Probation Act & Entering USA

zachaus

1. Is it possible to enter the USA under the visa waiver program when you've been given the Probation Act by a judge for a public order/breach of peace charge?

2. Is it possible to enter the USA under the visa waiver program when you've been given an Adult Caution for a public order/breach of the peace arrest?

Holsten

Yes.

Yes.

zachaus

Holsten wrote: »

Yes.

Yes.

Mmm... How can you be so sure?

Have you stopped to think about the bit on the ETSA (Electronic System for Travel Authorization), where it asks you:

"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"

When you click "Yes", a warning pops up:

"Are you sure you wish to answer yes to this question? DHS [Department of Homeland Security] recommends that you review the "Help" section of this site before proceeding with your application."

Here is the help section: https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm

Now, in relation to my specific question; is public order (breach of the peace) a crime of moral turpitude?

Is one obliged to declare arrests if:
a) you've been given the Probation Act
b) you've been given an Adult Caution
or
c) you've had an arrest in the USA which was subsequently "expunged"

Peregrinus

zachaus wrote: »

Mmm... How can you be so sure?

Have you stopped to think about the bit on the ETSA (Electronic System for Travel Authorization), where it asks you:

"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"

When you click "Yes", a warning pops up:

"Are you sure you wish to answer yes to this question? DHS [Department of Homeland Security] recommends that you review the "Help" section of this site before proceeding with your application."

Here is the help section: https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm

Now, in relation to my specific question; is public order (breach of the peace) a crime of moral turpitude?

Is one obliged to declare arrests if:
a) you've been given the Probation Act
b) you've been given an Adult Caution
or
c) you've had an arrest in the USA which was subsequently "expunged"

Well, "ever been arrested" seems clear enough; if you have ever been arrested you have to declare it, regardless of what happened afterwards. I'm not exactly sure what is meant by having an arrest "expunged" in the US, but I'd be inclined to declare even that arrest. I certainly wouldn't omit any arrest on the basis that it culminated in a Probation Act order or an adult caution rather than some more severe sanction. Even if you were in the end triumphantly acquitted of whatever it way, you were still arrested, and that's what they are asking you.

Is breach of the peace a crime of "moral turpitude"? Depends on the facts, but I'd say typically not. Breach of the peace is more usually down to some combination of high spirits, immaturity, poor judgment and too much grog rather than anything you might characterise as inherent depravity. For moral turpitude you're looking for some factor like malice, dishonesty, oppressive or violent conduct.

Wikipedia has a useful article which, while not gospel, does have a table showing various offences which have, and various offences which have not, been treated as involving moral turpitude by the State Department: http://en.wikipedia.org/wiki/Moral_turpitude. Breach of the peace shows up as not involving moral turpitude.

Holsten

It's a conviction for a crime of moral turpitude that would only really prevent one getting the visa waver.

In both cases of the original post the person would be left without a conviction, and I highly doubt that any crime which involves moral turpitude would result in either the probation act or a caution.

Another bit of info is that the Americans have no access to Garda or court files, they only know about you what you tell them yourself.....

schemingbohemia

zachaus wrote: »

Mmm... How can you be so sure?

Have you stopped to think about the bit on the ETSA (Electronic System for Travel Authorization), where it asks you:

"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"

When you click "Yes", a warning pops up:

"Are you sure you wish to answer yes to this question? DHS [Department of Homeland Security] recommends that you review the "Help" section of this site before proceeding with your application."

Here is the help section: https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm

Now, in relation to my specific question; is public order (breach of the peace) a crime of moral turpitude?

Is one obliged to declare arrests if:
a) you've been given the Probation Act
b) you've been given an Adult Caution
or
c) you've had an arrest in the USA which was subsequently "expunged"

OK so having queried the person who answered your question correctly you then google the ESTA to possibly prove them wrong. Here's an idea - google moral turpitude then come back and say sorry to the person who answered you. If you think you know the answer yourself why bother asking here?

Fred Swanson

This post has been deleted.

coylemj

By no stretch of the imagination could a public order offence fall into the category of 'crimes involving moral turpitude'.....

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.

Item 1.1.1.1.6 section 'B' here. Scroll down to the text boxes with the blue headers....

https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm

zachaus

OK, honest opinion here.

My "friend" has the following rap sheet:

- Public order (breach of peace) Probation Act
- Public order (breach of peace) Adult Caution
- Arrest and court appearance (Dismissal + sealed record) from the United States

Apart from advising my friend to drink less, yay or nay?

My friend has hired a lawyer in the States in this regard. This lawyer is going to do a freedom of info with the Department of Homeland Security to see if anything shows up in federal records. "Apparently" sealed dismissals, while they don't appear on State records, do show up on federal databases and pop up when applying for a position of public trust (called to bar, teachers, coaches, etc.)

- Ideal outcome: my friend can simply answer no to "have you ever been arrested" on ETSA
- OK outcome: my friend must apply for a visa
- Bad outcome: my friend can never travel to the States ever again

zachaus

schemingbohemia wrote: »

OK so having queried the person who answered your question correctly you then google the ESTA to possibly prove them wrong. Here's an idea - google moral turpitude then come back and say sorry to the person who answered you. If you think you know the answer yourself why bother asking here?

Wow... Just wow...

coylemj

OP, concealing the US arrest & conviction record in your original question marks you out as a time waster.

Go away.

Cody Pomeray

concealing it? eh, do you understand that this is not a court? The OP is not being 'investigated' by us either.

Serious amount of Judge Joe Browns around here.

The US element is an interesting dimension OP, I don't know what the answer to that particular aspect is but I'd be pretty confident about any person in general being silent on a probation order when going through the visa waiver.

coylemj

Cody Pomeray wrote: »

concealing it? eh, do you understand that this is not a court? The OP is not being 'investigated' by us either.

The advice he got from myself and other posters is rendered redundant if his "friend" (the quotation marks are his) has a US record. He can't even be upfront with a bunch of anonymous posters on boards, that's why I say he's a time waster.

Cody Pomeray

We're not here to give legal advice.

This is a place where we discuss the law, not people and their lives. If the oP doesn't want to disclose something in his life, that's fine and none of our business.

zachaus

coylemj wrote: »

OP, concealing the US arrest & conviction record in your original question marks you out as a time waster.

Go away.

What are you on about? If you don't want to waste your time, then don't.

Holsten

zachaus wrote: »

OK, honest opinion here.

My "friend" has the following rap sheet:

- Public order (breach of peace) Probation Act
- Public order (breach of peace) Adult Caution
- Arrest and court appearance (Dismissal + sealed record) from the United States

Apart from advising my friend to drink less, yay or nay?

My friend has hired a lawyer in the States in this regard. This lawyer is going to do a freedom of info with the Department of Homeland Security to see if anything shows up in federal records. "Apparently" sealed dismissals, while they don't appear on State records, do show up on federal databases and pop up when applying for a position of public trust (called to bar, teachers, coaches, etc.)

- Ideal outcome: my friend can simply answer no to "have you ever been arrested" on ETSA
- OK outcome: my friend must apply for a visa
- Bad outcome: my friend can never travel to the States ever again

This changes things.

They know your friend has been arrested before so they will HAVE to answer yes. If friend doesn't and lies and they find out.. which they will since it will come up on their systems friend may be banned from entering the states for.. 10 years I think it is.

The Irish record is not the problem here at all, it's the American one that will cause issues.

Peregrinus

zachaus wrote: »

OK, honest opinion here.

My "friend" has the following rap sheet:

- Public order (breach of peace) Probation Act
- Public order (breach of peace) Adult Caution
- Arrest and court appearance (Dismissal + sealed record) from the United States

Apart from advising my friend to drink less, yay or nay?

My friend has hired a lawyer in the States in this regard. This lawyer is going to do a freedom of info with the Department of Homeland Security to see if anything shows up in federal records. "Apparently" sealed dismissals, while they don't appear on State records, do show up on federal databases and pop up when applying for a position of public trust (called to bar, teachers, coaches, etc.)

- Ideal outcome: my friend can simply answer no to "have you ever been arrested" on ETSA
- OK outcome: my friend must apply for a visa
- Bad outcome: my friend can never travel to the States ever again

The question asked is "have you ever been arrested or convicted?" Consequently, an arrest has to be disclosed; it makes no difference whether the outcome was conviction, Probation Act, plea bargain for a different charge for which no arrest was made, nolle prosequi or acquittal. The "or convicted" language is not intended to reduce the scope of the "have you ever been arrested?" question, but to increase it, to cover cases where someone is convicted of an offence for which they were never arrested.

The OP's friend has been arrested; knowing that, we need not ask ourselves whether he has been convicted. The only issue is whether the offence for which he was arrested is one of moral turpitude, and in so far as Wikipedia is reliable in quoting State Department practice, it seems that breach of the peace is not consididered to be so. However if I am reading the above correctly there seems to have been three incidents, and we're not told what the subject of the third incident (arrest and court appearance resulting in dismissal) was. If it was something other than breach of the peace, then possibly it would require disclosure.