By Johnsulli - 21 Mar 16 2:21 PM
Hi,
I am due to travel to the USA in a month or so (Miami) and then again a month later to Las Vegas for a family holiday.
My situation is as follows;
I am currently on bail for possession, GBH and affray. The GBH & affray happened in December. My solicitor has indicated he highly doubts that there will be any conviction for 2 reasons. Firstly, the 'assault' was actually a disagreement with a friend at a christmas night out & the friend is totally on our side. Consistently telling the police he has no interest in pressing charges...i actually sit next to the guy daily....we went for lunch the day after! Secondly in any case it was a single punch in retaliation so hardly GBH. All parties (including the police we think) expect it to fall apart over the coming months, but they must follow as procedure. Absolute worst case, it would be common assault & public disorder, definitely not GBH and affray. But as it stands, I'm non bail for GBH & affray which i suppose is the relevant fact.
The possession charge is equally frustrating. To cut a long story short, a single pill of class A drug was found loose in my jacket pocket and tested positive as a drug. I was drug tested which came back negative. I then went and got a 12 month drug test (privately & £1200 ouch ) which agreed with the police drug test coming in negative on literally everything. I have never even tried drugs so an incredibly frustrating situation. We have opted for a trial to be in a crown court instead of magistrates so i get an opportunity to explain how this could of got there. We though a magistrate (understandably) would refuse to accept I didn't know, and a jury was my only option as at least they would take into consideration all of the negative results. Again the solicitor has said the emphasis is on the court to prove i was aware of the possession which given my background and job etc seems highly unlikely, so hopefully and more likely than not, i won't get a conviction.
Other than the last 2 months I've been arrested once, for criminal damage, notably trying to force open the shutter of drive through KFC when i was 18 on my way home from a night out.Other than that my record is totally clean, no previous for anything.
So to be clear as thing stand my record shows one conviction (a caution) for criminal damage, and that is all. In addition I'm on bail for GBH, possession & affray (i realise this sounds awful!)
I am clearly ineligible to travel on an ESTA due to the arrest, regardless of the fact i haven't been charged and am unlikely to be. I gather that if i go for a visa i will certainly be rejected i am on bail and they will simply say wait until we have a result on those 2 charges, again, understandably. How much information is really available at US border control? Ive actually been to the US 10+ occasions since the caution for criminal damage 7 or 8 years ago, and I've never declared this on an ESTA... would filling in an ESTA now with those 2 bails looming over me be any different?
Maybe being on bail is a huge red flag for them and they will want to know exactly what for as it could be for a horrendous crime?
Any advice would be very much appreciated - I realise that officially i should not be travelling on an ESTA, and that i should cancel the trips but anyone who can offer insight beyond this would be great. Please remember I'm talking incredibly short term...once these 2 charges go away in 6 months, i will definitely be applying for a visa through the embassy as if i get no convictions (but have been arrested) I'm hoping to convince the embassy to give me a visa, but right now, on bail, they simply won't listen (again - understandably).
 
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By BenS - 5 Aug 15 6:55 PM
Online you will find countless accounts of people with criminal records, including jail time, who have been to the USA on an ESTA with no problem.
The US does not have simple access to the PNC, i.e. the border guards can't just check on their computer and find out all about your life. They only can access your PNC details by making a request on an individual basis, and they require a reasonable grounds/suspicion for doing this, they can't just do request access because they're curious or as a routine check.
You have travelled to the US on an ESTA on multiple occasions since your criminal record, which as you were 18 is an adult criminal record, and have had no problem. It would therefore appear that it should be OK but I don't know if different information-sharing applies to bail.
I am not a lawyer and claim no responsibility and would obviously add the disclaimer here that there is no guarantee either way!
In future I would suggest flying from Ireland, because they have pre-clearance US immigration there, i.e. you pass through the border control at Dublin or Shannon airports and you are technically in the USA and then once your plane actually arrives in the US you will go through domestic arrivals with no checks. At least then, if you are turned away, you are only stuck in Ireland rather than being stuck in the US having to catch the next flight back at your own expense.
Good luck - people with more serious criminal records have got in on an ESTA.
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By Johnsulli - 21 Mar 16 2:21 PM
Thank you very much for your reply.
Of course i understand your advice is in no way legally correct etc! Just happy to hear general views/opinions.
I did look at Ireland, but to be honest it would be almost as inconvenient getting turned away in Ireland as it would in Las Vegas. The inconvenience really is not being able to go, the flight back wouldn't be the end of the world vs the disaster of not getting let in.
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By BenS - 5 Aug 15 6:55 PM
You're welcome. My personal view is that if you are honest and apply for a visa there is a 90% chance it will be arbitrarily rejected and any subsequent ESTA application will also automatically be rejected, whereas if you get an ESTA and tick no to the criminal convictions question there is a 90% chance you will get through.
I know it's a nerve-wracking time anyhow, good luck  Once you get through once you can be pretty sure you will always be fine and won't be so nervous the next time.
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By Victor H - 15 Dec 13 7:37 PM
Heathrow and few other Airports are due to get those pre-flight US clearance checks but its still many years away.
https://www.businesstraveller.com/news/101709/plans-for-us-pre-clearance-at-heathrow-and-manc
Otherwise I agree go and enjoy really, just tick no to all of it the things you done imo don't even come remotely close to an criminal or criminal record !
Perhaps it is better however to book cheapest flight and only to prebook hotel and pay when you arrive, Us travel is very expensive after all.
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By Johnsulli - 21 Mar 16 2:21 PM
Update...SO GBH & Affray just got dropped to common assault & section 4 public disorder, clearly much less serious accusations albeit i'll still be contesting them. Importantly, neither of those involve moral turpitude so wouldn't need to be declared on an ESTA...
I have pleaded not guilty to the possession charge & we believe I have a strong chance due to the test result all saying negative but the trial will not be until September due to me requesting trial by jury.
Im still totally undecided on what to do re the trip to the US!!! The standalone question really is can US border control see that i am currently on bail for possession..
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By Hola - 20 Jan 16 6:05 PM
it was over 4 yrs ago but I travelled to the US whilst on bail for ' image offences ', and got in twice no problem. I wasn't being intentionally sly with them, I had an approved ESTA already from earlier trips, and just thought that as I was on bail, innocent until proved guilty etc, that it would be a non issue. Possibly I was naive / lucky but like others have said I'd recommend trying for the ESTA and see what happens, esp now the wording has changed and moral turpitude is no longer asked about
And finally, again think this has been said already, I'd definitely book Aer Lingus flights as customs clearance is done in Dublin so if you are rejected you've only got a short hop home rather than a transatlantic flight to find
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By BenS - 5 Aug 15 6:55 PM
Johnsulli said...
The standalone question really is can US border control see that i am currently on bail for possession..
This from gov.uk: "The United States authorities do not have routine access to criminal record information held on the Police National Computer, the Criminal History System (in Scotland) or the Northern Ireland Criminal Record. The United States authorities are able to seek details of any criminal convictions held on the Police National Computer on an individual request basis through Interpol channels." https://www.gov.uk/government/publications/access-by-the-us-authorities-to-information-held-on-the-police-national-computer
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By Johnsulli - 21 Mar 16 2:21 PM
Thanks for all of your advice & help on this everyone.
Another twist in the story!!! - So I've just been contacted by the CPS saying that the possession charge has been 'discontinued'. The CPS have used their common sense and decided there isn't a hope on hell of conviction due to no previous and the private test i had done the following day and so no need to end court, game over.
The common assault and section 4 still looms over me but neither of those are crimes of moral turpitude.
I still have time for an interview with the US embassy if that is now the sensible decision? Previously I think most people agreed they would never grant a visa whilst being on bail for GBH & Affray & possession, but all 3 of these have gone away, to be replaced by 2 far less (in terms of US travel) offences.
Saying all of that, i still don't qualify for an ESTA due to being arrested for them in the first place.
What are your thoughts?
Thanks again!
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By Hola - 20 Jan 16 6:05 PM
The questions have changed last yr, here's the relevant one I think :
' Have you ever been arrested or convicted for an offence or crime that resulted in serious damage to property, or serious harm to another person or government authority; or ever violated any law related to possessing, using, or distributing illegal drugs? '
Based on what you've said the charge is I think you can say no ... ?
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By Mirrorman - 20 Jun 12 9:03 PM
Tick 'NO' to every box.
It's a 50/50 chance if you get through or not.
If you disclose any arrests/convictions you will more than likely get denied.
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