New Guide Discussion: Beat the impending ESTA charge

Widow57

Thank you everyone for all your helpful comments. I have now applied and got an authorisation by return. Only valid until May 2011, when my passport expires.

whatajoke1

ticketcollector wrote: »

the question relating to moral turpitude.

She was Cautioned as a Kid for shoplifting aged 11or12. (would the us count this as Juvenile delinquency?)
She was also Cautioned under S5 Public Order Act and Cautioned for the offence of battery (assault) a year ago.

The http://www.state.gov/documents/organization/86942.pdf document states that
This has now confused the life out of me and my friend, what would the US class this assault as?

Right, lots to think about here

Juvenile delinquency Under INA 212(a)(2)

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.....

I'll stop at that part for a second. I remember a case from a few years back that interpreted the "one crime" rule as any other crime that was a crime involving moral turpitude, so you had to commit 2 crimes involving moral turpitude, BUT I beleive that pertained to someone already resident.

Now, for the 2 other icautions

Cautioned under S5 Public Order Act

What for, threatening behaviour?

Cautioned for the offence of battery (assault)

Was a weapon used, and was the other person injured in any way.

How long ago was the caution for shoplifting, more than 15 years is good.

If you also look at the document you posted (You need to read it, not look at parts that help you, but also parts that destroy arguments - that wasn't a snipe at you, just good advice) you will find under

9 FAM 40.21(a) N2.2 Defining “Moral Turpitude”

Statutory definitions of crimes in the United States consist of various elements, which must be met before a conviction can be supported. Some of these elements have been determined in judicial or administrative decisions to involve moral turpitude. A conviction for a statutory offense will involve moral turpitude if one or more of the elements of that offense have been determined to involve moral turpitude. The most common elements involving moral turpitude are:
(1) Fraud;
(2) Larceny; and
(3) Intent to harm persons or thing.

However, under

9 FAM 40.21(a) N9.4-1 Under Age 15
(CT:VISA-1318; 09-24-2009)
Juveniles, who were under the age of 15 at the time of omission of acts constituting a delinquency, are not to be considered as having been convicted of a crime. Therefore, no alien may be found inadmissible under INA 212(a)(2)(A)(i)(I) by reason of any offense committed prior to the alien’s 15th birthday.

heronfolder

I was under the impression that a caution isn't officially being convicted of crime.

However arrest is... right?

Interestingly the US don't care at all about speeding offences!

whatajoke1

heronfolder wrote: »

I was under the impression that a caution isn't officially being convicted of crime.

Thats correct.

You have to read esta though, it asks about arrests or convictions

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

also the FAM document states

The applicant has admitted or may admit that he or she has
committed acts which constitute the essential elements of a crime
(see 9 FAM 40.21(a) N5).

which by accepting the caution they have admitted.

Question here is whether the person can use the VWP, whether they can "self-certify" Juvenile delinquency (and can they even use the Juvenile delinquency getout) on a question that is precise

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

IMO the person needs to firstly get a copy of the PNC record, see what that says, then consult an immgration solicitor - not CAB or a "general" solicitor but a specialist. Possible problem here is whether you can self-certify the shoplifting - and get a record of the PNC to prove Juvenile delinquency, but the assault. Inparticular these are CiMTs

Assault with Bodily Injury to a Family Member - Matter of Tran, 21 I. & N. Dec. 291 (BIA 1996), held that willful infliction of corporal injury on a spouse, cohabitant, or parent or child of the perpetrator’s constitutes a CIMT.
Matter of Deanda-Romo, 23 I. & N. Dec. 597 (BIA 2003), held a Texas misdemeanor conviction of assault with bodily injury to a spouse was a CIMT. Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003), held California misdemeanor conviction for corporal injury to a spouse was a CIMT. The conviction qualified for the petty offense exception at 212(a)(2)(A)(ii), even though alien was also convicted of battery, a non-CIMT. The limitation that the alien be convicted of only one crime is exceeded only by the commission of a second CIMT, not by the commission of any other type of crime.

22. Aggravated Battery - (a) for causing great bodily harm or (b) use of a deadly weapon. Guillen-Garcia v. INS, 999 F.2d 199 (7th Cir.. 1993).

On a side note (and its just a question, I don't use drugs), would a caution for drug possession prevent entry to Canada - as a caution is immediately spent, and Canada accepts the rehabilitation of offenders act. Definately makes you unable to use the VWP, but the Burgon / Barnett Canadian cases would surely come into play for Canada though.

whatajoke1

UKFiona wrote: »

I want to take full advantage of the 2 years I can get for free without having to reapply and pay. If US authorities start charging on September 8th and I apply on September 7th, how long does it take for the application to be processed? Does the application have to be accepted before the 8th to still be free of charge, or does this not matter, as long as the application is in before the deadline date? Any help that anyone could offer will be much appreciated!

Advice, don't leave it to the last minute. For all you know the servers could go down and you can't complete the application. Anythings possible.

dzug1

UKFiona wrote: »

I want to take full advantage of the 2 years I can get for free without having to reapply and pay. If US authorities start charging on September 8th and I apply on September 7th, how long does it take for the application to be processed? Does the application have to be accepted before the 8th to still be free of charge, or does this not matter, as long as the application is in before the deadline date? Any help that anyone could offer will be much appreciated!

The answer to how long is up to 72 hours

The answer to the rest of your question is a big unknown.

dzug1

heronfolder wrote: »

I was under the impression that a caution isn't officially being convicted of crime.

However arrest is... right?

Interestingly the US don't care at all about speeding offences!

An arrest does mean you cannot use the visa waiver.

A caution is not a conviction in UK eyes - but in US eyes it could be (you've convicted yourself by accepting the caution) - what their official line is - dunno.

ticketcollector

whatajoke1 wrote: »

Right, lots to think about here

I'll stop at that part for a second. I remember a case from a few years back that interpreted the "one crime" rule as any other crime that was a crime involving moral turpitude, so you had to commit 2 crimes involving moral turpitude, BUT I beleive that pertained to someone already resident.

Now, for the 2 other cautions

Cautioned under S5 Public Order Act

What for, threatening behaviour?

Using words or behaviour likely to cause alarm or distress. Basically it was for swearing.

whatajoke1 wrote: »

Cautioned for the offence of battery (assault)

Was a weapon used, and was the other person injured in any way.

No weapon was used, and the other person got bruised arm.

whatajoke1 wrote: »

How long ago was the caution for shoplifting, more than 15 years is good.

She says it was around 15 years ago.

whatajoke1 wrote: »

If you also look at the document you posted (You need to read it, not look at parts that help you, but also parts that destroy arguments - that wasn't a snipe at you, just good advice)

After having spoken to her on the phone I have told her to look in detail at all this herself down the library!

Thanks for the help, from both of us!

whatajoke1

ticketcollector wrote: »

Using words or behaviour likely to cause alarm or distress. Basically it was for swearing.

Not a Cimt

ticketcollector wrote: »

No weapon was used, and the other person got bruised arm.

Simple assault isn't a Cimt (unless its against a child and you're an adult).

ticketcollector wrote: »

After having spoken to her on the phone I have told her to look in detail at all this herself down the library!

Tell her to do a subject access request from her local police station (£10 cost), that will list her record. Take this with her when she goes. If asked if they have ever been arrested answer is "Yes". The subject access shows what they were done for and shows "concern" for the question.

The shoplifting shouldn't count as its

9 FAM 40.21(a) N9.4-1 Under Age 15
(CT:VISA-1318; 09-24-2009)
Juveniles, who were under the age of 15 at the time of omission of acts constituting a delinquency, are not to be considered as having been convicted of a crime.

Its up to the individual, if asked, to prove they are admissable, The subject access will list the offences and show that the shoplifting doesn't count as its juvenile, and the other two aren't CiMTs

But thats just my opinion, which also includes the statement

Question here is whether the person can "self-certify" Juvenile delinquency (9 FAM 40.21(a) N9.4-1 Under Age 15) on a question that is precise.

dzug1

whatajoke1 wrote: »

Right, lots to think about here

I'll stop at that part for a second. I remember a case from a few years back that interpreted the "one crime" rule as any other crime that was a crime involving moral turpitude, so you had to commit 2 crimes involving moral turpitude, BUT I beleive that pertained to someone already resident.

Now, for the 2 other icautions

Cautioned under S5 Public Order Act

What for, threatening behaviour?

Cautioned for the offence of battery (assault)

Was a weapon used, and was the other person injured in any way.

How long ago was the caution for shoplifting, more than 15 years is good.

If you also look at the document you posted (You need to read it, not look at parts that help you, but also parts that destroy arguments - that wasn't a snipe at you, just good advice) you will find under

However, under

mmm not really quoting the bits I wanted.....

Aren't the documents quoted guides to US Consular officials as to whether to grant a visa (in particular an immigrant visa) or not. Not guides to the general public as to whether they are eligible for the visa waiver scheme.

I don't know the answer to the question BTW but they certainly read that way