Criminal record and obtaining a US visa

[serfty]

An ESTA has two years validity, and it's quite easy to update you hotel if doing multiple visits to the USA.

i.e. don't worry, put in where you are thinking of staying and update when you have booked the accommodation.

Note that the airlines require you to restate this information anyway. (As part of their mandated API [advanced passenger information] collection.)

 

[will2rob]

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.

They don't need to conform with our laws, only any agreement they have signed with us. When it comes to border protection, the yanks couldn't care less about what anyone else thinks. They give virtually unfettered power to their customs agents to refuse entry to the USA to anyone they decide they don't like the look of, visa or no visa.

 

[Skyring]

They don't need to conform with our laws, only any agreement they have signed with us. When it comes to border protection, the yanks couldn't care less about what anyone else thinks. They give virtually unfettered power to their customs agents to refuse entry to the USA to anyone they decide they don't like the look of, visa or no visa.

And the legislation for this is...?

 

[will2rob]

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

Irrelevant, but clearly, you will not accept you're wrong.

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.

You are correct, police have access to everything. The other types of abbreviated records are for court use or visa applications and are merely the case of checking the relevant box before printing the criminal history.

Bottom line is that the yanks ask applicants to declare their prior arrests. If someone chooses not to disclose their history they may get away with it. We do have agreements in place to share law enforcement data as part of the VWP so there is a chance they will be detected, whether that is a low or high probability. If detected, the yanks will take a very dim view of people providing misleading or false information and in that case, the best they can hope for is to be refused entry and told to get on the next plane back to Australia. There are no appeals in those circumstances so they won't even get a chance to try to argue the toss about spent convictions or whatever.

 

[Skyring]

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?

Thanks for the information, but the recurring scenario here is as I outlined. It's people who have been arrested but never convicted, or convicted of some minor crime. Drink driving, shoplifting, the sort of things young men get up to before they settle down.

The ESTA form requires people to disclose arrests, but there's no legislative backing for this. Consequently we see people rushing around, holidays at risk, gathering documents, having interviews, spending money, getting stressed.

It's not people with serious criminal records, it's people with minor offences, often a long time ago in the spent convictions period. This thread and other similar ones are full of these stories.

Are we sending their records off to the USA? Anecdotal evidence here suggests we are not.

 

[basso]

Thanks for the information, but the recurring scenario here is as I outlined. It's people who have been arrested but never convicted, or convicted of some minor crime. Drink driving, shoplifting, the sort of things young men get up to before they settle down. The ESTA form requires people to disclose arrests, but there's no legislative backing for this. Consequently we see people rushing around, holidays at risk, gathering documents, having interviews, spending money, getting stressed. It's not people with serious criminal records, it's people with minor offences, often a long time ago in the spent convictions period. This thread and other similar ones are full of these stories. Are we sending their records off to the USA? Anecdotal evidence here suggests we are not.

It is simply that if you have had an arrest, they want you to proceed down a particular path for gaining entry. If you have no arrests, then you have a simpler path for gaining entry. An arrest may not stop you gaining entry, but it will complicate your process of getting there.

 

[Skyring]

Bottom line is that the yanks ask applicants to declare their prior arrests. If someone chooses not to disclose their history they may get away with it. We do have agreements in place to share law enforcement data as part of the VWP so there is a chance they will be detected, whether that is a low or high probability. If detected, the yanks will take a very dim view of people providing misleading or false information and in that case, the best they can hope for is to be refused entry and told to get on the next plane back to Australia. There are no appeals in those circumstances so they won't even get a chance to try to argue the toss about spent convictions or whatever.

This forum is full of people taking a keen interest in global travel. Anecdotal evidence, or lack of it, suggests that the scenario above rarely occurs.

 

[Skyring]

It is simply that if you have had an arrest, they want you to proceed down a particular path for gaining entry. If you have no arrests, then you have a simpler path for gaining entry. An arrest may not stop you gaining entry, but it will complicate your process of getting there.

Needless complication, as we see time and again here. There's no legislative backing for the ESTA form wording. It's the lounge dragon denying entry when the terms and conditions allow it.

 

[serfty]

I do believe one should be honest with their answers to the questions, both on the I94W card that we used to fill out and now the ESTA.

Irrelevant, but clearly, you will not accept you're wrong. ...

Whether I am wrong or not is irrelevant. Maybe moreso how I may be wrong.

FWIW, I am personally aware of three situations in the last 10 years where Australian visitors to the USA were permitted entry after dishonestly answering "No" to all questions where they indeed had prior convictions / bonds which qualified in relation to Passed/Spent conviction regulation.

There is also an anecdote here regarding a person being denied entry after answering "No" to all questions where the conviction was less then ten years before attempting admittance.

http://www.australianfrequentflyer....a-waiver-program-to-usa-6431-2.html#post98274

I have never come across an anecdote of a person being denied entry after answering no to all questions where they had convictions / bond that qualified for information protection in relation to Passed/Spent conviction regulation.

While there is information sharing, it might not be not consistent or, perchance, the Passed/Spent conviction regulation may indeed be effective. I do note that in the thread I linked to there is a post with a comment that the Oz Authorities do indeed provide all arrest/conviction/etc information for any visa applicant for the previous 5 years. Provision of such would not conflict generally with 'spent/passed' conviction regulations.

As indicated at the start of this post, I do not believe that people should be dishonest in their answers to their waiver application (ESTA). As you have posted, the risk generally is not worth it.

 

[will2rob]

And the legislation for this is...?

Immigration and Naturalisation Act. I'm sure you're familiar with it. I'll give you a hint, start at s.214. (b)
USCIS - Immigration and Nationality Act

INA 214(b) is the number one reason for nonimmigrant visa denials. It is referred to as "failure to establish entitlement to nonimmigrant status," or more commonly, "presumption of immigrant intent" because the majority of 214(b) denials are applied to intending immigrants.
The State Department issued 6.5 million nonimmigrant visas in 2008, but also rejected 2.1 million visa applications. Among them, almost 1.5 million (~ 70%) were denied based on INA 214(b).
What is Section 214(b)?

The Immigration and Naturalization Act (INA) states under Section 214b that:

Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status...​

What it means is that a consular officer must view every nonimmigrant visa applicant as an intending immigrant who is planning to visit and then permanently stay in the U.S. The applicant, therefore, must prove to the officer that s/he is going to return home after the temporary visit. If the consular officer is not satisfied, he is required to deny the nonimmigrant visa application.
Visa Denials under INA 214(B) and Presumption of Immigrant Intent

If you jump through those hurdles, or come to the USA under the VWP, you still have to convince Customs and Border Protection of the same if they take an interest in you:

If the CBP officer has any concerns about you, your travel, or your documents, or if you are selected randomly for additional processing, the CBP officer
will direct you to the CBP Secondary Area, where you may be interviewed further to determine whether you are admissible to the United States.
http://www.cbp.gov/linkhandler/cgov/newsroom/publications/travel/welcome2us.ctt/welcome2us.pdf

Issuance of a visa does not guarantee entry to the United States. A visa simply indicates that a U.S. consular officer at an American embassy or consulate has reviewed the application and that officer has determined that the individual is eligible to enter the country for a specific purpose. The CBP Officer at the port-of-entry will conduct an inspection to determine if the individual is eligible for admission under U.S. immigration law.
Requirements for Immigrant and Nonimmigrant Visas - CBP.gov

CBP officials – their power and authority – what they can do?

CBP officers conducting the inspection at a U.S. Port-of-Entry have complete power and authority and it is up to their discretion to conclude whether or not a foreign national is eligible to enter the U.S. It is only after a CBP officer stamps and dates the I-94 form, places an admission stamp in the foreign national's passport, and the foreign national passes through the inspection station that the foreign national is admitted to the United States.

Secondary Inspection – what leads you to a secondary inspection?

If the first CBP officer that a foreign national meets feels that the inspection requires additional time for review to determine a foreign national's eligibility, the officer may refer the foreign national for a “secondary inspection.” This secondary inspection at a U.S. Port-of-Entry is a much more comprehensive review, and can take several hours to complete. Generally a foreign national referred for secondary inspection is not considered to be “admitted” to the United States.

What generally happens in a secondary inspection?

In secondary inspection, CBP officers will ask foreign national more detailed questions about their travel plans for the U.S. Foreign nationals may even be asked to produce additional identification and other documentation in order to determine their actual identity and purpose of their visit to the United States. The foreign national and their belongings may also be searched, and the foreign national may be required to give a full set of fingerprints.

Any person, foreign national or person with a claim to U.S. citizenship and presenting a U.S. passport may be sent to secondary inspection at a U.S. Port-of-Entry if the CBP officer has reservations about admitting him to the United States. A person may also be sent to secondary inspection if there is a possibility the person is smuggling contraband or violating any other customs or immigration regulations, or federal law in general.
Do Immigrants Have Any Rights in the U.S.? - VisaPro Immigration Articles

 

[will2rob]

This forum is full of people taking a keen interest in global travel. Anecdotal evidence, or lack of it, suggests that the scenario above rarely occurs.

The State Department issued 6.5 million nonimmigrant visas in 2008, but also rejected 2.1 million visa applications. Among them, almost 1.5 million (~ 70%) were denied based on INA 214(b).
Visa Denials under INA 214(B) and Presumption of Immigrant Intent

CPB does not publish statistics on denial of entry at airports, so the only available statistics would suggest otherwise. There is plenty of "anecdotal evidence" this does occur. see http://bit.ly/195sdJx

 

[will2rob]

I do believe one should be honest with their answers to the questions, both on the I94W card that we used to fill out and now the ESTA.


As indicated at the start of this post, I do not believe that people should be dishonest in their answers to their waiver application (ESTA). As you have posted, the risk generally is not worth it.

On that we agree. My personal view is it is simply not worth the risk as my own personal experience shows that you can get flagged for simply having the same name as a person of interest and if CBP start digging deeper, that fib that you thought they would never find out about could come back to bite you. It's a little like drug couriers. No doubt 99% get through customs without a hitch, which is of little comfort if you are unfortunate enough to be in the 1% who do get caught.

 

[harvyk]

There is a whole lot of interesting things, will2rob I don't actually agree with some of what you are saying, and I base that off certain forms I have seen in the past which did required full disclosure of all convictions spent or otherwise and it made damn sure it spelt out the reasons why the spent convictions scheme didn't apply. On all other forms of this nature where spent convictions did apply it made it pretty clear that spent convictions where just that, there needed to be a damn good reason why a conviction needed to be disclosed once the 5/10 year timeframe had passed.

I am aware that law enforcement agencies will hand over information freely, that information would still need to be handed over in accordance with the countries laws, and no offense will2rob, but if you asked for arrest records from the UK, you'd have no idea if information was been excluded by the UK law enforcement prior to them handing details over to AU law enforcement, even if they did appear to hand things over freely.

As to potentially wrong advice, well this is a public forum, I always put my standard diclaimer on, if someone wants to follow the advice of an internet crazy like myself over actual legal advice, esp in matters of immigration, then so be it.

Of course there is alway the thing that the law is never black and white, there are many shades of gray, and thus it's the reason why you can get two lawyers arguing out the various aspects of the law for hours / days. As such I'm not just going to take the word of a retired copper as gospal.

 

[will2rob]

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.

Innocent until Proven guilty doesn't apply. You have not entered the USA until you clear customs. The CPB officer has the final say and if he or she refuses you entry, that's it. Aliens have no rights of appeal or access to lawyers etc on that side of the barrier, it's back on the plane and see you later. The situation is different for U.S. Citizens who are entitled to an attorney.

Draconian? Hell yeah. Welcome to LOTFAP.

 

[The Rok]

Innocent until Proven guilty doesn't apply. You have not entered the USA until you clear customs. The CPB officer has the final say and if he or she refuses you entry, that's it. Aliens have no rights of appeal or access to lawyers etc on that side of the barrier, it's back on the plane and see you later. The situation is different for U.S. Citizens who are entitled to an attorney.

Draconian? Hell yeah. Welcome to LOTFAP.

Why is it draconian? Their country, their rules. If you don't like it then don't go.

 

[will2rob]

There is a whole lot of interesting things, will2rob I don't actually agree with some of what you are saying, and I base that off certain forms I have seen in the past which did required full disclosure of all convictions spent or otherwise and it made damn sure it spelt out the reasons why the spent convictions scheme didn't apply. On all other forms of this nature where spent convictions did apply it made it pretty clear that spent convictions where just that, there needed to be a damn good reason why a conviction needed to be disclosed once the 5/10 year timeframe had passed.

No worries if you don't agree, no skin off my nose, I am clear when I state something based on my experience over many years or when I am stating an opinion. As I quoted in an earlier post, there are a number of exemptions within that spent conviction legislation and ss (j) is vague enough to drive a bus through. I don't know what "certain forms" you are referring to, but I do know my way around police and criminal procedure. Believe what you will, it's all good.

I am aware that law enforcement agencies will hand over information freely, that information would still need to be handed over in accordance with the countries laws, and no offense will2rob, but if you asked for arrest records from the UK, you'd have no idea if information was been excluded by the UK law enforcement prior to them handing details over to AU law enforcement, even if they did appear to hand things over freely.

No offence taken and you make a very good point. All mutual cooperation between countries is based on trust. However it all depends on what the terms of the agreements between the countries are in terms of what information will be disseminated upon request. Generally speaking statute law trumps common law, Federal laws trump state laws and international agreements can override a signatory country's domestic law. So while one piece of legislation might say one thing something else might contradict it.

As to potentially wrong advice, well this is a public forum, I always put my standard diclaimer on, if someone wants to follow the advice of an internet crazy like myself over actual legal advice, esp in matters of immigration, then so be it.

Very true.

Of course there is alway the thing that the law is never black and white, there are many shades of gray, and thus it's the reason why you can get two lawyers arguing out the various aspects of the law for hours / days. As such I'm not just going to take the word of a retired copper as gospal.

Nor should you and nor do I care. Everyone is free to take what they will out of the discussion on this thread.

 

[will2rob]

Why is it draconian? Their country, their rules. If you don't like it then don't go.

Perhaps you should invest in a dictionary:

Draconian is an adjective meaning great severity, that derives from Draco, an Athenian law scribe under whom small offences had heavy punishments (Draconian laws).

CBP officers having unfettered discretion to refuse entry with no right of appeal for non citizens is thus suitably described.

But I do agree it is their country and their rules, and their right to do what they damn well please which is exactly the point I have made in my earlier posts. Others have argued to the contrary, so perhaps you should direct your last comment to them.

 

[basso]

Needless complication, as we see time and again here. There's no legislative backing for the ESTA form wording. It's the lounge dragon denying entry when the terms and conditions allow it.

The requirement for a Visa has legislative backing. The waiver program allows certain people from certain countries a bit of an exemption from the requirement. If you fall outside those parameters, you go through the normal process. Remember, the Visa is the norm, the exemption is a privilege.

 

[Skyring]

The State Department issued 6.5 million nonimmigrant visas in 2008, but also rejected 2.1 million visa applications. Among them, almost 1.5 million (~ 70%) were denied based on INA 214(b).
Visa Denials under INA 214(B) and Presumption of Immigrant Intent

CPB does not publish statistics on denial of entry at airports, so the only available statistics would suggest otherwise. There is plenty of "anecdotal evidence" this does occur. see Let me google that for you

This whole forum is anecdotal evidence. We're talking about a specific scenario here: where entry is sought under a Visa Waiver, the traveller has an arrest record but either no conviction(s), a spent conviction or one which does not fall into the "moral turpitude" category and has answered NO to the ESTA question about being arrested.

So the 1.4 million rejections of visas are irrelevant. Australians don't need a visa.

Of course, they might apply for one if they have once been arrested for something minor, in which case they then go through the normal months of delay and expense etc.

The trick with the Google search was fun, but I couldn't find a case in the first six pages of results which matches the scenario above.

While I have no difficulty believing that Australia and the USA share large volumes of data - quite possibly via unpublicised means relating to that transit bloke in Russia - it doesn't appear that spent or juvenile or minor convictions, let alone arrests, are routinely shared with the USA.

Because the community here would know all about it, in the same way that we know the good hotels, the best credit cards, the best seats on the plane, the rules for lounge entry and so on.

Having said that, I join with others in agreeing that the best way is to keep one's nose clean and to be honest. Some of the activities we routinely describe and discuss here might look untoward, such as high speed global transits, or moving large amounts of money through credit cards. I've certainly had checkin clerks look at my itinerary and exclaim in astonishment, offering to remove Perth and Melbourne from my Canberra-Sydney journey, or wondering why I'm flying into Heathrow from four different destinations within a week.

There is nothing quite so comforting, when confronted by folk in uniforms and badges, sometimes carrying assault rifles, as knowing you are in the right with a clear conscience, and the only contraband in your luggage is a few hundred Tim Tams and a couple of dozen loyalty cards.

 

[Skyring]

The requirement for a Visa has legislative backing. The waiver program allows certain people from certain countries a bit of an exemption from the requirement. If you fall outside those parameters, you go through the normal process. Remember, the Visa is the norm, the exemption is a privilege.

Of course. But the ESTA form asks about arrests and the legislation doesn't.

I don't think I'm being unduly picky by wondering about the discrepancy. This forum is populated with people hunting for loopholes and exceptions. Flounging via JQ or buying large quantities of petfood in a weekend.