Whether and how to divulge one’s history of contact with law enforcement is an area of substantial confusion among applicants for admission to the US under the Visa Waiver Program (VWP) as well as for applicants for visas, Green Cards, or citizenship. Not only can such a simple question conjure the very worst moments in someone’s life, the appearance of the question alone can portend a potential delay or denial of the benefit foreign nationals are seeking.
In fact, the question “Have you ever been arrested?” is not the word-for-word question that most commonly appears on the forms foreign nationals fill out. Rather, clunky and confusing variations of it are far more common and often stall even the most seemingly simple applications.
ESTA/Visa Waiver Program
In order to obtain an Electronic System for Travel Authorization (ESTA) approval—which Visa Waiver Program (VWP) travelers must have prior to travel to the US—they have to answer questions regarding their arrest history. The question used to be worded 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 HAVE BEEN ARRESTED OR CONVICTED FOR TWO OR MORE OFFENSES FOR WHICH THE AGGREGATE SENTENCE TO CONFINEMENT WAS FIVE YEARS OR MORE; OR HAVE BEEN A CONTROLLED SUBSTANCE TRAFFICKER; OR ARE YOU SEEKING ENTRY TO ENGAGE IN CRIMINAL OR IMMORAL ACTIVITIES?
This was very confusing: it is a compound question that includes legalese, not the least being “crime involving moral turpitude.” To make matters worse, there is no definition in the immigration laws for “crime involving moral turpitude.” So foreign nationals who had been arrested but whose arrest was for a minor offense that they believed was not “immoral” may have chosen to answer “NO” to this question, only to find out later that they were wrong in their assessment, and if they subsequently pursued a visa, a consular officer could have concluded that they made a “material misrepresentation” to the US government in the ESTA application regarding their eligibility to travel to the US—a separate ground of inadmissibility and as such a cause for denial of a visa application.
Given the confusion surrounding the language on the ESTA application, the US government finally changed the question to avoid compounds. Now what was one question has been broken up into several, including:
Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?
Have you ever violated any law related to possessing, using, or distributing illegal drugs?
It is significant that the “arrest” question no longer references “crimes involving moral turpitude.” On the other hand, there is no real guidance from CBP (Customs and Border Protection, the agency that administers the VWP) regarding what is meant by “serious damage to property” or “serious harm to another person or government authority.” The “serious” modifiers do not appear in the immigration laws, and so foreign nationals would again be left to make the legal determination for themselves as to whether a particular arrest or conviction qualifies under this new question.
In addition, the new questions seem to broaden the inquiry: whereas the prior version of the question required an arrest for violation of a law related to a controlled substance, the new version of the question clearly means to encompass a violation of “any law” related to drugs, including violations that did not result in an arrest or a conviction.
DS-160 for Visa Applicants
Although the same grounds of inadmissibility apply to visitors under the VWP as apply to visitors with visas, the arrest question is phrased differently still on the Form DS-160, the online nonimmigrant visa application that must be submitted before any nonimmigrant visa interview at a US Embassy/Consulate abroad. The DS-160 asks:
Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar action?
This phrasing is wider reaching than the ESTA question and seemingly intended to uncover a broader range of conduct. First, there is no effort to define the kind of offense or crime that the question seeks to uncover, and any offense for which one was arrested or convicted would apply. This includes offenses that would not necessarily disqualify an individual from obtaining a visa to the US, such as an arrest that did not result in a conviction or a conviction for an offense that would not make one inadmissible to the US (e.g., a disorderly conduct offense in NY or a simple weapons possession offense). Since a visa applicant will ultimately attend a visa appointment at a US Embassy/Consulate where they could explain or show documentation related to the arrest or conviction, the more broadly phrased question takes into account that an individual officer (as opposed to a computer) will ultimately decide whether the offense or conviction bars someone from eligibility for the visa to the US.
This question’s particular phrasing also goes to a common misconception among visa applicants from countries such as the UK and Canada, which have procedures to have a conviction be “spent” or vacated based on good behavior or rehabilitation. In some circumstances, an individual with a spent conviction may have been advised by a magistrate or judge that they may properly answer “NO” to questions surrounding a spent conviction, including even whether an arrest took place. By including the broad language “pardon, amnesty, or other similar action,” the US government is signaling that it wishes to be aware of any arrest or conviction, even if that conviction is later considered “spent” under the laws of that jurisdiction.
Green Cards/Permanent Residence
Another place where the question of arrests comes up is on the Form I-485, Application to Register Permanent Residence or Adjust Status—filed by foreign nationals in the US to change their status to lawful permanent resident. The questions on the I-485 read as follows:
Have you ever knowingly committed any crime of moral turpitude or a drug related offense for which you have not been arrested?
Have you ever been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance excluding traffic violations?
These questions too are confusing and can be easily misinterpreted by foreign nationals without legal knowledge or experience. First, the use of the double negative in the first sentence is clearly designed to uncover any conduct that would constitute a crime that would make foreign nationals inadmissible to the US, regardless of whether there was any contact with law enforcement. I call it the “What have you gotten away with?” question. It assumes again that the foreign nationals would know what “crime involving moral turpitude” means under US immigration law as well as “drug related offense” (although in a changing landscape around marijuana possession in the US, this is tricky for even the most legal savvy minds).
Importantly, the second I-485 arrest question in fact encompasses far more than even arrests and convictions—by asking if the foreign national was ever “cited, charged, indicted, fined or imprisoned”—and means that the US government wants to uncover a wide swath of law enforcement contact, including tickets and fines that never amount to the use of legal authority to take someone into custody that is the mark of an “arrest.” At the same time, the question also excludes traffic tickets and therefore an individual whose only law enforcement contact is for speeding or parking tickets may safely say “NO” to that question. By asking the questions in this way, US Citizenship & Immigration Services (USCIS, the agency that adjudicates Green Card applications) is casting a wide net so it can decide whether to interview the applicant or request additional documentation regarding the arrest so it can make its admissibility determination.
Similar questions arise on the N-400, Application for Naturalization (citizenship), specifically the “What have you gotten away with?” question. There is also the question:
Have you ever been arrested, cited, or detained by any law enforcement officer (including any and all immigration officials or the U.S. Armed Forces) for any reason?
Importantly, this question includes the reference to citations but excludes the traffic violation exception. Therefore, USCIS wants foreign national applicants to divulge any traffic tickets as well as arrests and convictions. By including traffic tickets, USCIS (which adjudicates the naturalization applications) is trying to make a determination of the applicant’s Good Moral Character. (One of the main requirements of citizenship is showing that the person has been a person of “Good Moral Character” for the previous five years.) In the case of an individual with numerous unpaid traffic tickets, for example, USCIS may decide that the failure to pay the tickets is a sign of a lack of Good Moral Character, which may be a basis to deny the application.
As this short survey shows, the arrest question is not as simple as it appears and the right answer may depend on which version of it a foreign national is facing. While nothing can substitute for expert legal guidance, a deliberate, careful read through of the exact language of the question is a good first step. If a particular contact with law enforcement is not being revealed, it will be important for foreign nationals to be able to explain why not. Willful misrepresentation of a material fact can be grounds to bar future travel to the US, lose a visa or permanent resident (Green Card) status, or be denied citizenship (or have citizenship that was granted be taken away).
Certainly by answering “NO” to an arrest question where the answer should be “YES” would tend to cut off a line of questioning that could lead to a denial of a particular immigration benefit, and therefore the answers would be facts “material” to the government’s decision-making process. Regardless of how the questions are ultimately answered, if foreign nationals have had law enforcement contact, it will be important to have any court or police paperwork related to that contact ready for review by a qualified immigration attorney as well as the appropriate government official. By being informed about what each question is asking, as well as by being prepared to answer and provide the relevant documentation, foreign nationals will be better equipped to tackle an often challenging and confusing part of the immigration process.