VISA Waiver Program to USA

[Maca44]

Can someone please assist with this question. My friend's 23 year old son is getting married in May 06, and has booked an around the world honeymoon with his last stop being from FRA via JFK to LAX, then Hawaii for a few days before returning to Sydney. All up, about 5 weeks.

About four years ago, after a couple of drinks and on his way home, he took a forklift (which he didn't own) for a drive around the footpath and struck a wall causing minor damage. However, as there was damage of about $600 to the wall the the machine he was charged with stealing a motor vehicle in lieu of illegally use a motor vehicle. Due to the minor nature of the incident, when he went to court the offence was 'proved' but the magistrate did not record a conviction and he was placed on a 6 month bond.

Now the problem starts. As he was arrested, (not convicted), he did the right thing as per the Visa Waiver procedures and applied for a visa to enter USA. However, when he went to the Sydney office of the American Consulate today they refused him a visa citing that he had been charged with an offense of "Moral Turpitude", which I thought only involved someone throwing a phone in a hotel, anyway..

Does anyone know what can be done now, what his rights of appeal are, or even if he has any rights in that regard. I suggested he could always travel via Toronto, then Vancouver and spend some time in the rockies, but he wants to do the American thing. Any advice please would be greatly appreciated.

 

[Dave Noble]

One could argue that he was admitting to moral turpitude based on his application since the I94W asks

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking to engage in criminal or immoral activities YES/NO

If it wasn't a moral turpitude offence there would be no need to apply for a visa and could have just entered under the VWP

Doing a look into Moral Turpitude (from the Handbook of Criminal Evidence by Davis ) it does say ( for Georgia)

It has been held that the following offenses are crimes involving moral turpitude:
• Fraud or false pretenses in obtaining something of value
• Larceny or a misdemeanor theft by taking
• Larceny after trust
• Murder
• Soliciting for prostitutes
• Voluntary manslaughter
• Sale of narcotics or other illegal drugs
• Pattern of failure to file federal tax returns in years in which taxes are due
• Criminal Issuance of a bad check
• Making a false report of a crime

it would seem that the offense in case does relate to moral turpitude

It is possible to appeal against a refusal for a US visa and if he wishes to do so , perhaps phone the Embassy and ask about the process. If that appeal fails , then that's really it for now. Given that the offense was only 4 years ago, I wouldn't bet on success

Dave

 

[Maca44]

Thanks Dave for your reply. I don't know whether he has made an error by applying for the visa or whether he could have just taken the (huge) risk, but in saying that he is a great kid and he simply wants to do the right thing.

The I94W form does ask if you have ever been arrested or convicted for an offense or crime involving moral turpitude or a violation etc etc, but when you read the conditions under which a waiver can be applied to an Aussie travelling to USA it states that, and I quote, you must apply for a visa if you have ever been arrested "or" convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?

The key word is arrested "OR" convicted, and not arrested AND convicted. I can't find any info on if there is an avenue of appeal or whether the US Consulate decision is final.

 

[Dave Noble]

The I94W form does ask if you have ever been arrested or convicted for an offense or crime involving moral turpitude or a violation etc etc, but when you read the conditions under which a waiver can be applied to an Aussie travelling to USA it states that, and I quote, you must apply for a visa if you have ever been arrested "or" convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?

I was only going from the I94-W form and I was under the impression that the only need for applying for a visa if you have a YES answe

The question asks separate points

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance;

been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more;

or been a controlled substance trafficker;

or are you seeking to engage in criminal or immoral activities

To me, that reads that unless the crime is of moral turpitude , drugs or that there were 2 or more offenses with sentence > 5 years

Hey ho, if there is another document detailing this in greater detail, c'est la vie

Dave

 

[MD]

This web page will help http://foia.state.gov/masterdocs/09fam/0940021aN.pdf. Note in particular the comments about age (although it sounds as though your friend's son won't qualify here).

My advice would be to involve a US immigration lawyer at an early stage. Although it will cost $$$$ the consequences of a declined visa application will follow this guy for life, if he ever intends to travel to the US.

MD

 

[robertz]

Tricky situation.

An I94W, is issued on the plane entering the US, so if he had some issue, then it could have been investigated on entering the US. But then again, it would only have been because he ticked a box and not from INS datamatching.

The bigger problem I think, is he has submitted a DS-156, application for Non-Immigrant Visa and has been declined. Now if he tries to enter the US, without a Visa, he will be pinged. (This will be DataMatched, for sure)

Where to go from here?

I would be seeing a lawyer to construct a letter saying that
the DS-156 was submitted in error, as the arrest doesn't constitute "moral turpitude" in the context of which INS state and giving details.
"false pretenses in obtaining something of value" explaining that there was no intent of keeping the folk lift for monetary value, as it was stupid drunken teenage episode.
(With lots of Blah, Blah and legal jargon) and sending that to US Consulate in Sydney. And waiting for a response.
I'm not sure what else he could do. :?
The assumption is he will never be allowed to enter the US, especially with a rejected Visa application and a "moral turpitude" arrest as it sits now on the application.

Its a pity you didn't post this last week. Us Aussies here in Atlanta had our Australia Day party at Richard Pratt's house, where I was speaking to the Consular General for SE US. Could have asked her what to do

Anyway.... Keep us informed, what happens...

 

[meloz]

The lesson here for other forklift joy riders wishing to enter the USA is dementia.

I have a friend of a friend who has forgotten his previous forklift joy ride, hijacking, bank robbery, attempts to overthrow a foreign government, etc. when entering the USA.

He has had no problems entering on every occasion.

Meloz

 

[markis10]

And I have always forgotten to tick yes to the question "are you a terrorist" which from memory appears on the form LOL, seriously I would love to know if anyone has ticked yes!

 

[Mal]

This web page will help http://foia.state.gov/masterdocs/09fam/0940021aN.pdf.

That document seems to imply that Joy Riding is not a moral turpitude type offence.

I also agree with robertz. I think a letter from a lawyer (preferably one who knows all about US Immigration laws) and some kind of appeal would be the only option. Suggest like others asking the Embassy what appeal processes exist before seeing the lawyer.

 

[Dave Noble]

This web page will help http://foia.state.gov/masterdocs/09fam/0940021aN.pdf.

That document seems to imply that Joy Riding is not a moral turpitude type offence.

I also agree with robertz. I think a letter from a lawyer (preferably one who knows all about US Immigration laws) and some kind of appeal would be the only option. Suggest like others asking the Embassy what appeal processes exist before seeing the lawyer.

Except that he was charged and, effectively convicted, with stealing a motor vehicle which is a different offence. Stealing is a moral turpitude offense

I would go with checking what the appeals process is ( if there is one for a tourist non-immigrant visa refusal ) and, if going to the USA is that important, get legal advice

tbh, unless there is a procedural error, I would be surprised if an appeal made a difference

Dave

 

[Dave Noble]

The lesson here for other forklift joy riders wishing to enter the USA is dementia.

Nothing like making a recomendation to commit a criminal offense in order to cover up a previous one

Dave

 

[262sammy]

And I have always forgotten to tick yes to the question "are you a terrorist" which from memory appears on the form LOL, seriously I would love to know if anyone has ticked yes!

Surprisingly the answer is yes... This is a 'friend of a friend' type story but apparently he did it as a joke... As you might imagine US immi did not see the humor. He is apparently not welcome back for at least the next five years.

 

[Maca44]

Thanks for you comments. With this being the first time I have heard of this problem I can only imagine the many number of people who have been charged with shoplifting or other minor crimes, and who wish to enter the USA. I doubt whether they would tick YES on the I94W form. Maybe it would have been better if he had killed someone as the yanks tend to tollerate those actions better. However, back to the subject and as mentioned in the previous post he lodged the application for a visa on advice from his TA simply because he was "charged". He was of the view that as there was no conviction recorded it would be okay, and I thought there would be no problem also.

The are so many confusing aspects with various information contained in different sites.

http://canberra.usembassy.gov/consular/visawaiver.html states: Some travelers are not eligible by law to enter the United States. These include people with certain serious communicable illnesses, criminal records (particularly those involved with drugs), previous deportations from the U.S., certain visa refusals and other problems with U.S. immigration laws or visas. Such travelers may apply for specially annotated visas; but they may not use the visa waiver program. If they attempt to travel visa-free, they will be refused entry into the United States.

As you can see the above information for people "not elibiible" by law to enter the USA include people with CRIMINAL RECORDS, but this kid does NOT have a criminal record because there was no conviction recorded, and he was placed on a 6 month bond under (I believe) Section 10 of the Crimes Act.

http://canberra.usembassy.gov/consular/nivfaq.html states in their Q&A section:

Q: I WAS ARRESTED/CONVICTED YEARS AGO, DO I NEED A VISA?
A: Anyone convicted of or punished for a crime involving moral turpitude (regardless of how long ago or if the conviction was not recorded) is ineligible for the Visa Waiver Program and must apply for a visa. If there is any doubt regarding the nature of the offense, it is advisable to apply for a visa. The applicant submits details as to the court date, the type of offense, and the outcome, usually with a police certificate or court documents. If the police certificate says "no recordable convictions" but the person has committed a crime he or she must seek out court documents. He or she must also include the port of entry and exit to/from the US and the expected dates of travel. This information is in addition to the usual requirements for the type of visa being applied for.

At interview, he provided the US Consulate in Sydney with a copy of his bond notice which stipulated that "no criminal conviction was recorded".

He saw a Lawyer yesterday so we will see what happens, but he is that pissed off at the visa system for such a minor incident he is considering going from Frankfurt to Toronto, Vancouver, Hong Kong and Sydney and bypassing USA completely. Problem solved, so will wait and see.

 

[MD]

He saw a Lawyer yesterday so we will see what happens, but he is that pissed off at the visa system for such a minor incident he is considering going from Frankfurt to Toronto, Vancouver, Hong Kong and Sydney and bypassing USA completely. Problem solved, so will wait and see.

It will be of no consolation to your friend, but it is equally difficult for foreigners with convictions to enter Australia. Strange really, seeing that it used to be a prerequisite.

MD

 

[robertz]

At interview, he provided the US Consulate in Sydney with a copy of his bond notice which stipulated that "no criminal conviction was recorded".
.

I've also had the pleasure of spending 5 hours at the consulate in Sydney. Lets just say, it was a taste how incompetent the whole INS department is. But at least its 10x better than the offices here in the States. (My dealings with them, anyway)

I could say, similar to most US departments and govt personal, they are run by people who's whole 'power trip' is to make your life miserable as hell.

And this seems the case in your friends dealings.

Rob

 

[duffshot]

It will be of no consolation to your friend, but it is equally difficult for foreigners with convictions to enter Australia. Strange really, seeing that it used to be a prerequisite.

MD

Classic

 

[Alan in CBR]

Except that he was charged and, effectively convicted, with stealing a motor vehicle which is a different offence. Stealing is a moral turpitude offense

Except that he wasn't actually convicted. There is a big difference between being convicted and having a charge proved without a conviction being recorded. Convictions follow you around for a loooong time, but a fine (and/or community service or whatever) without a conviction should be no more serious than a speeding fine.

That's the point of a judge being able to find the charges proven, but deciding not to enter a conviction. The person in this case is not a criminal; if a conviction is recorded he is.

If I had more confidence in the fairness of US bureaucrats I would say that it should be fairly easy for a lawyer to get this decision overturned. Unfortunately I have no such faith.

 

[Alan in CBR]

If the police certificate says "no recordable convictions" but the person has committed a crime he or she must seek out court documents.

See, this just annoys me. If the judge reviews the facts and decides not to convict you, by definition you haven't "committed a crime"! (Clearly I mean that in a legal sense, in the same way that you are "innocent until proved guilty" even if I saw you shoot the guy. Legally I don't get to decide your guilt; only a court can do that.)

 

[thadocta]

See, this just annoys me. If the judge reviews the facts and decides not to convict you, by definition you haven't "committed a crime"! (Clearly I mean that in a legal sense, in the same way that you are "innocent until proved guilty" even if I saw you shoot the guy. Legally I don't get to decide your guilt; only a court can do that.)

The way the LOTFAP apparently sees is is that want to see if you would have got off the same way if the offence had been committed on their turf - and base their decision accordingly.

I try and steer clear of the LOTFAP for this very reason, namely their claim to be the bastion of freedom yet practising the exact opposite, I go there only when I absolutely have to (like in early May, I trip I can't avoid).

Dave

 

[Dave Noble]

Except that he was charged and, effectively convicted, with stealing a motor vehicle which is a different offence. Stealing is a moral turpitude offense

Except that he wasn't actually convicted. There is a big difference between being convicted and having a charge proved without a conviction being recorded. Convictions follow you around for a loooong time, but a fine (and/or community service or whatever) without a conviction should be no more serious than a speeding fine.

Only under the peculiarity of Australian courts. In this case, the charge was made and the person was guilty , legally, of the crime. The Australian court hiding it under the carpet doesn't mean that any other country will not treat it in the way that they would. The US ( and most countries I posit) do not have this concept.

In this case, I don't see anything wrong with the US approach


Dave