VISA WAIVER PROGRAM TO USA.
Discuss VISA WAIVER PROGRAM TO USA, on the Immigration & Customs forum of FrequentFlyer.com.au, the home of frequent flyers.
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Can someone please assist with this question. My friend's 23 year old son is getting married in May 06, and has booked an around the world honeymoon with his last stop being from FRA via JFK to LAX, then Hawaii for a few days before returning to Sydney. All up, about 5 weeks.
About four years ago, after a couple of drinks and on his way home, he took a forklift (which he didn't own) for a drive around the footpath and struck a wall causing minor damage. However, as there was damage of about $600 to the wall the the machine he was charged with stealing a motor vehicle in lieu of illegally use a motor vehicle. Due to the minor nature of the incident, when he went to court the offence was 'proved' but the magistrate did not record a conviction and he was placed on a 6 month bond.
Now the problem starts. As he was arrested, (not convicted), he did the right thing as per the Visa Waiver procedures and applied for a visa to enter USA. However, when he went to the Sydney office of the American Consulate today they refused him a visa citing that he had been charged with an offense of "Moral Turpitude", which I thought only involved someone throwing a phone in a hotel, anyway..
Does anyone know what can be done now, what his rights of appeal are, or even if he has any rights in that regard. I suggested he could always travel via Toronto, then Vancouver and spend some time in the rockies, but he wants to do the American thing. Any advice please would be greatly appreciated.
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One could argue that he was admitting to moral turpitude based on his application since the I94W asks
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 to engage in criminal or immoral activities YES/NO
If it wasn't a moral turpitude offence there would be no need to apply for a visa and could have just entered under the VWP
Doing a look into Moral Turpitude (from the Handbook of Criminal Evidence by Davis ) it does say ( for Georgia)
It has been held that the following offenses are crimes involving moral turpitude:
• Fraud or false pretenses in obtaining something of value
• Larceny or a misdemeanor theft by taking
• Larceny after trust
• Murder
• Soliciting for prostitutes
• Voluntary manslaughter
• Sale of narcotics or other illegal drugs
• Pattern of failure to file federal tax returns in years in which taxes are due
• Criminal Issuance of a bad check
• Making a false report of a crime
it would seem that the offense in case does relate to moral turpitude
It is possible to appeal against a refusal for a US visa and if he wishes to do so , perhaps phone the Embassy and ask about the process. If that appeal fails , then that's really it for now. Given that the offense was only 4 years ago, I wouldn't bet on success
Thanks Dave for your reply. I don't know whether he has made an error by applying for the visa or whether he could have just taken the (huge) risk, but in saying that he is a great kid and he simply wants to do the right thing.
The I94W form does ask if you have ever been arrested or convicted for an offense or crime involving moral turpitude or a violation etc etc, but when you read the conditions under which a waiver can be applied to an Aussie travelling to USA it states that, and I quote, you must apply for a visa if you have 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?
The key word is arrested "OR" convicted, and not arrested AND convicted. I can't find any info on if there is an avenue of appeal or whether the US Consulate decision is final.
The I94W form does ask if you have ever been arrested or convicted for an offense or crime involving moral turpitude or a violation etc etc, but when you read the conditions under which a waiver can be applied to an Aussie travelling to USA it states that, and I quote, you must apply for a visa if you have 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?
I was only going from the I94-W form and I was under the impression that the only need for applying for a visa if you have a YES answe
The question asks separate points
Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance;
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 to engage in criminal or immoral activities
To me, that reads that unless the crime is of moral turpitude , drugs or that there were 2 or more offenses with sentence > 5 years
Hey ho, if there is another document detailing this in greater detail, c'est la vie
My advice would be to involve a US immigration lawyer at an early stage. Although it will cost $$$$ the consequences of a declined visa application will follow this guy for life, if he ever intends to travel to the US.
An I94W, is issued on the plane entering the US, so if he had some issue, then it could have been investigated on entering the US. But then again, it would only have been because he ticked a box and not from INS datamatching.
The bigger problem I think, is he has submitted a DS-156, application for Non-Immigrant Visa and has been declined. Now if he tries to enter the US, without a Visa, he will be pinged. (This will be DataMatched, for sure)
Where to go from here?
I would be seeing a lawyer to construct a letter saying that
the DS-156 was submitted in error, as the arrest doesn't constitute "moral turpitude" in the context of which INS state and giving details.
"false pretenses in obtaining something of value" explaining that there was no intent of keeping the folk lift for monetary value, as it was stupid drunken teenage episode.
(With lots of Blah, Blah and legal jargon) and sending that to US Consulate in Sydney. And waiting for a response.
I'm not sure what else he could do. :?
The assumption is he will never be allowed to enter the US, especially with a rejected Visa application and a "moral turpitude" arrest as it sits now on the application.
Its a pity you didn't post this last week. Us Aussies here in Atlanta had our Australia Day party at Richard Pratt's house, where I was speaking to the Consular General for SE US. Could have asked her what to do
Anyway.... Keep us informed, what happens...
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The lesson here for other forklift joy riders wishing to enter the USA is dementia.
I have a friend of a friend who has forgotten his previous forklift joy ride, hijacking, bank robbery, attempts to overthrow a foreign government, etc. when entering the USA.
He has had no problems entering on every occasion.
And I have always forgotten to tick yes to the question "are you a terrorist" which from memory appears on the form LOL, seriously I would love to know if anyone has ticked yes!
That document seems to imply that Joy Riding is not a moral turpitude type offence.
I also agree with robertz. I think a letter from a lawyer (preferably one who knows all about US Immigration laws) and some kind of appeal would be the only option. Suggest like others asking the Embassy what appeal processes exist before seeing the lawyer.
That document seems to imply that Joy Riding is not a moral turpitude type offence.
I also agree with robertz. I think a letter from a lawyer (preferably one who knows all about US Immigration laws) and some kind of appeal would be the only option. Suggest like others asking the Embassy what appeal processes exist before seeing the lawyer.
Except that he was charged and, effectively convicted, with stealing a motor vehicle which is a different offence. Stealing is a moral turpitude offense
I would go with checking what the appeals process is ( if there is one for a tourist non-immigrant visa refusal ) and, if going to the USA is that important, get legal advice
tbh, unless there is a procedural error, I would be surprised if an appeal made a difference
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