The way in which US immigration law deals with criminal matters for the purpose of determining the non-American citizen's acceptance of the United States is complicated. It is worth noting that travelers from the UK are often surprised that a British police warning or official warning, as there has been no court or judge interference and no formal criminal charges, can make them "unacceptable" to the United States. For any reason.
Their astonishment stems not only from the intricate intersection of the Criminal Immigration Act and the U.S. Immigration Act, but also from the fact that the US State Department was not consistent in the way it handles UK warnings / warnings, as it adopted a new approach until 2014. The recent 2014 policy may mean , Shown below, that non-United States citizens who warn of the United Kingdom and who were previously traveling to the United States without a problem may now be prevented from the United States, unless they qualify for an exemption or waiver of inadmissibility.
Below is a brief summary of the current status of warnings / warnings for the UK police and US immigration law. The article explains that a prudent approach would be to treat all official police warnings and warnings in the United Kingdom as "acceptance" for purposes of determining criminal inadmissibility, unless there is evidence to demonstrate that consent has not been obtained according to prior United States legal oversight.
I. Overview of criminal inadmissibility under the Immigration and Nationality Act, paragraph 212 (a) (2)
An alien is unacceptable to the United States for committing a “crime involving moral harm” (CIMT) or a crime involving a controlled substance, including an attempt or conspiracy to commit them, if (1) the individual is convicted of this crime; or (2) the individual who confessed to committing this The crime, or admitted its essential elements.
Moreover, (3) if the U.S. immigration official just has reason to believe that the alien was or was involved in trafficking in a controlled substance (for example, intent to sell), the alien could become unacceptable under Article 212 of the Immigration and Nationality Act. (2) (c) (1), although the alien has not been convicted (for example, acquitted) of the crime and has not been admitted to have committed it or essential factual elements.
Finding criminal inadmissibility is not the end of the road. Once the individual is deemed unacceptable, he or she must, through a legal advisor, pursue any valid exemption or waive the unacceptability of the type of US visa required.
II. United Kingdom specific warnings / warnings
Here are three actions outside the UK that are particularly relevant to US immigration law:
1) A simple police warning. A simple caution is a formal notification from a police officer that a person has committed a crime. Under the current policy, a person will usually be photographed and photographed. Police are more likely to provide caution if it is a minor crime and usually there is no other criminal history. The police may not issue a simple warning unless the person confesses to the crime and agrees to be careful. If the person refuses to be careful (for example, denies the crime), then formal criminal charges are brought against the individual.
B) Police police caution. Police police warning is the same simple caution in all respects, including acceptance of the crime, except for the individual subject to certain conditions. Failure to comply with the conditions will result in formal criminal charges against the individual.
(3) Cannabis Warnings. The cannabis warning is not a warning, but an oral warning by a police officer of a first time perpetrator who has a small amount of cannabis for personal use. The police cannot give a formal verbal warning unless a person recognizes the ownership of cannabis. The police officer will record that the individual has confessed to possessing cannabis and will be required to sign this record. Warnings will appear on the ACRO report and will need to be addressed for U.S. immigration purposes.
The constant in all UK actions outside the court is that the individual must “confess” to the crime. As shown below, whether admission under UK law qualifies for admission under US immigration law requires a case-by-case analysis.
III. Warnings / warnings UK is not a "convictions"
"Condemnation" for US immigration purposes requires (1) the official judgment of guilt issued by the court; (2) or if the ruling is withheld: a guilty verdict from a judge or a jury, an admission of guilt or a Nolo inconsistent with the alien, or the acceptance of facts from the alien sufficiently To prove his guilt; or (3) the imposition of some form of punishment by the judge.
Based on this definition, British police warnings or warnings are not condemned for US immigration purposes. On April 9, 2014, the U.S. Department of State visa office approved. The reason is that there is no formal court or judicial process. However, as explained below, the absence of a "conviction" does not preclude finding criminal inadmissibility for US immigration purposes.
IV. UK police warnings / warnings can be "confessions"
If there is no conviction in the applicant's record, the immigration official may nevertheless accept the applicant to the United States of America if the applicant “accepts” the crime or its essential factual elements. Such acceptance can be obtained before a police officer, federal executive officer, judge, doctor, or US immigration official.
I) “Acceptance” for the purposes of the US Immigration Act
Legal criteria for “acceptance” are defined for the purposes of the Immigration and Nationality Act, Paragraph 212 (a) (2) in Issue K: Before recognition a foreigner must give an appropriate definition of the crime, including all the basic elements elements; (2) recognition of behavior Which constitutes the basic elements of the crime; and (3) the provision of explicit, unqualified, voluntary and unambiguous confession. There is no requirement for a foreigner to admit a legal conclusion or unrealistic elements of a crime.
There is no need for formal criminal charges until there is valid acceptance. For example, in 2013, in a scam trial in the United Kingdom that was widely publicized against former assistants of the famous UK chef Nigella Lawson, Mrs. Lawson admitted under oath that she had used cocaine seven times and “smoked (the strange joint)”. She ever denied being a habitual drug addict or addict.
Although Scotland Yard had not brought any criminal charges against Ms. Lawson for her drug use, and she did not intend to do so; on March 30, 2014, British Airways refused to allow Mrs. Lawson to board a plane for her vacation in the United States.
The United States government has not explicitly issued the exact reason for its refusal. However, a reasonable analysis of the U.S. Immigration Act's approach to violations of controlled substances shows that its widely publicized acceptance in court with its violation of the Controlled Substances Law is consistent with the finding of inadmissibility, provided that other elements of Article K are satisfied in triggering its acceptance.
Consequently, although Mrs. Lawson's admission has been made in a criminal trial against her former aides for fraud, such confessions can make a person inadmissible, even though there are no criminal charges pending against this individual.
Moreover, admission is not required under oath. For example, immigration officer acceptance may be accepted during a visa interview or at the border. In particular, US federal law enforcement officers are trained in the K-issue criteria to obtain correct "acceptance" from foreigners seeking to enter the United States for the purpose of excluding them.
Moreover, the foreigner's acceptance of a doctor during the medical examination required to obtain an American green card that the applicant has smoked marijuana for several years can be the basis for making the foreigner unacceptable to the United States on the basis that he has admitted to violating the Controlled Substances Act, provided that the doctor On admission according to Article from K.
Interestingly, if an acceptance is made after (1) a valid acquittal / dismissal from criminal charges or (2) a valid amnesty for the conviction, the subsequent acceptance of himself will not generally make the person unacceptable. However, if the criminal charges relate to trafficking in controlled substances (for example, intent to sell), confession after acquittal / rejection of the charges could nonetheless provide the US immigration official "reason to believe" that the crime has occurred and made the applicant unacceptable, Although the court acted.
(2) UK police warnings / warnings as "acceptance"
In order for an individual to receive a formal warning from the United Kingdom or a warning about cannabis under the current policy, the individual must acknowledge the officer to the police officer. In order for there to be a conclusion of inadmissibility based on acceptance: (1) the criminal offense must be a violation of CIMT or a controlled substance, as defined in US regulations, and (2) acceptance to the UK police officer must comply with The requirements set forth in question K.
The US Department of State policy on British police warnings was not consistent. On September 23, 1997, there was an advisory opinion from the Ministry of Foreign Affairs stating that police warnings in the United Kingdom "are not tantamount to acceptance" for the purposes of US immigration law.
In late 2013, the US Embassy in London requested new guidance from the US Department of State and began filing requests for visas warning the applicant from the UK police against "administrative processing" until the new advisory opinion was issued.
In February 2014, the embassy began adjudicating suspended UK UK Cases of Caution and Acceptance. Although this means that the US State Department has issued a new official fatwa to the US embassy in London, the opinion has not been released to the public.
In April 2014, the US Department of State made clear to the American Immigration Lawyers Association that although the United Kingdom warns that they are not convictions, it can still be "accepted" for purposes of inadmissibility, and appears to be moving away from its previous view of 1997. The State Department stated that There must be a "case by case" decision, and it is assumed that UK police officers are not trained in devising admission materials or US immigration law.
The US Department of State has guaranteed that an "individual case" analysis is required to determine whether British police policy at the time of caution, for example, requires consent to issue a warning, an appropriate definition of a crime that was provided to an individual prior to its issuance, or whether consent is optional.
The US Department of State current policy appears to treat UK warnings as acceptances, unless this kind of evidence is provided to demonstrate insufficient compliance with Topic K.
The current policy also means that individuals who warn of the UK police who have traveled to the United States based on the Foreign Office policy of 1997 may now need to obtain an exemption or waive the inadmissibility in order to return to the United States.
It is important to note that even if a UK “warning” or warning is made for UK law purposes, it remains in the individual's record under US immigration law: the mere passage of time does not remove an official warning or police warning for purposes of criminal inadmissibility decisions.
5. Exemptions and exemptions from criminal inadmissibility
The discovery of criminal inadmissibility is not the end of the road for a potential traveler of the United States. Depending on the visa required and the crime (crimes) in question, the applicant may be eligible for an exemption or waiver of inadmissibility. The applicant must arrive fully prepared to meet him at the US embassy / consulate with brief legal arguments and supporting documents in favor of such an exemption or waiver of acceptance requests.
Given the way the US embassy in London is now dealing with UK warnings, the prudent approach is to expect the embassy to treat the individual's caution in the UK as "acceptance," unless there is evidence to demonstrate that compliance with the K subject was deficient. Because UK warnings are never "spent" for U.S. immigration law purposes, this new policy may have an impact on allowing previously approved travelers to the United States not to accept or not have an exemption or waiver request that was not necessary before.
Criminal matters must be handled and analyzed carefully before attempting to travel to the United States. The intersection of criminal and US immigration law is complex, and first requires an analysis of whether the contentious crime is within the definition of a violation of “CIMT” or “controlled substance”; whether there is “conviction” or “acceptance” or – if possible – "Reason to believe"; and if so, whether any valid exemption or waiver could be followed. It is advisable to seek a legal adviser to conduct an appropriate evaluation, and if necessary, request mitigation of these complex criminal inadmissibility reasons.