travelling to usa with section 10 conviction

[hunt]

hi guys, need info asap pls.

I was given a section 10 (B) in april 2010 for minor drug possession. It was my first and only offence. I was given an 18month bond. I thought i was sweet with travelling as there is no criminal record, but after reading up some info I see that the record stays until the bond expires. I have already filled out my ESTA form and as it says "have you been found guitly/convicted of any crime" I amswered no, as a section 10 means no record, but am now worried that I may get knocked back from us customs. tickets are booked and I am going in 1 month.

any info on what to do?

cheers hunt

 

[PaulC83]

Although there are some people here who can give you an idea of information, given the short timeframe you have and the potential inconvenience if you don't sort it out, I suggest getting in touch with the American consulate. Generally with these things honesty is the best policy. Unfortunately however I don't know how good your chances are especially if you are still on a bond....

 

[hunt]

**** aye...thanks heaps for your info mate. ill be on it asap

 

[Egg]

If you got a section 10, then you were not convicted of the offence (assuming we're both talking about the Crimes (Sentencing Procedure) Act - NSW.) You were discharged on condition that you enter a bond, without proceeding to conviction.

The problem though is that i think they dont just ask whether you've been convicted, but also whether you've been "arrested" - which is a different thing, and an unfair question, because you can be arrested in relation to an offence for which you are ultimately found not guilty...

 

[hunt]

this is exactly my issue, i had answered no to be convicted because of what the section 10 means. but now after reading that because i have a 18 month bond this will stay active until the bond expires, hence when i arrive in the usa on my name it will show up.

even though no actual conviction or criminal record was recorded.

Im unsure of how the us customs will take it,

any ideas? has anyone else had this issue or known whether if on a bond on a section 10, you will be ok when entering customs?

thanks for the feedback too guys.

hunt

 

[Lawlass]

I'm not sure it "shows up" anywhere. I have a couple of minor convictions from a long time ago but it never occurred to me to mention them and I've been in and out of the US several times.

 

[cove]

With half of America doing dope and the other half wondering about it very few could be allowed to travel anywhere.
Have you ever heard of anyone admitting on a form about espionage or carrying $10,000 in cash?
I admitted to the second one and on a jumbo full of passengers I was the only one according to the cabin chief.
What I am saying is your fellow passengers admit nothing although we see some folks taken away to an interview room.
Now that doesnt mean guilty or anything.
In 31 years we have had one staff member sent home from Los Angeles because he could not explain how he could live in America for 6 months when he had about $4000 for his stay.

 

[Maca44]

My young nephew has a number of 'convictions' dating back 8 to 10 years, and he simply writes "no" to the I94W form (no longer used) and has no problems. He travels annually to the US. Likewise, when he applied for the ESTA he wrote no. The majority (if not all) on this site will advise you to check with the US Embassy, but if you do that inquiry will no doubt be recorded against your name. Also if you do, your visa will be knocked back and you will be referred for adjudication which you will not get back within the month, and I am skeptical whether it would be approved given that your offence relates to a drug offence, albeit a minor one considering the Section 10. Under the Privacy Act I don't know if Australia can release any info to the USA about your criminal history in any event.

 

[hunt]

thanks for the feedback
I wonder how I would go using this as my defence when and if I apply for a visa and sit the interview
this is the definition from the US sites for crimes involving moral turpitude

​

(II) A violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

​

Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if-

(II) The maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

does this mean I would be technically allowed a visa?

also, I have emailed the us embassy of my concerns, do you think this would be recorded aswell?

 

[Maca44]

thanks for the feedback
I wonder how I would go using this as my defence when and if I apply for a visa and sit the interview
this is the definition from the US sites for crimes involving moral turpitude


(II) A violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.


Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if-

(II) The maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

does this mean I would be technically allowed a visa?

also, I have emailed the us embassy of my concerns, do you think this would be recorded aswell?

If you have emailed the US Embassy then you would have provided your name, possibly departure date and flight details etc. In any event they have your email address. Now, because of this email I think you have no option but to apply for a visa; go through the process of being initially rejected, and then have your application further adjudicated on. I feel confident from other threads on this same topic that you will not receive a reply within the time frame of your departure date, one month away and should consider other options, at least reschedule your flights for later in the year until approval is hopefully granted. I think the email you sent might have you between a rock and a tight place..

 

[Skyring]

The question on the visa waiver form/site goes well beyond what the legislation requires. You have to be convicted of a crime of moral turpitude to be refused admission, not just arrested. By answering "yes" to that question you would be raising an "interview me" flag. Legally, the USA can't reject you for being arrested when there was no conviction recorded.

My own feeling is that the intent of the legislation is to keep an eye on actual criminals, and the US couldn't care too much about someone with a low-level record, such as smoking a bit of dope, juvenile shoplifting etc.

However, now that you've hoisted your head above the parapet, best to follow through, demonstrate bona fides and so on. Get as much paperwork as you can accumulate, any forms, the arresting officer's name, photographs of the stash, date of the hearing, aerial photography etc. Don't expect a quick result.

 

[hunt]

thanks for the info, guess i shouldve just tried to go straight there. oh well.

as i am travelling with 3 other people and we are going through central and south america do you guys see any problem in me flying to santiago and transferring on to mexico where I would meet my friends? I would get there 2 weeks later than if i went through the states.

I assume customs would be a bit easier and my record probably wouldnt need to be explained. is that correct?

cheers

 

[Oneworldplus2]

If you have emailed the US Embassy then you would have provided your name, possibly departure date and flight details etc. In any event they have your email address.

Just create a phony Gmail/Yahoo/Hotmail address in about 5 minutes and that will sort that problem out.

 

[ButFli]

Legally, the USA can't reject you for being arrested when there was no conviction recorded.

Under what law? Legally, any country can prevent an alien entering for whatever reason they like. The principles of natural justice, due process etc do not apply.

Besides, OP answered no to the question about being arrested for a "violation related to a controlled substance". If OP was arrested (I'm assuming he was) he has lied on the visa waiver application. That lie in itself is reason enough to be denied entry.

If you got a section 10, then you were not convicted of the offence (assuming we're both talking about the Crimes (Sentencing Procedure) Act - NSW.) You were discharged on condition that you enter a bond, without proceeding to conviction.

A s 10 order counts as a conviction until the bond is discharged. OP was given an 18 month bond less than 18 months ago, therefore OP is considered to have been convicted.

 

[Skyring]

Under what law? Legally, any country can prevent an alien entering for whatever reason they like. The principles of natural justice, due process etc do not apply.

Well, that's the boat people problem solved then!

I stand corrected on the difference between crimes involving moral turpitude and violations involving controlled substances.

Wikipedia is of some guidance here.

And, turning to the legislation:

2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-


(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement 2/ were 5 years or more is inadmissible.

 

[ButFli]

Well, that's the boat people problem solved then!

I was going to mention certain exceptions but I didn't think anyone would be petty enough to raise them. You don't seriously think a tourist visa and a claim for asylum are comparable, do you?

If you want to talk about the USA's treatment of boat people... Boat people who are intercepted by the US Coast Guard have their applications for asylum determined at sea. The Coast Guard crew's decision is final - no right to due process or natural justice, no avenue of appeal. Those who are rejected have their boats pointed back to where they came.

 

[Skyring]

I was going to mention certain exceptions but I didn't think anyone would be petty enough to raise them. You don't seriously think a tourist visa and a claim for asylum are comparable, do you?

Only in the context you raised, where you said, "Legally, any country can prevent an alien entering for whatever reason they like. The principles of natural justice, due process etc do not apply."

I disagree about due process and the USA. From what I've seen, they are very big about doing things by the book, even if it's trivia. Punch that "I was arrested" button on the form (or website nowadays) and due process is going to grind you slowly down.

As for petty trivia, you're now in a community where the regulations governing lounge access and the number of guests you may sign in are subject to detailed discussions ranging (and raging) over weeks.