Going To America With A Vandalism Charge

[Gherkins]

I have an offence for vandalism section 52. My Daughter is wanting to take me on holiday to America. I was wondering if I will be allowed entry considering that I have very recently been charged.

[Buenchico]

Let's start at the beginning: You're not eligible to travel visa-free (i.e. using an 'ESTA'). So we need to examine your chances of being granted a visa:

Depending upon how the US authorities see it, the equivalent of Scotland's 'Section 52' charge of 'vandalism' might EITHER be classed as 'damaging private property' or 'malicious destruction of property'.

To be classed as the former there would have to be no 'intent to damage'. In that case the offence would be seen as NOT one involving 'moral turpitude'.

However if the charge was regarded as the equivalent of 'malicious destruction of property' then it WOULD be classed as 'moral turpitude'.

If no moral turpitude is involved in an offence then it's a discretionary matter for the US authorities when considering whether to grant a visa or not. You'd need to apply to the US Embassy and then wait a few months for a decision. (Note that the application process is far from straightforward. It includes a requirement to get a police certificate and to personally attend the Embassy for an interview).

However if the offence is viewed as being one involving moral turpitude the Embasy staff have NO discretion in the matter whatsoever. The US Immigration and Nationality Act states that anyone convicted of such an offence is banned for life from entering the USA, meaning that the Embassy MUST refuse to issue a visa. However that's not the end of the matter because it's then possible to apply for a Waiver of Inadmissibility. Such an application has to be referred to Washington and takes many months to be processed. If a waiver is granted the Embassy then reacquires the discretion to issue a visa.

http://www.cba.org/cba/cle/pdf/imm06_chang_app1.pdf

If you applied now for a visa, and your offence was seen as NOT involving 'moral turpitude', you'd probably find out whether or not it had been granted by the summer. However, unless your daughter is prepared to pay the high prices required for last-minute flight bookings, that would probably be too late to book for this year (unless you travelled in the autumn or winter months).

If you applied now, and your offence was regarded as involving 'moral turpitude' then you probably wouldn't get a decision until well into next year. So any holiday, if it turned out to be possible at all, probably couldn't be booked before the autumn of next year.

Someone posted on AB to say that their husband had two convictions for driving without insurance, which the US authorities classed as 'moral turpitude'. He had to go through the long-winded process of first applying for a visa and then applying for a waiver. In total he had to wait 15 months, before being told that his application had been refused.

I think it might be simplest to suggest an alternative destination to your daughter!

[Gherkins]

Thank you very much for the lengthy reply Buenchico. You have put a lot nicely into perspective. I think at my right old age I shall give it a miss. I have been to the USA a few times in the past.

[Peter Pedant]

erm this is very full and usedful post is about convictions innit ?

and here we have the advice from the Embassy of the Land of the Free
https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

which in short says yes ( as in no visa)

"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, certain serious communicable illness, "

I am not sure what access the Feds have to the UK police data bases.....

[nailit]

I knew someone who went to America for his honeymoon a few years ago. He had served time in prison for drug dealing offences. He simply didn't declare it.

[Gherkins]

Not declaring my charges is a path I would not like to stroll down. If I have learned anything in life, it is that honesty will get you further than bending the truth.

[Peter Pedant]

John Lennon got around it - he had a drugs conviction - and a lot of money.

They certainly lose their sense of hunour if you are found out whilst erm in situ. It is a federal offense ( = v v bad) to lie on an immigration document innit ?