Criminal record and obtaining a US visa

[serfty]

I thought a bond was the sentance rather than a finding of guilt that would be recorded?

At the very least, in Victoria, to have a "Criminal Record", you need to be "convicted".

To be convicted you need to have been assessed for either:

1. A fine (not "poor box" payment)
2. Probation
3. Jail Term

A bond is none of these.

 

[Dave Noble]

The on line ESTA does indeed perform checks.

If it's really "1999" (i.e. Over 10 years) and your friend has "kept their nose clean" since then in a legal sense they do not have a criminal record. This should be true if a visa waiver application is performed from within Australia and an applicant may quite legally answer no to relevant questions in the ESTA application.

- it is likely to be approved if all the above is true.

The issue is not whether convictions are "spent" as far as Australia is concerned since this is for a US visa and cannot truthfully answer the questions regarding arrest/conviction on the form if one occurred

 

[serfty]

The issue is not whether convictions are "spent" as far as Australia is concerned since this is for a US visa and cannot truthfully answer the questions regarding arrest/conviction on the form if one occurred

Do one's ESTA in OZ where legally you can answer no if you have a spent conviction then travel to the USA on NZ2 or NZ6 whare ther are no I94W forms to fill out.

 

[markis10]

At the very least, in Victoria, to have a "Criminal Record", you need to be "convicted".




To be convicted you need to have been assessed for either:

1. A fine (not "poor box" payment)
2. Probation
3. Jail Term

A bond is none of these.

I thought a good behaviour bond often has either a fine or a term of imprisionment waiting should you not be of good behaviour, the Victorian system does have two bonds:

1. Adjourned undertaking or Good Behaviour Bond with conviction
2. Adjoined undertaing or Good Behaviour Bond without conviction (CRO)

Thats according to the Victorian Deputy Chief Magistrate in 2006, and then you have the published policy of Vic Police:

"Findings of guilt without conviction and findings resulting in a good behaviour bond are considered to be findings of guilt and will be released under Victoria Police policy."

www.police.vic.gov.au/retrievemedia.asp?Media_ID=38447

 

[Dave Noble]

Do one's ESTA in OZ where legally you can answer no if you have a spent conviction then travel to the USA on NZ2 or NZ6 whare ther are no I94W forms to fill out.

Question B seems remakably similar to the I94W

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? *

If the person has ever been arrested or convicted then cannot truthfully answer no

Dave

 

[serfty]

...
If the person has ever been arrested or convicted then cannot truthfully answer no

Dave

Of course not ...

But when within Australian Jurisdiction a person with such a spent conviction can legally answer so ...

 

[serfty]

I thought a good behaviour bond often has either a fine or a term of imprisionment waiting should you not be of good behaviour, ...

With the latter, should a bond be breached the offender goes back before the Judiciary.

With the former, there's often an an automatic sentence and "conviction", although these I believe do tend to go back the the Judiciary in any case (thereby deactivating the AUTO bit).

"Findings of guilt without conviction and findings resulting in a good behaviour bond are considered to be findings of guilt and will be released under Victoria Police policy."

As literally posted: This is a finding of guilt without conviction. This directly relate to what can be advised to US government agencies. The finding of guilt, even though not a conviction, can be disseminated to agencies such as US immigration. After ten years or less (depending upon the state), if there is no further offense by the person, such finding of guilt becomes "passed" and can no longer legally be disseminated.

 

[markis10]

With the latter, should a bond be breached the offender goes back before the Judiciary.

With the former, there's often an an automatic sentence and "conviction", although these I believe do tend to go back the the Judiciary in any case (thereby deactivating the AUTO bit).

To go back to my original post where I disagreed with your statement:

Originally Posted by serfty
For a start ... if all you received was a bond, you do not have a "Criminal Record".

Its pretty clear Vic Pol dont agree with you and will release the details as part of your records check " a good behaviour bond are considered to be findings of guilt and will be released under Victoria Police policy " , and I suppose they are the ones who matter in this case , in my mind that means a record since that is what they are talking about releasing

 

[serfty]

... Its pretty clear Vic Pol dont agree with you and will release the details as part of your records check " a good behaviour bond are considered to be findings of guilt and will be released under Victoria Police policy " , and I suppose they are the ones who matter in this case , in my mind that means a record since that is what they are talking about releasing

As noted in my previous post here, a "finding of guilt" does not, by definition, necessarily result a "Criminal Record". Of course, there is some record, albit, perhaps, not "Criminal". However, information regarding such finding may still be disseminated in line with VicPol guidelines and Victorian Government legislation.

However, Victorian government legislation also dictates that once such findings become passed or spent they may not be legally passed to entities such as US immigration.

 

[Dougo]

Personally, I would pay the 12 bucks on my CC and speak to someone at the US Embassy, make an appointment if necessary as they are the ones making the decision regardless of what our laws state.

For all I know, they may have access to anyone of a number of sensitive databases under the guise of exchange of information about terrorist activities.

So better to be safe than sorry. The fact that people are raising concerns on this forum about whether or not they require a visa alerts me to the fact that they have doubts about whether or not they'll be accepted at the border or turned away.

Considering the cost of the holiday and the possiblility of being turned away causing a substantial loss against a $12 phone call ??? Just make the call.

 

[opusman]

All else aside, I got a chuckle out of "moral turpentine"

 

[zetski210]

Of course not ...

But when within Australian Jurisdiction a person with such a spent conviction can legally answer so ...

I've been through this process and after speaking to immigration attorneys as well as US consulate officials, it doesn't matter what jurisdiction the arrests/convictions were issued in, US customs does not care.

The convictions they refer to are immigration convictions and have nothing to do with criminal convictions. As far as they are concerned, if you have ever been officially placed under arrest (regarding moral rurpitude), even if you were released without being charged, or a finding of guilt resulted (whether it be a guilty plea, or a magistrates decision) this constitutes an immigration conviction and MUST be disclosed.

Summary:
if you have EVER been arrested (for crimes of moral turpitude) you cannot legally answer "no" on their VISA waiver program. No matter how many years have passed, or where the crimes were committed, or what the sentencing was.

 

[serfty]

...

Summary:
if you have EVER been arrested (for crimes of moral turpitude) you cannot legally answer "no" on their VISA waiver program. No matter how many years have passed, or where the crimes were committed, or what the sentencing was.

Of course, that's the USA view.

I stand by my comment; after 10 years of keeping your nose clean the USA would never legally know unless the applicant tells them. So it is up to the applicant whether they wish to take on the (long) odds..

 

[jessica_f]

Hi All,

I have looked to this thread for a few answers regarding my travels to the USA. I found the information here and on the USA embassy website conflicting. Here is my story......

NOV 2005 - charged with: Obtain property by deception & theft. No conviction recorded, $3000 fine.
AUG 2008 - charged with: Obtain property by deception. No conviction recorded, $500 fine. Mind you this offence occurred in 2005 but it was marked on my record from the court date, 3 years later

Now after reading USA Embassy website, I thought I was home free as it stated a waiver would not be considered for anyone who had completed a sentence within 5 years or who had been charged with murder ect. Now I thought that by "sentence" they were referring to prison time ect.

I went to my interview with my police check, letters from employers ect. I was asked about my work, studies, purpose of my trip ect. I was then asked about my criminal history. I was upfront and told them exactly what was on my record. The gentleman said I was denied (I expected this) and that waivers are not be requested within 5 years of any sentence being completed. Now I was shocked as I did not consider myself as having served a sentence. But he said that considering my studies and work history he would pass it on to his boss and asks for it to be sent on for a waiver

I called the embassy a few days latter and it has been requested. I am not getting too excited as I am well aware it maybe denied but I wanted to share this with people on the forum who are telling others that a waiver will not be requested within 5 years of any crime. It's just not true. I had a court outcome dated AUG 2008 and even though I had a letter from my Lawyer stating in the offence took place in 2005 blah blah blah, the man doing my interview still said it was no more than 2 years old


So to cut a long story short, it was put through for a waiver with "findings of guilt" less than 5 years old. Not sure how much this played a part but I am travelling with my Mother and have certainly mended my wicked ways.

Will keep you posted on the outcome!

 

[jessica_f]

Hi Stevemillo, i can't reply to your message - so here it is

Hello,
I was charged in 2005 with Theft and Obtain Property by Deception (this went to court in a few weeks so the date on the police check is in accordance with when i committed the crime). I was then arrested again in 2006 with Obtain Property by deception, but it took the police over 2 years to take me court (they were actually not going to take me to court, but ended up doing so). So the charge from 2006 showed up as a 2008 (as the police checks in Victoria show the court date - not arrest date). So the way the embassy looked at it, I had recent charges (being 2008).

 

[Skyring]

For all I know, they may have access to anyone of a number of sensitive databases under the guise of exchange of information about terrorist activities.

So better to be safe than sorry. The fact that people are raising concerns on this forum about whether or not they require a visa alerts me to the fact that they have doubts about whether or not they'll be accepted at the border or turned away.

Answering YES to the question and/or requesting a visa seems to be a recipe for delay and expense, if not actual denial. Admit to a childhood arrest and the US embassy wants the court documents, the arresting officer's name, the date of the crime, whether you picked up the litter and so on.

I had a long discussion on this topic some time ago with a coworker in the IT industry. String of arrests dating back to childhood, fines, jail time. All now spent, though when they first travelled to the US they weren't. Always answered NO, never refused entry in many years of frequent US visits. Breezes through immigration.

My guess is that minor stuff - convictions that are or will be spent - don't show up on whatever check the US runs on entry. I'm also guessing that the sort of crimes that would show up are those of either international significance (Interpol, war crimes etc), serious in nature (murder, drug smuggling etc.) or have some unknown security or moral interest to the USA.

I'm also thinking of the sort of bozos they pull up on the Borderline Security TV shows. If there was a database easily accessible with medium level crimes like assault, drug use, fraud etc, then most of these folk would be noticed on scanning the passport. Instead, they usually make some slip and reveal details of the crimes/arrests.

Then again, the people who get turned back are generally the ones who are evasive or try to dissemble. Or who have traces of previous drugs or act suspicious or are just generally stupid.

 

[Hvr]

Answering YES to the question and/or requesting a visa seems to be a recipe for delay and expense, if not actual denial. Admit to a childhood arrest and the US embassy wants the court documents, the arresting officer's name, the date of the crime, whether you picked up the litter and so on.

Or in the words of the immortal Arlo Guthrie:

"Kids, this-piece-of-paper's-got-47-words-37-sentences-58-words-we-wanna-
know-details-of-the-crime-time-of-the-crime-and-any-other-kind-of-thing-
you-gotta-say-pertaining-to-and-about-the-crime-I-want-to-know-arresting-
officer's-name-and-any-other-kind-of-thing-you-gotta-say", and talked for
forty-five minutes and nobody understood a word that he said, but we had
fun filling out the forms and playing with the pencils on the bench there,
and I filled out the massacre with the four part harmony, and wrote it
down there, just like it was, and everything was fine and I put down the
pencil, and I turned over the piece of paper, and there, there on the
other side, in the middle of the other side, away from everything else on
the other side, in parentheses, capital letters, quotated, read the
following words:

("KID, HAVE YOU REHABILITATED YOURSELF?")

Seems just as real today as it must have been then.

 

[Skyring]

Or in the words of the immortal Arlo Guthrie...

I see you've had a classical education!

 

[serfty]

Or in the words of the immortal Arlo Guthrie:



Seems just as real today as it must have been then.

Havn't come across Alice's Restaurant in Decades ...

 

[nixrate]

Hi,

I recently got charged with two offenses of; negligently use of explosives and manufacturing/possession of explosives. (Just a bored teenager studying chemistry who decided it would be a great idea to make explosives and blow junk up in the bush). I got a 18month good behavior bond for it, I am currently 19.

Anyway, I have had my heart set on moving to America and working there when I finish university(chemical engineering/bachelor of science majoring in chemistry). By the time I finish my offense will have been 5 years ago fitting the criteria, I don't see it as being violent or in possession of a controlled substance and I spent no time in prison over it. I am a bit worried though in the current terrorism climate if such an offense will me barred from entering.

I have been arrested once before but wasn't charged with anything nor was it pursued so i assume the details of such wouldn't be available or be a problem to homeland security. I was also interviewed by the police over a explosives related injury when i was about 15 too, likewise they just wrote some stuff down never heard from them again. aside from that my record is pretty clean.

I sent a number of emails to the US embassy in Australia asking about it and they simply replied in the same way, 'we cannot give a likely hood of if i would be allowed or denied and it would depend on the interview'. So I suppose what I want to know is what is the likely hood of me being allowed in.