visas and the u.s

[bearyeah]

we are hoping to vist florida again this year and we are wanting my boyfriend to come with us. the problem is by boyfriend was arrested last year through mistaken identity and it was a wrongful arrest. He did not do anything wrong and does not have a criminal record and police know that it was their mistake. i have recently phoned the police station he was taken to and explained the situation to them and they said if he was released with no charge or convictions it will not show up on his records and there shouldnt be a problem. but we dont know wether to apply for a visa or not as we are scared of not being able to get through the american airport. PLEASE HELP!!

[ShirleyD]

If he was not charged, then I can't see there is a problem. That means you can honestly answer all the questions on the ESTA online visa waver form.

Welcome to the forum Laura

[Katys Grandad]

The problem is that both the ESTA application and the Visa waiver forms refer to "arrested or convicted" so you would have to answer 'YES'. This has been discussed many times on here and there doesn't seem to be any way around it. I'm sure the police advice is valid but they aren't experts on US Immigration procedures.

It does seem both unfair and illogical that 'Arrest' is treated in the same way as 'Convicted' but that's the way it is. Personally, I wouldn't risk giving a false answer even if in this case there seems to be no means whereby the authorities would be able to discover otherwise.

What you choose to do might be different!

[Tonish]

Agree with Katy's Grandad. If he applies for a visa you need to go for an interview and explain. You will be asked to bring proof of the details to the embassy for confirmation, which I assume you would be able to get from the police. There should be no reason why they would not give a visa, given the circumstances, but the alternative is to lie on the waiver and trust that US immigration can't punch his name into a computer and come up with "arrested".

I don't know if they can or not, but I wouldn't like to take the chance.

[Robert5988]

Here we go again!!

The Visa Waiver form specifically refers to crimes of Moral Turpitude.

The ESTA website FAQ refers you to the US Government website for the regulations for guidance - and in that case the OP's boyfriend is in the clear.

What the question on the ESTA form states is: <blockquote id="quote" class="ffs">quote:
" 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 entry to engage in criminal or immoral activities?"

quote:
--------------------------------------------------------------------------------
Crimes involving moral turpitude - Such offenses generally involve conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed to persons or society in general. There are factors, such as the age of the offender or the date of the offense, that may affect whether an offense will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act.

For further information refer to § 212(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2), § 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) and corresponding regulations in the Code of Federal Regulations
--------------------------------------------------------------------------------[/quote]That very clearly would mean that the OP's boyfriend could truthfully answer 'No'

Not often(ever?) that I disagree with Katy'sGrandad and Tonish but I do on this occasion.

This is discussed at length in this and other threads.

http://www.orlando-guide.info/forums/topic.asp?TOPIC_ID=42133&whichpage=1

[fanwar]

just to complicate matters even more i notice at the bottom of roberts quote it mentions the age of the offender and the time that has lapsed since the offence can have a bearing on wether it can be construed as moral turpitude or not. now clearly i am no lawyer but if for example you murdered someone wether it was 40 years ago or 4 weeks ago it must surely still count as a crime of moral turpitude.

to me this whole statement is a badly worded exercise in bottom covering that once you sign your vw paperwork should they decide to the usa can try and charge you with anything that will stick because they have written so in a ham fisted fashion that is hidden way down the terms and conditions of a governmental website.

being in a similar situation to the original poser i for one am starting to doubt the validity of any of these customs forms as nothing but a poor attempt at scare mongering which is only going to worry innocent tourists rather than the boogey men it is aimed at

we all have to make our own decisions and i would not advise any one to do anything unless their mind is at ease they are doing something right and just.

keep us updated how you get on i hope it works out for you and you have a great holiday

[Robert5988]

<blockquote id="quote" class="ffs">quote:just to complicate matters even more i notice at the bottom of roberts quote it mentions the age of the offender and the time that has lapsed since the offence can have a bearing on wether it can be construed as moral turpitude or not. now clearly i am no lawyer but if for example you murdered someone wether it was 40 years ago or 4 weeks ago it must surely still count as a crime of moral turpitude.[/quote]

The difficulty is that there is not a formal legal definition of 'moral turpitude'; and of course no crime of moral turpitude but involving moral turpitude.

If you 'Google' the term you will find lots of examples of offences that, by precedent, are considered to involve moral turpitude and others that are not.

In general terms it would appear that they are serious offences where there is an element of intent.

I think everyone agrees that the question, as worded, is a nonsense. Presumably the reason for putting it there in the first place is that you have done nothing wrong under US law by committing such an offence(outside the US) but you have committed an offence if you lie on that form.