ESTA: Crimes Involving Moral Turpitude Question

FreeForAll

Hi all, just wanted to get everyones opinion on the following.

So one of the questions when filling out the application form for admission under the Visa Waiver Program reads as follows:

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 entry to engage in criminal or immoral activities?

So as you read the above question depending on your personal circumstances you may firstly say, YES I have been arrested. If so you would then ask yourself was this arrest for an offense involving moral turpitude? You may say well I am not sure so you click on the link they provide: Please select if you need additional help on any of these questions.

So you go to the above link and find the following information provided for this question:

Crimes involving moral turpitude - Such offenses generally involve conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed to persons or society in general. There are factors, such as the age of the offender or the date of the offense, that may affect whether an offense will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act.
For further information refer to § 212(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2), § 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) and corresponding regulations in the Code of Federal Regulations.

So after you read the above it is still not very clear as to whether the crime you were arrested for is a crime involving moral turpitude so you look up 212(a)(2) of the Immigration and Nationality Act and read the following:

Section 212(a) of the Immigration and Nationality Act reads:

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

Section 212(a)2(a)iI of the Immigration and Nationality Act reads:

(2) Criminal and related grounds.-
(A) Conviction of certain crimes.-
(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.


So then you ask yourself well what is clause (ii):

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).


So after reading all of this you might think the following:
1. Was I arrested - YES.
2. Was I convicted - NO: pleaded not guilty and case was struck out.
3. Was I arrested for a crime involving moral turpitude - Not sure.
4. Does my situation fall under the exception clause 212(a)2(a)iiII - YES as it was my first time arrested for a crime possibly involving moral turpitude and the maximum sentence was less than one year.
5. Should I answer YES or No to the question on the Application from:

Answer NO as even if it was a crime involving moral turpitude you are exempt as it was your first such crime and the maximum sentence for the crime was less than one year so the clause would apply in your case.

Please let me know what you think about the above scenario and whether you would agree with answering No to the question for the reasons I outlined above, thanks.

johnnyskeleton

Lots of threads on this already, you might find the information you need there. Failing that, speak to an immigration solicitor maybe.

FreeForAll

johnnyskeleton wrote: »

Lots of threads on this already, you might find the information you need there. Failing that, speak to an immigration solicitor maybe.

I went through all the threads I could find on this before posting this thread but didn't see much detail on this exception clause and if it can be used when answering the question.

Really what I'm wondering is can an individual read the Immigration and Nationality Act themselves and determine that 212(a)2(a)iI (a crime involving moral turpitude) shall not apply as the crime they were arrested for falls under the conditions outlined in the exception clause 212(a)2(a)iiII and therefore answer No or must you answer Yes as it was a crime involving moral turpitude and let the embassy make the decision that your circumstances fall under the exception clause.

As you said maybe this is something I would need to ask an immigration solicitor about but I figured I'd put this up on boards as after reading all the other threads I think if there was clarification on this and the result was that the individual can determine this themselves it might save alot of people a lot of hassle by being able to answer No to the question. I was hoping someone may have already gone through this with the US embassay or an immigration solicitor and could share with us how they were advised to proceed in their personal circumstances.

coylemj

No offence meant to the legal eagles on this forum but you really need to ask that question in the USA & Canada Travel forum where there are dozens of threads discussing visa requirements and the questions they ask...

http://www.boards.ie/vbulletin/forumdisplay.php?f=1183

and you might find this interesting reading..

http://en.wikipedia.org/wiki/Moral_turpitude

and this might be exactly what you're looking for...

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

MagicSean

What crime are we talking about?