Fri, 29 Jan 2010

Innocent in the UK, unwelcomed in the USA

If you are an innocent who happened to have been arrested in England or Wales, you're unlikely to be able to go to the United States of America, ever again. Retention of DNA is not the only long term effect of an arrest. Having been arrested also disqualifies one from the Visa Waiver Program (VWP). The alternative is attempting to obtain a visa to enter the USA, a long and costly process with an uncertain outcome.

Not being able to travel to the USA may, of course, affect job prospects. There's very little chance of redress about this consequence of an arrest as responsibility is shared by the English police force that made the arrest, Parliament that passed the laws giving police the powers to do the arrest (if the arrest was lawful), and the U.S. Department of State who is responsible for visa rules for travel to the USA.

The practicalities of attempting to travel to the USA from the UK is described on the website of the London Embassy in the Additional Administrative Processing : Criminal Convictions page of its Nonimmigrant Visas section:

Under United States visa law, people who have been arrested at anytime are required to declare the arrest when applying for a visa. If the arrest resulted in a conviction, the individual may be permanently ineligible to receive a visa. In order to travel, a waiver of the permanent ineligibility is required. The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travelers with a spent conviction are required to declare the arrest and/or conviction. [emphasis added]

The introductory sentence in the paragraph above, the first paragraph on the page, clearly shows the need for arrestees to apply for a visa. An initial essential step, for those willing to start this quest, is to obtain and 'furnish a police certificate from the Association of Chief Police Officers (ACPO) issued within 6 months of the date of the visa interview.' Until a few years ago, one was required to get a copy of his or her Police National Computer (PNC) record by submitting a data subject access request to the National Identification Service at New Scotland Yard. In 2008, this changed and one must now obtain a certificate from the ACPO Records Office. You can read more about this change in the post ACPO police certificates coming out of nowhere required for those going somewhere.

Another requirement, before being able to schedule an appointment with a U.S. consular officer, is to fill in the Nonimmigrant Visa Application form (DS156). Box 38 on this form is upfront about the limited chance of getting a visa:

A visa may not be issued to persons who are within specific categories defined by law as inadmissible to the United States (except when a waiver is obtained in advance). Is any of the following applicable to you?
  • Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?
Yes No
  • Have you ever been refused admission to the U.S., or been the subject of a deportation hearing or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a U.S. public elementary school on student (F) status or a public secondary school after November 30, 1996 without reimbursing the school?
Yes No
  • Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose? Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State? Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide?
Yes No
  • Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?
Yes No
  • Have you ever withheld custody of a U.S. citizen child outside the United States from a person granted legal custody by a U.S. court, voted in the United States in violation of any law or regulation, or renounced U.S. citizenship for the purpose of avoiding taxation?
Yes No
  • Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug abuser or addict?
Yes No
While a YES answer does not automatically signify ineligibility for a visa, if you answered YES you may be required to personally appear before a consular officer.

[emphasis added]

The Nonimmigrant Visas section page quoted earlier clarifies that 'may be required' should be read 'you are required':

Applying for the visa

You are required to schedule an appointment for an interview with a U.S. Consular Officer.

For those innocents unfortunate enough not only to have been arrested, but also to be male aged 16 to 45, the next hurdle is mastering their powers of recollection as they need to fill in the Supplemental Nonimmigrant Visa Application Form DS-157. This form includes questions such as 'List All Countries You have Entered in the Last Ten Years (Give the Year of Each Visit)', 'List all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)' and 'List all educational institutions you attend or have attended. Include vocational institutions but not elementary schools.'

Once the police certificate is obtained (and paid for), all the forms completed, and a mugshot is in hand, it's time to pay the visa application fee and schedule an appointment. The timer for how long it takes to go through the whole process – whatever the outcome – starts at this stage. Processing of the visa application when box 38 is ticked is much longer. Detailed information about processing time is no longer published, but here's an excerpt from a page from the US Embassy website as it was in 2006:

Routine visa applications take approximately 5 workdays to process from the date of the visa interview. [...] Applicants who are advised at the visa interview that their application requires additional administrative processing should allow at least 60 days for this stage of the application to be completed. Applicants who tick yes to box 38 can expect to wait a minimum of 14 to 16 weeks before being advised of the outcome of their application. [emphasis added]

Current information on visa waiting time doesn't include any specific information for those who ticked yes in box 38, but has this vaguer note:

Typical Wait Time (Workdays**) for a Nonimmigrant Visa To Be Processed****: 4 Days [...]

****IMPORTANT NOTE: Processing wait time DOES NOT include the time required for administrative processing. These procedures require additional time. Most administrative processing is resolved within 60 days of application. When administrative processing is required, the timing will vary based on individual circumstances of each case. Therefore, before making inquiries about status of administrative processing, applicants or their representatives will need to wait at least 90 days from the date of interview or submission of supplemental documents, whichever is later. Processing wait time also does not include the time required to return the passport to applicants, by either courier services or the local mail system.

Fourteen weeks being 98 days, arrestees applying for a visa still likely have to wait 14 to 16 weeks. There's no guarantee that after all this time, a visa will be issued. The wording on the embassy's website strongly suggests that if you've been arrested, while you're welcome to apply for a visa, you're unlikely to be eligible.

Arrestees not only have to spend time but money as well, for the police certificate, for the non returnable fee to apply for the visa, the additional issuance fee in the eventuality of the visa being granted and for calling the US embassy (the only published phone number is a premium number). For someone who has been arrested the visa application process is complex and lengthy with at best a very uncertain outcome. An innocent who has never arrested benefits from the Visa Waiver Program while someone arrested but not convicted or for whom there was no further action has to answer yes to box 38 and face not being able to travel to the USA.

For those who went on the four or five months US visa quest and are among the lucky few found not to be ineligible, this is still not a guarantee of being admitted in the USA:

A visa is issued by a U.S. Embassy or Consulate. A visa entitles the holder to travel to the United States and apply for admission; it does not guarantee entry.
An immigration inspector at the port of entry determines the visa holder's eligibility for admission into the United States. [emphasis in the original]

While visas are issued by the US Embassies, admission into the US is administered by the Customs and Border Protection (CBP):

Also, If you are an alien, CBP Officers may decide that you should not be permitted to enter the United States. There are many reasons why this might happen (see INA § 212(a)). You will either be placed in detention, or temporarily held until return flight arrangements can be made. If you have a visa, it may be cancelled. [emphasis added]

For an innocent who's been arrested, following the legit option guarantees five months of nightmares, with a likelihood of not being allowed in the USA anyway. This has been an incentive for those who've been arrested – whether innocent or convicted – to forget their arrest, travel on the Visa Waiver Program, and lie when asked about any prior arrest. As CBP officers do not have access to the UK Police National Computer, many have travelled illegally without problem. However those tempted by this illegal route should bear in mind that it is possible that the USA compiles a database of public mentions of arrests and convictions from the press and/or court proceedings. It has also been reported for immigration officers to Google the name of travellers at the border, finding incriminating information against them and deciding to refuse them entry to the USA (read the stories of Andrew Feldmar and Hossein Derakshan for instance).

Home Office Minister Alan Campbell sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. The latter category is victim of extra-judicial punishments – e.g., DNA retention and disqualification from the VWP – affecting their privacy, and their job and travel prospects. The Home Office and U.S. Department of State's rejection of the presumption of innocence is making the cost of an arrest, lawful or not, very high for innocent people.

First published on 2010-01-29; last updated on 2014-08-25 to fix some broken links.

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