Criminal record and obtaining a US visa

[jetlagger]

The USA has the right to impose whatever conditions it deems necessary on travellers, but it seems far less 'friendly' at the 'border' than when one goes to Europe.

IME the U.S. authorities are being vigilant for very obvious & well documented reasons.
I would never expect any immigration facilitation of any country to be 'friendly".
There are always obscure, yet appropriate questions when entering the U.S. & as long as one is honest, transparent & compliant with the screening methods it is never a problem.

 

[Skyring]

Yes, lying on the form is grounds to refuse entry. You are committing an indictable criminal offence in Australia at least by making that statement. I am no expert on US law apart from the fact that they generally have similar laws to us. e.g. Fraud is against the law in both countries though the precise definition of what constitutes fraud or the proofs of the offence may very.

I know this about US law. Innocent until proven guilty.

So lying on the form may be a crime - or a misdemeanour, more likely - but until you are convicted, it's not a conviction. We can discount Lonely Planet as a reliable legal opinion, I think, and the warnings from US Customs etc. fall into the same official but casual misrepresentation as the ESTA wording.

Not having a go at you, but it all comes down to the legislation, not what a foreign cop thinks is a reasonable thing.

I'll take your point about the VWP. Accept those provisions and you also accept that a customs official may deny entry. For whatever reason.

And also that it is their country and their rules. My point is that there ARE rules. They are written down as law or gazetted as regulations and they aren't necessarily the same as what someone paraphrases on a website or form. Or imagines they might be.

 

[Skyring]

There are always obscure, yet appropriate questions when entering the U.S. & as long as one is honest, transparent & compliant with the screening methods it is never a problem.

This has been my experience as well. Not just the US - the immigration folk at Heathrow will examine passports with microscopes, Australia cheerfully excises the whole continent from the migration zone, and New Zealand gets very twitchy about mud on your hiking boots.

I have no problem with any nation making its own laws. What I do object to is ignorant officials or TSA staff deciding that they can just make up laws on the spot.

 

[serfty]

Of course, there is legislation in relation to "Passed" or "Spent" Convictions that makes things interesting.

These are such thatAustralian Federal and most state government agencies are prevented by law from providing to institutions such as the US CBP in relation to Visa applications.

Yes, a "telephone call" can be made or other unofficial approach, but for an agent of a government entity to disclose such information in direct contravention of the law would be problematic.

 

[Flashback]

Grounds for exclusion & deportation

If on your visa application form you admit to being a subversive, smuggler, prostitute, junkie, terrorist or an ex-naz_, you may be excluded. You can also be refused a visa or entry to the USA if you have a ‘communicable disease of public health significance, ’ a criminal record or if you’ve ever made a false statement in connection with a US visa application. However, if these last three apply, you can request an exemption; many people are granted them and then given visas.
US immigration has a very broad definition of a criminal record. If you’ve ever been arrested or charged with an offense, that’s a criminal record, even if you were acquitted or discharged without conviction. Don’t attempt to enter through the Visa Waiver Program if you have a criminal record of any kind; *assume US authorities will find out about it.

I find the bolded piece interesting. That is referring to any arrest or charge, however on the VWP it relates only to crimes of moral turpitude. So which is it?

 

[will2rob]

There's a relevant thread here:

http://www.australianfrequentflyer....ing-us-vwp-app-criminal-29744.html#post431733

In reality there is information that Australian Federal and most state government agencies are prevented by law from giving out to institutions such as the US DHS in relation to Visa applications.

Yes, a "telephone call" can be made or other unofficial approach, but for an agent of a government entity to disclose such information in contravention of the law would be problematic.

skyring also summarises the reality here:

http://www.australianfrequentflyer....waiver-program-question-14757.html#post193042

Sorry serfty, but in simple language, you are wrong and your advice is incorrect.

I have read the threads you have referred to and merely citing your opinion pro-offered on other threads is not proof of anything. Please point me to the specific legislation (Act & Section) that supports your contention. If you are relying on the spent convictions legislation, there are a couple of things you haven't taken into account.

Firstly there are a number of exclusions that apply to the spent convictions legislation so it is not as clear cut as your internet research leads you to believe:


Exclusions from the scheme

While information about quashed convictions or free and absolute pardons can never be taken into account or disclosed, Div 6 of Pt VIIC of the Crimes Act provides for exclusions from the operation of the legislation with respect to spent convictions. The legislation specifically excludes the following bodies from the scheme:

(a) a law enforcement agency, for the purpose of making decisions in relation to prosecution or sentencing or of assessing prospective employees or prospective members of the agency;
(b) an intelligence or security agency, for the purpose of assessing prospective employees or prospective members of the agency;
(c) a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing;
(d) a person who makes a decision under the Migration Act 1958, the Australian Citizenship Act 1948, or the Immigration Act 1980 of the Territory of Norfolk Island, for the purpose of making that decision;
(e) a person or body who employs or otherwise engages other persons in relation to the care, instruction or supervision of minors, for the purpose of finding out whether a person who is being assessed by the person or body for that employment or engagement has been convicted of a designated offence;
(f) a person or body who otherwise makes available care, instruction or supervision services for minors, for the purpose of finding out whether a person who is being assessed by the person or body in connection with those services has been convicted of a designated offence;
(g) a Commonwealth authority, for the purpose of assessing appointees or prospective appointees to a designated position;
(h) the Cash Transaction Reports Agency, for the purpose of assessing appointees or prospective officers or members of the agency;
(i) the Australian Government Solicitor, for the purpose of instituting or conducting proceedings for Commonwealth offences;
(j) a prescribed person or body for a prescribed purpose, in relation to a conviction for a prescribed offence
​

Note subsection (j) which is broad enough to cover anything that is required to be exempted. There is a reason that section is written that way, because it effectively negates any prohibition contained in the act. Most legislation generally has a clause to cover unintended consequences or provide an exemption when needed.

How the real world works, is that the USA and countries such as Australia have various pieces of security legislation, treaties and memorandums of understanding that allow for bilateral exchange of information. While I have no specific knowledge of the exact data exchange mechanism , I do know that information concerning international movements is routinely exchanged. All of the security services look for flags to identify persons of interest. It is not inconceivable that one such flag could be a false declaration regarding criminal history. A potential terrorist is unlikely to declare a criminal history on a declaration so that is likely to be one likely flag which would be programmed into a screening program. That is not to say that either country would automatically have instant access to your full criminal history, but once flagged as a discrepancy the next step is to request your criminal record.

I have conducted criminal investigations in the UK, NZ and Singapore during my police career, have worked with overseas investigators here and have friends who have worked as liaison officers at AFP overseas posts and can assure you, there is generally good exchange of information between police forces. One of the duties of the AFP Liaison Officers overseas (and their counterparts in embassies here) is to facilitate requests for information from other police forces. Naturally, the information exchange varies depending on the country but it is pretty free between Aust/NZ/UK/USA/Canada. In these days of heightened security post 9/11 and Bali and the growth of transnational crime, there is more cooperation and sharing of intelligence between countries than ever before.

Additionally, Australia is a member of Interpol. Here's what Interpol says about information exchange between member nations:

Data exchange

As national boundaries become increasingly meaningless to criminals, effective and timely police communication across borders is more important than ever before. At INTERPOL, one of our priorities is to enable the world’s police to exchange information securely and rapidly.
Two tools deliver this aim:

• 1​
  I-24/7
• 2​
  I-link

I-link: taking data exchange to the next level

Every day, law enforcement officers in member countries around the world exchange thousands of messages, often urgent, using I-24/7. The effective management of these messages is vital.
I-link is a unique and dynamic operational system that centralizes and continually enhances database features. It will also help make connections between seemingly unrelated investigations, by identifying common threads. Officers in National Central Bureaus (NCBs) and other authorized users are able to access I-link through the I-24/7 network.
Key features

I-link:

• Provides an international structured communication standard, ensuring consistency and operational relevancy of recorded and exchanged police data.
• Offers adaptable structured forms enabling national systems to seamlessly transmit information, thereby increasing the quality and the quantity of information available.
• Enables the direct recording of police information into INTERPOL’s criminal database, eliminating information processing times.
• Grants immediate access to real-time police information.
• Is available in all four of INTERPOL's official languages: Arabic, English, French and Spanish.

Instant international alerts

All international alerts for wanted persons – either in the form of an INTERPOL Red Notice or Diffusions – are now submitted through I-link. In a matter of seconds, member countries can draft and submit an alert seeking the arrest of a wanted criminal, with the information recorded instantly into the Organization’s central database and immediately accessible to police around the world.
Three other types of Notices are also available through I-link: Yellow, Green and Blue (for missing persons, warnings and seeking additional information, respectively).

I-24/7: a secure global police network

We developed the I-24/7 global police communications system to connect law enforcement officers in all our member countries. It enables authorized users to share sensitive and urgent police information with their counterparts around the globe, 24 hours a day, 365 days a year.
I-24/7 is the network that enables investigators to access INTERPOL's range of criminal databases. Authorized users can search and cross-check data in a matter of seconds, with direct access to databases on suspected criminals or wanted persons, stolen and lost travel documents, stolen motor vehicles, fingerprints, DNA profiles, stolen administrative documents and stolen works of art.
Empowering frontline officers

With I-24/7 installed at all 190 National Central Bureaus, we are now focusing on extending access to INTERPOL services beyond the NCB and out to frontline officers such as immigration and customs officials.
Different technical solutions are available and give officers in strategic locations direct access to three key INTERPOL databases: those on nominal data, stolen and lost travel documents, and stolen motor vehicles.
Supporting all operational activity

The I-24/7 network underpins all INTERPOL operational activity. From routine checks at border crossings to targeted operations against different crime areas, and from the deployment of specialized response teams to the search for international fugitives, I-24/7 is the foundation of information exchange between the world's police.



I reiterate that police maintain your full criminal history, spent convictions or no spent convictions and the only relevance of the legislation is to ensure that you are not discriminated against for employment. Police can produce a criminal history check excluding any spent convictions by selecting that option when running the report. They can just as easily produce your full history including arrests, fines, warrants, AVOs, juvenile cautions etc. Additionally, police maintain intelligence holdings which are not part of your criminal history but include can include unsubstantiated information such as when the neighbour you were arguing with rang crime stoppers anonymously and dobbed you in for drug trafficking, child coughography etc. and in certain circumstances, this information could be disseminated to another agency.

​

 

[serfty]

You are welcome to your interpretation, however I do not agree.

Simply put, I believe the USA CBP is not an exempt organisation as you would like to think.

I don't disagree with you in what information is kept, what I do disagree with is who it can be provided to in relation to "spent/passed" convictions for visa purposes.

 

[Skyring]

I find the bolded piece interesting. That is referring to any arrest or charge, however on the VWP it relates only to crimes of moral turpitude. So which is it?

It's as per the legislation, which refers to moral turpitude, controlled substances and commercialised vice.

The legislation is the key. To put it in a perspective we can all relate to, imagine that you are looking to enter a lounge that is affiliated with the airline you regularly fly. You have studied up the terms and conditions and you are sure that you will be allowed entry, but when you get to the lounge door, the dragon on duty denies you entry, giving you a reason which is clearly at odds with the published rules.

That's why people ask questions here, and that's why some knowledgeable folk are familiar with the terms and conditions and can provide links. It's not what I think is a fair thing, or what my experience might have been years ago, or what I heard from someone somewhere. It's not even what might be printed in advertising or in a brochure. It's what the published terms and conditions state.

 

[will2rob]

You are welcome to your interpretation, however I do not agree.

Simply, put I believe the USA CBP is not an exempt organisation as you would like to think.

Fair enough, except that you are offering opinion as fact in your previous posts. You didn't say you believed that was the case, you asserted as a fact it was the case. Big difference.

One last point. The only way that countries like Australia get to participate in the Visa waiver program is when they agree to share information with the USA:

[h=2]How can a country join the VWP?[/h]A country must meet various requirements to be considered for designation in the Visa Waiver Program. Requirements include, but are not limited to:

• enhanced law enforcement and security-related data sharing with the United States;
• issuing e-Passports;
• having a visitor (B) visa refusal rate of less than three percent;
• timely reporting of both blank and issued lost and stolen passports; and
• maintenance of high counterterrorism, law enforcement, border control, and document security standards.

Designation as a VWP country is at the discretion of the U.S. government. Meeting the objective requirements of the VWP does not guarantee a country will receive VWP designation.

I have pointed to plenty of facts to support my contentions, and have clearly identified what I know from professional experience and what I opine.

 

[Flashback]

It's as per the legislation, which refers to moral turpitude, controlled substances and commercialised vice.

That was my reading of it too. So if you've been arrested, but it was for a crime that was not of moral turpitude, then you can use the VWP? That's what is unclear to most it seems...:!:

 

[Skyring]

You are welcome to your interpretation, however I do not agree.

Simply put, I believe the USA CBP is not an exempt organisation as you would like to think.

I have no doubt that police routinely exchange private information for their own purposes without running it past a judge first, but I think I'd like to see some court decisions on whether the US CBP is "a prescribed body..."

Typically the inquiries in this forum refer to an arrest for something minor. Shoplifting or drink-driving or whatever. People plan a holiday or a honeymoon and when they read the ESTA declaration their memory flashes back to being arrested and they wonder how they are situated.

The usual route of applying to the US embassy for an exemption is long, complicated and expensive. If people leave it too late to apply, they risk being turned back because they have done the right thing and the Americans are taking their sweet time in deciding whether shoplifting a Mars Bar is grounds to refuse entry. You may be sure that while that investigation is ongoing there will be a flag on the record and bells will go off at the border.

Fair enough to exchange information about movements of known drug traffickers, white slavers or whatever.

But I find it very hard to believe that Australia routinely dumps all arrest data into the US system in order to catch someone who once lifted a lolly or two from the corner shop. Or drove over the limit.

Or that police waste their time over such trivia.

 

[Flashback]

I have no doubt that police routinely exchange private information for their own purposes without running it past a judge first, but I think I'd like to see some court decisions on whether the US CBP is "a prescribed body..."

Typically the inquiries in this forum refer to an arrest for something minor. Shoplifting or drink-driving or whatever. People plan a holiday or a honeymoon and when they read the ESTA declaration their memory flashes back to being arrested and they wonder how they are situated.

The usual route of applying to the US embassy for an exemption is long, complicated and expensive. If people leave it too late to apply, they risk being turned back because they have done the right thing and the Americans are taking their sweet time in deciding whether shoplifting a Mars Bar is grounds to refuse entry. You may be sure that while that investigation is ongoing there will be a flag on the record and bells will go off at the border.

Fair enough to exchange information about movements of known drug traffickers, white slavers or whatever.

But I find it very hard to believe that Australia routinely dumps all arrest data into the US system in order to catch someone who once lifted a lolly or two from the corner shop. Or drove over the limit.

Or that police waste their time over such trivia.

As per the US.gov legislation drink driving is not a crime of moral turpitude anyway.

 

[Skyring]

That was my reading of it too. So if you've been arrested, but it was for a crime that was not of moral turpitude, then you can use the VWP? That's what is unclear to most it seems...:!:

That's my beef. The form asks if you've been arrested, but the legislation itself imposes a far tighter net. If they could rationalise their language to conform with the law, that would reduce a lot of confusion.

 

[Hvr]

As per the US.gov legislation drink driving is not a crime of moral turpitude anyway.

And yet a drink driving offence will see you barred from entering Canada unless you gain specific permission to enter.

 

[Skyring]

As per the US.gov legislation drink driving is not a crime of moral turpitude anyway.

Depends on your church elders...

Here's the wording from the ESTA:

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?

How many people have any idea what a crime of "moral turpitude" is? Is it drinking bad spirits? Turps maybe? And why "arrested"? That's not in the legislation.

 

[Flashback]

Depends on your church elders...

Here's the wording from the ESTA:
[/FONT][/COLOR]
How many people have any idea what a crime of "moral turpitude" is? Is it drinking bad spirits? Turps maybe? And why "arrested"? That's not in the legislation.

There's a link to a PDF that lists them all. Let me see if I can find it...

 

[Flashback]

Here you go: https://www.state.gov/documents/organization/86942.pdf

 

[serfty]

...

But I find it very hard to believe that Australia routinely dumps all arrest data into the US system in order to catch someone who once lifted a lolly or two from the corner shop. Or drove over the limit.

Or that police waste their time over such trivia.

Especially if the event occurred long enough ago to be covered by the framework of spent/passed legislation.

Of course, someone working for an Australian police force doing an authorised search would see the complete record - everything, no matter how old and how minor. They would be used to such and I suspect would rarely come across an abbreviated record during the performance of their duties.

 

[coles525]

My being stupid, but when or after you apply online for the visa waiver program; must you provide the hotel detail(s) so soon?

Reason I ask is because I just want all the visa/legal stuff to be completed well before the trip (nothing bad done, but if I need to wait 6 month to verify, rather start now...).

Our hopeful trip (approval from work) will be between Oct - Nov next year....

Thus hotels aint gonna be booked just yet....

 

[will2rob]

I have no doubt that police routinely exchange private information for their own purposes without running it past a judge first, but I think I'd like to see some court decisions on whether the US CBP is "a prescribed body..."
.

But I find it very hard to believe that Australia routinely dumps all arrest data into the US system in order to catch someone who once lifted a lolly or two from the corner shop. Or drove over the limit.

Or that police waste their time over such trivia.

You'll find that there will be some high level agreements regarding information exchange between Australia and the US and the mechanics will be contained within a Memorandum of Understanding. Those sort of agreements are unlikely to be public documents because it is all wrapped up in security and terrorism.

You are quite correct that we wouldn't be routinely dumping arrest data into a US system. That is not how theses things work, it's all done through analytics and data matching. The systems of both countries would operate in a similar manner, raw data in the form of visa applications, ESTAs, movement records passport info etc all goes into the system and software flags records against pre set criteria, those records are then examined in more detail. I can't give specifics because I don't have direct knowledge, but identified records are then referred for closer vetting.

You are looking at this in the context of a minor crime and obviously, who cares about nicking a lolly from the corner shop? But when you're pushing through tens of thousands of pieces of data per month, human intervention doesn't come in until later in the process. The system identifies an anonomly and flags the record. Say it is a name which matches a name in the NNI database-flag. No arrests declared - flag. That record and others identified go onto a list and electronically sent off to Interpol, the AFP or whoever for processing under the informtion sharing arrangements. At this stage, the only human intervention would be procedural if at all. Data gets fed into the criminal records registry and the records are processed electronically. At this stage the only checking is whether the data request has been answered. 100 records requested, 98 found, 2 not matched. Etc. Results get returned through the system back to the yanks. It is at this point someone might look at it.

When I was pulled aside at LAX, I know the customs guys were checking me against the National Names Index as I overheard snippets of the conversations between the agent and his supervisor. we have an NNI system as does the states, so I can't say for sure which NNI database they were discussing Now I think about it, they asked me if I had ever had any involvement with Law Enforcement, which is quite an unusual phrasing. As a police officer, my fingerprints had been taken when I joined the police and I am in Australian NNI as a result. Anyone doing a name check on that system would see my name, DOB and CNI (Criminal Names Index) number. They would have to drill down into that entry to see a warning that I was a current (or former) police officer. When I told them I was an ex police officer they accepted that straight away, which now makes me think they had that information so they could eliminate me as the Hells Angel with the same name. They could only have the information to verify my statement that I was a former police officer if they had been able to access the system or request my record in the time I was with them.

Bottom line is that Australia only gets to participate in the Visa Waiver Program if we agree to share enhanced law enforcement and security related data with them. Just what do you think that means, if not more access to our criminal and security intelligence systems?