can see is to remove these introductory paragraphs:
[I]
9 FAM 40.21(a) N9.1 Definition9 FAM 40.21 Notes Page 22 of 27U.S. Department of State Foreign Affairs Manual Volume 9 - Visas(TL:VISA-29; 01-12-1990)

The Federal Juvenile Delinquency Act (FJDA) defines a juvenile as a “person who has not attained his 18th birthday” and defines juvenile delinquency as “the violation of a law of the United States committed by a person prior to his or her 18th birthday which might have been considered a crime if committed by an adult.”

9 FAM 40.21(a) N9.2 Using U.S. Standards(TL:VISA-46; 08-30-1991)

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 ineligibility under INA 212(a)(2)(A)(i)(I).[/I]

I think the reason they've removed these paragraphs is because they generally wanted to water down the Foreign Affairs Manual, to create a more concise document that only covers the essential elements of the law, to make it simpler.

Remember, when you're at the POI, you need to be able to demonstrate where you found the Foreign Affairs Manual (FAM) by showing the ESTA help page that you got it from- otherwise they can just say it's irrelevant to ESTA!

I have new links for you. If you go to this ESTA help page:

https://help.cbp.gov/app/answers/det...used/related/1

Click on where it says, "You can look here for a more detailed description of CIMTs."

That will then take you straight to the updated version, which is currently located at this URL:

http://www.state.gov/documents/organization/86941.pdf

It states:

"(2) Conviction for crime committed under age 18.

(i) An alien will not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) (8 U.S.C. 1182(a)(2)(A)(i)(I)) by reason of any offense committedA) Prior to the alien's fifteenth birthday, or(B) Between the alien's fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code.

(ii) An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, will be subject to the provisions of INA 212(a)(2)(A)(i)(I) (8 U.S.C. 1182(a)(2)(A)(i)(I)) regardless of whether at the time of conviction juvenile courts existed within the convicting jurisdiction."

IN SHORT:

- You don't even need to rely on the exception contained in INA 212(a)(2)(A)(ii)(I) for a single CIMT committed under the age of 18, although if your reprimand was mistakenly deemed to be a CIMT, then you would be covered by this exception anyway. As you were not tried as an adult it would not make you ineligible under the provision that 212(a)(2)(A)(ii)(I) would then except you from. In other words, you could have committed a second offence when under 18, and you would have needed to be tried as an adult despite being underage before you needed to rely on the 212(a)(2)(A)(ii)(I) exception. Sorry if that's a bit confusing. In any case, if in doubt you can just throw the pages 6-7 of the Foreign Affairs Manual (as linked above) at them, as well as the exception contained in 212(a)(2)(A)(ii)(I). (Even though you don't need to rely on the exception as you were not "tried" as an adult.)

When you reach the POI, the officer should really know this stuff off by heart. It goes without saying that unless asked about your criminal history you don't need to bring it up. Just stand at the counter, smile, be confident and happy. Have your return flight booked and have the purpose of your trip in your mind so you can answer quickly without hesitation. If you do all this then the chances of you being taken into "secondary inspection", (where you're taken aside and dissected!) are remote. Like I say, even if the officer does ask you about you criminal history, she/he should know this stuff off by heart and shouldn't need you to tell them what the law is! But if they do ask why you ticked "no" on ESTA, you need to show them this page from the ESTA website, https://esta.cbp.dhs.gov/esta/WebHel...elp_1.htm#APA2, and in particular the bit where it says,

"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."

Print it off and highlight the relevant text in blue! (Or any other colour of your choosing!)

The reason for this is because some people think you should answer the question on ESTA literally, and not in context of the IMA. That's why this guidance from the ESTA website is crucial, as it justifies you having ticked "no" on the ESTA form, having interpreted the question according to the IMA and not literally. But like I say, the immigration officer really should know what they're doing...

Also, if you look at the websites of the various US embassies around the world, not all of them tell you to get a visa if you've been arrested before. The CBP officer at the POI will deal with everyone in the same way regardless of the advice given on their respective country's US Embassy website, and it seems clear from the ESTA website that only people from a VWP participating country who are ineligible to travel on ESTA are those who are ineligible for a tourist visa. Therefore, if your're eligible for a tourist visa under the IMA as above, then you're also eligible to use travel on ESTA! Good Luck!

ian-mstm

JFC, does everything with you have to be a full blown treatise?

Ian

BritishExpatriate

Lol. Don't use the Lord's name in vain!

P.s. Thanks Ian nothing has made me laugh quite so much in a while!

Sue

You asked, and had answers to similar questions before under another username:

http://britishexpats.com/forum/showthread.php?t=707470

http://britishexpats.com/forum/showthread.php?t=705854

We don't allow members to have more than one username, so please PM me and let me know which username you wish to keep.

Thanks

ian-mstm

Since he's nothing to me, I don't much care! That said... if I've offended anyone other than you, I apologize!

Ian

BritishExpatriate

Regardless, I had time on my hands and it's important for the OP to understand each of the grounds under which he's not ineligible for travel under the VWP. It has made him more confident and could make the difference between standing at the POI making a nervous answer about CIMT's, etc + taken into secondary inspection for a grilling, or simply answering confidently because he's well informed and being let straight through into the country.

captainsensible

Of course, all that great advice from someone who hasn't even tested his own, rather dubious, circumstances could be seen as irrelevant....

Just saying

BritishExpatriate

Test my own advice? I don't have to test anything. All I had to do on the ESTA form was to answer honestly, and that I did.

I haven't advised the OP on anything other than the obvious things like to book a return flight when travelling on the VWP. I have, however, linked him to guidance by the US government about ESTA and criminal offences ages under 18, in relation to a criminal offence he was arrested for when under 18- Saying that's irrelevant to his situation is like trying to argue black is white. I honestly don't understand the reasoning behind your comment!

gingy123

"I guess the conflicting information between ESTA and the US Embassys website is what confuses me and many others i'm sure."

I am these others!! I am planning a visit to the US this year and when I was 12 was given a reprimand for criminal damage. Since then I have had no more offences and I am now 18.

I want to apply for a VWP as I have heard that I can despite my reprimand. However, I also have heard conflicting things from different websites and I am worried that if I get to the border gates I may be questioned if they do a backround check and my reprimand appears. I am very worried about this as I obviously do not want to be sent home.

My question is:
Were you ok when visiting the US this august and getting through the border gates? Was your reprimand even mentioned?? Would you advice me to get a VWP too??
Any help or advice would be very much appreciated. Thankyou!!!!!