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Guillermo Senmartin
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 108034
Experience:  Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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My adult (33 year old) son booked a 2 week holiday several

Resolved Question:

My adult (33 year old) son booked a 2 week holiday several months ago to Las Vegas, with 2 companions. He has a conviction (2010) in Scottish Courts having pleaded guilty to "domestic violence" for which he was admonished. We were aware of the ESTA visa waiver requirements and completed the form on line, answering "no" to question 2 re. convictions and "moral turpitude". Having read the question very carefully we were satisfied that the question was answered honestly and correctly, and on the basis of information in the US Gov website decided that his offence was not "moral turpitude" from the examples given. THe Visa waiver was granted on line without question. As a result of recent reports in the press and on radio, we looked further into this and find on the US Embassy website the direction that if you have been arrested you are ineligible for the visa waiver scheme!! This at variance with ESTA Q2 which now appears ambiguous.

He now finds himself in the position that he has insufficient time to arrange interview, etc., in London prior to the date of travel 1st May 2014.

I would be pleased to have your opinion on the current situation of no visa, and the risk of travelling to the US and being refused entry. Everything my son has done has been honestly and in good faith, in accordance with the questions on the ESTA application form.
Submitted: 3 years ago.
Category: US Law
Expert:  Guillermo Senmartin replied 3 years ago.

Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one. Also, we have been having technical issues lately. If you respond and you do not see your response, please post again until you can see it because if you cannot see it, I cannot see it to respond.

 

 

 

Just to make sure that we are on the same page, the question that your son answered no to was the following?:

 

 

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

 

 

If this is the question that he answered "no" to, I'm not sure how he could have interpreted any other way that to put "yes".

 

 

And you may want to look at this link, especially on page 7:

 

http://www.state.gov/documents/organization/86942.pdf

 

 

I will await your response and we can go over what could happen at the Port of Entry and what his options are.

 

Expert:  Guillermo Senmartin replied 3 years ago.

Hello. I hope you aren't having techincal difficulties that you have viewed my response and have not responded to me and I hope I did not offend you with my response. That was not my intention. Believe me, I am on your side and want to help, but the immigration officer that deals with your son will not be on his side and will not want to help your son. So what I explain now is for his benefit, to keep him out of trouble.

 

 

 

Ok. The problem is that the ESTA is supposed to be a way for persons that have really no issues to be able to easily enter the U.S. The U.S. should send people to that link that I gave you so that they understand what a CIMT is. It would keep people out of a good deal of trouble. Unfortunately, they do not, but that won’t really help your son much. While it may be possible for him to get a B-2 tourist visa, depending on whether or not an “admonishment” is or is not considered a conviction under U.S. immigration law, he is ineligible for an ESTA. So let’s go over what could happen at the Port of Entry.

 

 

There is a small possibility that they not see the arrest and nothing happens to him and he is let into the U.S. I highly doubt this will happen because after 9/11, our governments are very good about sharing such information. More than likely, one of the following could and probably would happen:

 

 

1) They will allow him to withdraw his request to enter the U.S. and he can go home, no penalty. (Not likely)

 

 

2) They will not allow him to withdraw his request to enter the U.S. and will order him excluded. This has a 5 year penalty that he cannot come back unless he gets a very hard to get waiver. (Also not likely, but more likely than #1)

 

 

3) They will not allow him to withdraw his request to enter the U.S. and they catch him in a lie and they exclude him with a permanent bar due to fraud and/or misrepresentation and with that charge he cannot come back unless he gets a very hard to get waiver. (Most likely, the “lie” or “misrepresentation” being his answer to that previous question)

 

 

So what should he do at this point? He’s probably going to have to forget about his trip, unfortunately, and but he should still apply immediately for a B-2 visa. Why? Because if he doesn’t use the ESTA and applies immediately for a B-2, he may be more convincing to an immigration officer that his response to that question was simply a misinterpretation and not an intentional misrepresentation. If he can convince an immigration officer of that, then he may be able to get a B-2 with no issues if he otherwise can qualify. If he cannot convince the immigration officer, not all is lost. At that point, he would need a 212(d)(3) waiver which can either be done by the immigration officer at the interview or after just on their computer (take a look at this link):

 

 

http://www.state.gov/documents/organization/87150.pdf

 

 

 

or on form I-192 which can be found at www.uscis.gov/forms. You can find more information here:

 

 

 

 

http://www.ilw.com/articles/2003,0930-labrie.shtm

 

 

 

If he wants to try to expedite the B-2 to see if he can still make his trip, here is a link with information in that regard:

 

 

http://www.uscis.gov/forms/expedite-criteria

 

 

 

I am truly sorry for the bad news but I ask you to understand a few things at this point. First, I am not given a salary to respond to your queries. I am only compensated if you rate me positively. Second, most people when they hear bad news want to blame the messenger. Please do not shoot the messenger. Third, I have given you a lengthy explanation, backed it up with official U.S. government links and other non-government articles, given you an idea of what could happen, what would most likely happen, and how to go about resolving the issue. That your son may be out of time to go on his trip is an element that I have no control over, but I also provided you with information on how to at least try to expedite the case. Please let me know if you have additional questions and please do not forget to rate my service to you positively (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

 

Customer: replied 3 years ago.


Our latest emails crossed. I note your comments which are very helpful, but I would like to have your final words regarding the possible ambiguity of Q2, which has been reported here in the media and which raised this issue. There is no question of deliberate misrepresentation on our part.


 


Regards

Expert:  Guillermo Senmartin replied 3 years ago.

Ok, but what does your son plan to do? Take his chances and try to enter the U.S. on the ESTA and then if they stop him, try to explain that the ambiguity of that question threw him off? I just don't understand how he plans to convince an immigration officer of that when it clearly says "arrested OR convicted". If it says "arrested AND convicted", then maybe, but it says "or".

Customer: replied 3 years ago.

The "missing" email (or the jist of it)


 


Q2


 


The lack of punctuation (no comma after "arrested") in line 1 causes me a problem. If there is a comma then Q2 demands a "yes" answer without question, but there is not. The 5 reasons demanding a "yes" answer are very specific,


 


"arrested or convicted for"


1 an offence or crime involving moral turpitude


2 a violation related to a controlled substance


3 two or more offences....aggregate sentence...5 years or more.


4 been controlled substance trafficker


5 or seeking entry to engage in criminal or immoral activities


 


- no more and no less of these areas of the law. 2 to 5 are not relevant in this case.


 


"1" requires the offence to amount to moral turpitude. The offence (domestic assault) admitted to and "admonished" in the Scottish Courts remains a crime but "admonishment" is the lowest penalty, a verbal warning. Domestic Assault is not deemed to be "moral turpitude" which is a prerequisite to a Q2 "yes" answer. Only the scenarios1 - 5 have to be considered under Q2, not any arrest or conviction.


 


For example, it is a crime in this country to run over a dog and not report it. This could lead to an arrest but surely would demand a "yes" answer, a visit to London (500 miles) and an interview in the American Embassy? Surely, only arrests within the parameters of Q2 require to be admitted.


 


Therefore, in this case the honest answer given to Q2 was "no", the arrest or offence not amounting to "moral turpitude". It is my view that the answer to Q2 hinges around the definition of "moral turpitude", which I understand does not include simple assault of the level admitted, not "or" / "and", and the other crimes listed.


 


Regards


 


 


 

Expert:  Guillermo Senmartin replied 3 years ago.

Unfortunately, you are really stretching. The tenants of statutory interpretation do take into consideration punctuation, but here the word “or” is all that is needed. It is quite clear that he was arrested. There is no doubt about that and that’s what you have to focus on. Also, according to the Foreign Affairs Manual that I sent you, while simple assault is not a CIMT, any assault against anyone in a domestic relationship is a CIMT. So I disagree that a domestic assault is not moral turpitude.

Again, I am on your side, but you aren’t even convincing me. Do you really think your son will be able to convince an immigration officer at the Port of Entry in the few minutes that he will have? Probably not. Then they will detain him and place him in secondary inspection where he will have more time to explain. At best, let’s say they believe him, they still aren’t going to let him in because he simply cannot qualify for the ESTA. So they believe him, they believe that he made a mistake, the fact remains he was arrested, it is considered a CIMT, and anyone arrested for a CIMT is no eligible for an ESTA. It doesn’t mean he is not eligible for a B-2 tourist visa, he is, but he really needs to not take the risk that they do not believe he made a mistake in filling out the ESTA application. They probably will not believe it. And if they do not believe it, then he creates a permanent bar.

So my original advice is sound, have him immediately apply for a B-2 tourist visa, there he can explain the situation, there he would have a better chance that they believe him because he didn’t try to use the ESTA. If they do not believe him, he can still try for the 212(d)(3) waiver. Again, I am truly sorry, but if you want to make sure that your son has the best chance and doesn’t screw up future possibilities to travel to the U.S., it’s really the best option to take.



Please do not forget to rate me positively. As I do not receive a salary, it is the only way that I get credit for my service to you. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Customer: replied 3 years ago.

I appreciate your comments, you are the US immigration expert. I need time to read the papers you have directed me to. I have, however, come across several articles clearly stating that simple assaults (not involving dangerous weapons or evil intent) do not involve moral turpitude, including the US Department of Homeland website stating that a criminal offence has to have been committed (possibly incorrect??) Confusion reigns!! I will revert to you when I have read more.

Expert:  Guillermo Senmartin replied 3 years ago.
Simple assault does not constitute a CIMT, correct, but you seem to keep overlooking one very important element that makes it a CIMT. This probably wasn't just a bar fight that he assaulted a stranger, was it? Who did he assault?
Expert:  Guillermo Senmartin replied 3 years ago.
Hello Douglas. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!
Customer: replied 3 years ago.

Sorry for the delay in replying. Your answers have been helpful and directed me where to look for more information on CIMT. Better if it had been a bar fight!!


 


The circumstances are:-


 


My son was threatened with a kitchen knife by his fiancee 4 years ago (at that time, now apart), and he defended himself possibly more vigourously than necessary, resulting in a minor injury, nothing permanent. Her police officer friend involved herself and charges were pressed despite the fiancee withdrawing the complaint. My son, on legal advice pleaded guilty to "domestic violence" which was accepted by the court and the sentence was "admonishment". In Scots law, the offence still recorded, although the penalty was just a verbal warning, as he was technically guilty of the offence. "Admonished" clearly defined in Scots Law, and can be compared to an "absolute discharge" in other legal jurisdictions, including England and Canada. It is usually the result of the strict application of the law where no real wrong has been caused.


 


My final question. How does that fit with US CIMT ??


 


Regards,


 


Douglas

Expert:  Guillermo Senmartin replied 3 years ago.
It is an ARREST for a CIMT because of the domestic element. So let me be clear about this, because it was an arrest, and because it was an assault, simple or otherwise, against someone in a domestic relationship with him, it is an arrest for a CIMT and it makes him ineligible for the ESTA. However, because it was an admonishment, I do not believe it is a conviction for U.S. immigration purposes. This means that while he is ineligible for an ESTA, he should be eligible for a B-2 tourist visa without the need of a waiver. But you REALLY need to get him to apply for the B-2 NOW because you do not want the U.S. thinking that he lied on that question for the ESTA. I hope this helps, but please do not forget to rate me positively so that I can get credit for my assistance to you. You are not charged again and we can continue to communicate without additional charge if you have a few follow-up questions. Thank you!
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 108034
Experience: Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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