Does Arrest only, for non-CIMT affect ESTA?

Travel Forums North America Does Arrest only, for non-CIMT affect ESTA?

1. Posted by Stratboi (Budding Member 3 posts) 20w Star this if you like it!

Looking for advice and guidance please;

I am a UK citizen, living in UK. I've travelled dozens of times to USA on both business and holiday during my life. All via ESTA. I've never had any problems/issues with USA entry/exit.

Whenever I've previously applied for an ESTA I have honestly answered my understanding of the question - Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority? as 'NO'

I was arrested/charged when 17, however it was not for a crime that resulted in serious damage to property, or serious harm to another person or government authority. Hence I have always answered 'NO' on the ESTA application and always have been granted an ESTA without issue.

Fast forward to now - I have an existing valid ESTA - Following an allegation against me by a person, I was recently arrested but not charged and subsequently released on Police bail pending further enquiries. The arrest was not for a crime that would be classed as resulting in serious damage to property, or serious harm to another person or government authority.

I presumed that I would be ok continuing to use the ESTA for travel to USA and hadn't even really thought much about travel implications. However looking online, there are confusing and conflicting reports saying that if you've even been arrested for any offence, you then can't use an ESTA (although IMHO that goes totally against the ESTA question asked - Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?)

I appreciate the wording for a US Visa application says - If you have ever been arrested, cautioned and/or convicted of an offense anywhere in the world, you are required to declare it when applying for a visa. - but I am not applying for a US Visa, I am referring to the use of an ESTA, which is a different topic.

I regularly go to USA with work and need to travel again soon.

Am I right in thinking I am OK to use my existing ESTA and travel to USA?

[ Edit: Edited on 13 Oct 2023, 19:29 GMT by Stratboi ]

2. Posted by leics2 (Travel Guru 6059 posts) 20w Star this if you like it!

The reason there are differing opinions relates to the concept of a 'crime involving moral turpitude' which is, as far as I'm aware, unique to US law. A 'crime of moral turpitude' makes an applicant ineligible for entry to the US without being granted a 'waiver of ineligibilty'.

It is the interviewing officer at a visa interview...or US border officers... who determines whether an applicant's criminal record (including e.g. arrests with subsequent NFA, police cautions etc) involves 'moral turpitude' and thus requires a waiver. He/she works within US law plus internal guidelines & regulation which are not in the public domain and will take advice from superiors when necessary.

The relevant Esta question has been simplified over the years...at one time it actually included the phrase 'moral turpitude'...but imo it's no less confusing in its present form. It is perhaps more so because who determines what 'serious' means? Only experts in US immigration law can be certain which crimes may be considered to involved 'moral turpitude' though the list here gives a rough guide:

https://unlock.org.uk/advice/identifying-whether-my-offence-is-a-crime-involving-moral-turpitude-cimt/

You might like to check that your past and more recent arrests were/are not for offences likely to be considered CIMT. Note that this is a rough guide only and is not an exhaustive list.

You refer to the guidance given about visas but, in fact, the US Embassy in the UK has very clear guidance about criminal records and the Esta:

>We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, have a criminal record,...........attempt to travel visa free under the Visa Waiver Program.

https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

The fact that you have been granted an Esta without issue really isn't relevant. Unless your citizenship makes you ineligible, you (or your parents/siblings/spouse/asociates/address) are on a watch list, you are otherwise known to the US authorities or you make a mistake on the form it's very unlikely that an Esta will be refused. But it is the applicant's responsibility to tell the truth and the expectation is that, if there is any doubt or confusion, the applicant will do the right thing and apply for a visa.

>Am I right in thinking I am OK to use my existing ESTA and travel to USA?

Only you can decide whether to continue using an Esta or apply for a visa. US law, entry requirements and expectations haven't changed. Every individual's circumstances are different and no-one here or anywhere else can tell you what's the 'right' thing for you.

NB: If you ever need to apply for a visa in future (e.g. for work purposes) you'll need to provide all the info about your criminal record and the interviewing officer may ask you why you have previously used an Esta.

[ Edit: Edited on 13 Oct 2023, 20:45 GMT by leics2 ]

3. Posted by Stratboi (Budding Member 3 posts) 20w 1 Star this if you like it!

Thanks for the feedback. Much appreciated.

I'd seen and noted the wording on the embassy website >>.>We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, have a criminal record,...........attempt to travel visa free under the Visa Waiver Program. <<

However...it says 'recommend', not 'must' and that's not what the ESTA application says. It clearly states saying 'YES' is only valid if arrest or conviction relates to a crime that resulted in serious damage to property, or serious harm to another person or government authority

If asked by a interviewing officer why you have previously used an ESTA, I would honestly and genuinely answer - because the previous arrests did not relate to a crime that resulted in serious damage to property, or serious harm to another person or government authority. That's what the ESTA application says and those are the facts of my situation.

I'm still confused about why 'any arrest' would be a valid reason not to use a ESTA.

4. Posted by leics2 (Travel Guru 6059 posts) 19w Star this if you like it!

>.it says 'recommend', not 'must'

It says 'recommend' because the legal use and meaning of 'arrest' differs from jurisdiction to jurisdiction, just as the exact legal terms of offences differ. It's up to US officials...working within US law plus internal regulations and guidelines... to decide whether an arrest or offence constitutes an impediment to US entry, not the applicant. US immigration law does not state that all criminal arrests and offences are a bar to entry. Some criminal arrests/offences may, some may not...and that's why the word is 'recommend' rather than 'must'.

>I'm still confused about why 'any arrest' would be a valid reason not to use a ESTA.

That's the official advice but each individual applicant must take responsibility for his/her own decision. The US (like any country) has the absolute right to set its own rules for entry and to give the official advice to applicants that it wishes. Arguing/discussing official terminology or phrasing here (or with US border/visa officers) is pointless: it is as it is.

The official recommendation is that anyone who has been arrested should apply for a visa. The Esta form refers to 'serious' crimes but gives no definition of serious. As an example: many people in the UK commit crimes they do not consider 'serious' e.g. minor benefit fraud, minor shoplifting offences....but both of these are actually CIMT. Border and visa officers need details of each arrest/conviction in order to determine whether they are CIMTs, hence the recommendation to apply for a visa.

Your situation is simple. If you're concerned about using an Esta in the light of your past arrest and your recent arrest with ongoing inquiries...and especially as your work requires you to visit the US...apply for a visa. If you're not, don't.

[ Edit: Edited on 14 Oct 2023, 08:15 GMT by leics2 ]

5. Posted by AndyF (Moderator 2909 posts) 19w Star this if you like it!

My take is that the advice and ESTA question wording are contradictory.

I agree that it makes sense to take the ESTA question at face value, and to use that justification if asked at interview on a subsequent occasion.

Surely if they want us to consider CIMT they should say so in the ESTA question. That is what someone will see when following the process. Going digging for what the local embassy says is more secondary.

I also think that of the two conflicting sources, I'd treat the US London embassy's guidance as the weaker one. I tend to think that some public sector numptie has caused this confusion with a poor choice of words. I wonder if there are any comparable situations we could look at, ESTA guidance from the US embassies in other countries?

6. Posted by Stratboi (Budding Member 3 posts) 19w Star this if you like it!

Thanks for the feedback and info, all very useful

7. Posted by leics2 (Travel Guru 6059 posts) 19w Star this if you like it!

> ESTA guidance from the US embassies in other countries?

That's the standard guidance given on all Esta-eligible US embassy websites. It's not UK-specific. Note the web address: it's not a specific UK embassy site, it's just the UK page of the US Embassy site.

>Surely if they want us to consider CIMT they should say so in the ESTA question

The earlier Esta applications did indeed contain that wording. They've tried to simplify the wording because 'moral turpitude' is a US-specific legal concept and wasn't understood by Esta applicants from other jurisdictions.

>I'd treat the US London embassy's guidance as the weaker one. I tend to think that some public sector numptie has caused this confusion with a poor choice of words.

Imo, the official advice trumps the wording on any form, not least because the Esta form has 'help' boxes to the side of questions plus an extensive 'help' section accessed via a link on the official Esta 'help' page (the CBP Information Center, sadly inaccessible at the time of writing this).

If an issue arises the chances of an ordinary person winning any argument about semantics with a border or visa officer are nil.....and the vast majority of people can't afford the fees charged by a specialist immigration lawyer to do the arguing.

[ Edit: Edited on 14 Oct 2023, 09:25 GMT by leics2 ]

8. Posted by DM1978 (Budding Member 3 posts) 18w Star this if you like it!

I’m hoping to travel to US at some point. Have a caution for shoplifting dating back 20 years and I don’t know what I need to do. Reading the question on the ESTA I said no about convictions as I felt this related to property as in physical buildings but now I’m doubting this. Got my ESTA approved but wonder if I need to go down route of a visa application now. Don’t want to hide anything, just want things done right so I have no issues getting in for my holiday and can stop worrying

9. Posted by leics2 (Travel Guru 6059 posts) 18w Star this if you like it!

DM1978:

When you accept a police caution you are legally admitting that you are guilty of the offence.

Intothesun is right that shoplifting can be considered a CIMT (crime involving moral turpitude) under US law. He/she is also correct that the offical US Embassy advice is:

>We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, have a criminal record..... attempt to travel visa free under the Visa Waiver Program.

https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

Visa Waiver Program = Esta.

Clearly the official expectation is that you should apply for a visa but only you can make the decision whether to do so or to travel on the Esta you already have.

If you decide to apply for a visa I urge you to do so as soon as you possibly can. Make the earliest interview appointment you can but keep checking for earlier ones: there are cancellations and I also strongly suspect appointments are released in batches.

[ Edit: Edited on 25 Oct 2023, 19:02 GMT by leics2 ]

10. Posted by leics2 (Travel Guru 6059 posts) 18w Star this if you like it!

Confusion over threads!

[ Edit: Edited on 25 Oct 2023, 19:03 GMT by leics2 ]