OT: US Visa Waiver Program and Moral Turpitude
Feb 17, 2010, 5:49 pm
#1
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OT: US Visa Waiver Program and Moral Turpitude
You are all a knowledgeable bunch, and I was unsure where else it might be appropriate to post this topic. I have been asked for help from a friend, as I am half American. He will be traveling to the United States in the near future, but cannot travel under the Visa Waiver Program due to a criminal record.
The crime in question occurred while a student, and after consuming copious amounts of alcohol. To make a long story short, his inebriation lead him to believe a costly work of public art was actually a large piece of discarded furniture and/or garbage. He and a friend decided it might look nice in the hallway for a short while.
Unfortunately, the local government and police disagreed. The next morning they stormed into the house, found the artwork and placed my friend and his mate under arrest. Both were subsequently convicted of theft and destruction of property; however, neither received a sentence or punishment, merely a criminal record.
Now he must go for an interview in order to be able to receive a visa for travel to the USA. He will be traveling for only one week to New York, for tourist purposes as part of a group of medical students. His partner in crime, however, had a visa request denied for a longer stay of 8 months.
Definition of moral turpitude seems very hazy, with the US embassy in London employing what seems a blanket definition of any crime ever committed as defined by United States law. But a publication by the US State Department seems to make exceptions; however, not having a legal degree I am still a little lost. The document makes several statements regarding theft. On page 3:
It would seem, considering there was no "fraud" involved in the sense of making false representation or intent to defraud, the aforementioned crime may not be considered moral turpitude?
Further statements on page 4:
Again, at the time of the act one could argue there was no guilty knowledge; as I understand the circumstances of the crime, the lack of a sentence resulted from the "innocence" at the time the act was committed.
Can you guys help with this or provide insight? Any experience? Thanks!
The crime in question occurred while a student, and after consuming copious amounts of alcohol. To make a long story short, his inebriation lead him to believe a costly work of public art was actually a large piece of discarded furniture and/or garbage. He and a friend decided it might look nice in the hallway for a short while.
Unfortunately, the local government and police disagreed. The next morning they stormed into the house, found the artwork and placed my friend and his mate under arrest. Both were subsequently convicted of theft and destruction of property; however, neither received a sentence or punishment, merely a criminal record.
Now he must go for an interview in order to be able to receive a visa for travel to the USA. He will be traveling for only one week to New York, for tourist purposes as part of a group of medical students. His partner in crime, however, had a visa request denied for a longer stay of 8 months.
Definition of moral turpitude seems very hazy, with the US embassy in London employing what seems a blanket definition of any crime ever committed as defined by United States law. But a publication by the US State Department seems to make exceptions; however, not having a legal degree I am still a little lost. The document makes several statements regarding theft. On page 3:
Originally Posted by Department of State
Most crimes committed against property that involve moral turpitude include the element of fraud.
Further statements on page 4:
Originally Posted by Department of State
Crimes against property which do not fall within the definition of moral turpitude include:
- Damaging private property (where intent to damage not required);
- Possessing stolen property (if guilty knowledge is not essential);
- Damaging private property (where intent to damage not required);
- Possessing stolen property (if guilty knowledge is not essential);
Can you guys help with this or provide insight? Any experience? Thanks!
Feb 17, 2010, 6:24 pm
#2
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You are all a knowledgeable bunch, and I was unsure where else it might be appropriate to post this topic. I have been asked for help from a friend, as I am half American. He will be traveling to the United States in the near future, but cannot travel under the Visa Waiver Program due to a criminal record.
The crime in question occurred while a student, and after consuming copious amounts of alcohol. To make a long story short, his inebriation lead him to believe a costly work of public art was actually a large piece of discarded furniture and/or garbage. He and a friend decided it might look nice in the hallway for a short while.
Unfortunately, the local government and police disagreed. The next morning they stormed into the house, found the artwork and placed my friend and his mate under arrest. Both were subsequently convicted of theft and destruction of property; however, neither received a sentence or punishment, merely a criminal record.
Now he must go for an interview in order to be able to receive a visa for travel to the USA. He will be traveling for only one week to New York, for tourist purposes as part of a group of medical students. His partner in crime, however, had a visa request denied for a longer stay of 8 months.
Definition of moral turpitude seems very hazy, with the US embassy in London employing what seems a blanket definition of any crime ever committed as defined by United States law. But a publication by the US State Department seems to make exceptions; however, not having a legal degree I am still a little lost. The document makes several statements regarding theft. On page 3:
It would seem, considering there was no "fraud" involved in the sense of making false representation or intent to defraud, the aforementioned crime may not be considered moral turpitude?
Further statements on page 4:
Again, at the time of the act one could argue there was no guilty knowledge; as I understand the circumstances of the crime, the lack of a sentence resulted from the "innocence" at the time the act was committed.
Can you guys help with this or provide insight? Any experience? Thanks!
The crime in question occurred while a student, and after consuming copious amounts of alcohol. To make a long story short, his inebriation lead him to believe a costly work of public art was actually a large piece of discarded furniture and/or garbage. He and a friend decided it might look nice in the hallway for a short while.
Unfortunately, the local government and police disagreed. The next morning they stormed into the house, found the artwork and placed my friend and his mate under arrest. Both were subsequently convicted of theft and destruction of property; however, neither received a sentence or punishment, merely a criminal record.
Now he must go for an interview in order to be able to receive a visa for travel to the USA. He will be traveling for only one week to New York, for tourist purposes as part of a group of medical students. His partner in crime, however, had a visa request denied for a longer stay of 8 months.
Definition of moral turpitude seems very hazy, with the US embassy in London employing what seems a blanket definition of any crime ever committed as defined by United States law. But a publication by the US State Department seems to make exceptions; however, not having a legal degree I am still a little lost. The document makes several statements regarding theft. On page 3:
It would seem, considering there was no "fraud" involved in the sense of making false representation or intent to defraud, the aforementioned crime may not be considered moral turpitude?
Further statements on page 4:
Again, at the time of the act one could argue there was no guilty knowledge; as I understand the circumstances of the crime, the lack of a sentence resulted from the "innocence" at the time the act was committed.
Can you guys help with this or provide insight? Any experience? Thanks!
If he hasn't informed the US authorities of his conviction, how would they know that he committed a crime in the UK?
Probably the correct answer is that he should apply for a visa. I know what I would do based on the above.
Feb 17, 2010, 7:44 pm
#3
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Best apply for a visa with a criminal record of any kind - this is what the US embassy in London recommends.
Feb 17, 2010, 7:46 pm
#4
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Knowledge Share
Ha - this old chesnut. I imagine most of flyertalk have never been arrested or carried out moral turpitude!
Anyway as far as I know (from someone I spoke to at the foreign office) what this all comes down to is what information is shared between the UK and the US. The US wants you to think they have complete access, but in fact the UK only shares:
- major violent crime (guns / murders)
- drugs offences (supply)
- any terrorist activity
There was major debate and concerns about US data protection and their usage not meeting European requirements. Also the UK will not share information if the defendant has been rehabilitated (i.e. 5 / 10 years after offence) unless they are a threat to national security.
Hope this helps.
Anyway as far as I know (from someone I spoke to at the foreign office) what this all comes down to is what information is shared between the UK and the US. The US wants you to think they have complete access, but in fact the UK only shares:
- major violent crime (guns / murders)
- drugs offences (supply)
- any terrorist activity
There was major debate and concerns about US data protection and their usage not meeting European requirements. Also the UK will not share information if the defendant has been rehabilitated (i.e. 5 / 10 years after offence) unless they are a threat to national security.
Hope this helps.
Feb 17, 2010, 9:09 pm
#6
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First, the VWP asks a different question from the visa application. The VWP asks about crimes involving moral turpitude. The visa application asks about all crimes, regardless of whether they involve moral turpitude or not.
Some easy examples of crimes not involving moral turpitude: parking ticket; public drunkenness; speeding.
Regardless of whether or not your friend received a sentence, he was still convicted of the crimes of theft and destruction of property.
In the United States -- where our law is based on English law -- theft is a crime involving moral turpitude. Despite your friend's assertion that he was drunk and did not intend to commit theft, he was still convicted of theft. Theft involves the knowing taking of property that does not belong to the person doing the taking. Theft is a crime involving moral turpitude because the thief knowingly takes what is not his to take.
Unfortunately for your friend, the correct answer to the VWP question is "yes."
Now, based on what you've said I don't think your friend should be barred from entry to the US, but that, unfortunately, is up to the consular officer who will make the decision. The best thing for your friend to do is to acknowledge the conviction, admit what he did was wrong, and explain how he's learned from his mistake, and to convince the officer that it won't happen again. Making excuses to anyone involved with these sorts of decisions in the US (including consular officers) is not a good idea -- it just isn't received well.
Some easy examples of crimes not involving moral turpitude: parking ticket; public drunkenness; speeding.
Regardless of whether or not your friend received a sentence, he was still convicted of the crimes of theft and destruction of property.
In the United States -- where our law is based on English law -- theft is a crime involving moral turpitude. Despite your friend's assertion that he was drunk and did not intend to commit theft, he was still convicted of theft. Theft involves the knowing taking of property that does not belong to the person doing the taking. Theft is a crime involving moral turpitude because the thief knowingly takes what is not his to take.
Unfortunately for your friend, the correct answer to the VWP question is "yes."
Now, based on what you've said I don't think your friend should be barred from entry to the US, but that, unfortunately, is up to the consular officer who will make the decision. The best thing for your friend to do is to acknowledge the conviction, admit what he did was wrong, and explain how he's learned from his mistake, and to convince the officer that it won't happen again. Making excuses to anyone involved with these sorts of decisions in the US (including consular officers) is not a good idea -- it just isn't received well.
Feb 17, 2010, 9:34 pm
#7
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The state of mind of the crime makes no difference under U.S. immigration law. All that matters was that the person was convicted. As long as there was a conviction, they are ineligible.
They definitely should admit the Crime of Moral Turpitude and apply for a visa. There is a chance they could be denied as ineligible, but this ineligibility can be waived.
If they say no, and it is discovered, they can be found to have committed fraud and be denied a visa/admission with no chance for a waiver.
They definitely should admit the Crime of Moral Turpitude and apply for a visa. There is a chance they could be denied as ineligible, but this ineligibility can be waived.
If they say no, and it is discovered, they can be found to have committed fraud and be denied a visa/admission with no chance for a waiver.
Feb 18, 2010, 2:05 am
#8
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Just for the record...
The crime was not committed in the UK, but another EU country (I don't want to publish too many details). And he already has an interview scheduled; he is just nervous about it.
Feb 18, 2010, 2:08 am
#9
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I imagine the US authorities are not aware of his crime, except that he will inform them of his own free will. I bet he could get through immigration without a problem; I seriously doubt the CBP officer has direct access to Interpol or the EU country's (in question) criminal database. Especially as the crime was not violent or did not result any damage (in the end).
But he and I agree, it's not worth the risk (and humiliation) of being turned back at the border. In a few months it gets whipped from his record anyway, at which time he can travel without a problem.
Feb 18, 2010, 2:15 am
#10
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Give it a go and let us know how it went.
Feb 18, 2010, 2:18 am
#11
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First, the VWP asks a different question from the visa application. The VWP asks about crimes involving moral turpitude. The visa application asks about all crimes, regardless of whether they involve moral turpitude or not.
Some easy examples of crimes not involving moral turpitude: parking ticket; public drunkenness; speeding.
Regardless of whether or not your friend received a sentence, he was still convicted of the crimes of theft and destruction of property.
In the United States -- where our law is based on English law -- theft is a crime involving moral turpitude. Despite your friend's assertion that he was drunk and did not intend to commit theft, he was still convicted of theft. Theft involves the knowing taking of property that does not belong to the person doing the taking. Theft is a crime involving moral turpitude because the thief knowingly takes what is not his to take.
Unfortunately for your friend, the correct answer to the VWP question is "yes."
Now, based on what you've said I don't think your friend should be barred from entry to the US, but that, unfortunately, is up to the consular officer who will make the decision. The best thing for your friend to do is to acknowledge the conviction, admit what he did was wrong, and explain how he's learned from his mistake, and to convince the officer that it won't happen again. Making excuses to anyone involved with these sorts of decisions in the US (including consular officers) is not a good idea -- it just isn't received well.
Some easy examples of crimes not involving moral turpitude: parking ticket; public drunkenness; speeding.
Regardless of whether or not your friend received a sentence, he was still convicted of the crimes of theft and destruction of property.
In the United States -- where our law is based on English law -- theft is a crime involving moral turpitude. Despite your friend's assertion that he was drunk and did not intend to commit theft, he was still convicted of theft. Theft involves the knowing taking of property that does not belong to the person doing the taking. Theft is a crime involving moral turpitude because the thief knowingly takes what is not his to take.
Unfortunately for your friend, the correct answer to the VWP question is "yes."
Now, based on what you've said I don't think your friend should be barred from entry to the US, but that, unfortunately, is up to the consular officer who will make the decision. The best thing for your friend to do is to acknowledge the conviction, admit what he did was wrong, and explain how he's learned from his mistake, and to convince the officer that it won't happen again. Making excuses to anyone involved with these sorts of decisions in the US (including consular officers) is not a good idea -- it just isn't received well.
Feb 18, 2010, 2:27 am
#12
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If it was me I would wait till this happens, to reduce the risk of a problem as low as possible. Whereas if it goes badly now, then his record would be marked forever.
Feb 18, 2010, 2:41 am
#13
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If he's travelled on the VWP before he is probably in trouble. While they may accept the 'juvenile prank' defence for the original circumstance they take a very dim view of previous incursions into the land of life, liberty and happy meals under false pretences.
If he does go to the Embassy I'll PM you my tailor's address; the govt-supplied orange jump suits tend to chafe around the knackers, especially if your friend is tall....
If he does go to the Embassy I'll PM you my tailor's address; the govt-supplied orange jump suits tend to chafe around the knackers, especially if your friend is tall....
Feb 18, 2010, 2:58 am
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Feb 18, 2010, 3:34 am
#15
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I thought it was an absolute: anybody who has ever been arrested, whether found guilty or case dismissed, is ineligible for entry under the VWP and needs a visa.
'Moral turpitude' is one of those expressions clear to Americans but a source of mystery to most Brits as it is not part of our penal code. It's one of the seemingly absurd questions (axis powers between 1939 and 1945, anyone?) which if incorrectly answered can mean instant deportation without appeal should the person be found out while in the US.
I wouldn't chance it. Either apply for the visa or forget about visiting the US.
'Moral turpitude' is one of those expressions clear to Americans but a source of mystery to most Brits as it is not part of our penal code. It's one of the seemingly absurd questions (axis powers between 1939 and 1945, anyone?) which if incorrectly answered can mean instant deportation without appeal should the person be found out while in the US.
I wouldn't chance it. Either apply for the visa or forget about visiting the US.