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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24630
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Hello, Im an Australian citizen who recently applied for

Resolved Question:

Hello,

I'm an Australian citizen who recently applied for a U.S. Non-Immigrant visa and have just been refused.

I have successfully applied for a visa in 2008.

The reason I need to apply for the non-immigrant visa and not the waiver program is that i indicated on my application that I had been arrested for an offense involving drug possession, as well as moral turpitude.

In 1996 I was arrested and issued a court summons for drug possession. It was a very small amount of LSD (2 tabs from memory). At the court I was issued a Section 10 with apparently means I was not convicted and it would not reflect on any record.

In 1997 I was issued a court summons for "Larceny as a public servant" (they didnt quite know how to charge me - I stole some household items for a nominal value from the supermarket i worked in at the time) At the court hearing I pleaded guilty and was issued court costs and release without conviction or record again.

I have since never been in trouble. I'm a working professional with an excellent public standing.

After seeking some advice from my local police I was advised that I have no record and should possibly have come through the ETSA system.

I'm in the process of acquiring all of the documentation to prove this.

How should I proceed? Am I able to apply through ETSA based on this information?

Sincerely, Matt (Sydney)
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.
Hello Matt,my name is Judith. Thank you for this opportunity to answer your questions.
You do have to admit to the arrests and in doing so you will be denied. You can appeal the denial.
However, I need some additional information. The drug charge is the most serious making you inadmissiable if it is determined to be a conviciton under immigration law. Immigration law and it's definition of a conviction is different than criminal law.
Did you appear in court before a judge?
Did you admit to the judge your possession of the tablets?
Or did were the facts of your arrest read and did you admit to the truth of the allegations?

Judith
Customer: replied 1 year ago.

Hi Judith, thank you for your response.


According to my information, I was released without conviction or record. I did appear in court before a judge.


I'm trying to obtain court documents which may provide a more legal response than the one I'm giving you now.


From memory (17 years ago) the facts were read, and I admitted to the truth. I think. I remember saying very little, and I remember it being rather quick.


 


What specific information would I need to provide to you so you can get a clearer picture?

Expert:  Judith replied 1 year ago.
Under US immigration law you do not have to have a conviction of the charge entered by the judge. However, if you admit to the facts of the crime in exchange for a diversion program or probation before judgment where the charge is later dismissed it is still a conviction under immigration laws.
So it is a procedural issue that is what determines whether you have a conviction under immigration law.
I need to know what the procedure was.. I will also look up Section 10 in the internet and see what I come up with surfing.
Judith
Customer: replied 1 year ago.

I believe it was a section 10(1)A or B. A is a dismissal, B is dismissal of charge with a good behavior bond, which is most likely the one I received.


 


This is the reference I used:


http://www.armstronglegal.com.au/web/page/section_10


 


 

Expert:  Judith replied 1 year ago.
I'm on that same site
here are three types of section 10s:
  • Section 10 dismissal – Section 10(1)(a)
  • Conditional dismissal with a good behaviour bond - Section 10(1)(b)
  • Conditional dismissal with a rehabilitation course – Section 10(1)(c)

The same site also says
This section allows a Court that finds you guilty of an offence, to discharge you without recording a conviction.

 

That means that you admit to the facts and under US immigration law that is a conviction.

I'm doing some further research now.
Judith
Customer: replied 1 year ago.

Thanks Judith,


 


OK this being the case it looks like I can't apply through the ESTA system?


 


With regards XXXXX XXXXX refusal;


What is the criteria for endorsement of a waiver or a refusal?


Has this recently become more stringent? (I have been issued a visa previously and my circumstances have not changed since)


Is the matter considered minor because I have no criminal record, it was a long time ago, and i've never been in trouble before or since?


Would submitting additional information reverse this refusal?


 

Expert:  Judith replied 1 year ago.
In that Armstrong site it says:, but also about sections 10s or "findings of guilt" (a section 10 is still a finding of guilt).

Under US immigration law here is the definition of conviction:

II. Definition of Conviction

A. Statutory Definition

Congress defines “conviction” at 8 U.S.C. § 1101(a)(48)(A), INA § 101(a)(48) as

follows:

The term ‘conviction’ means, with respect to an alien, a formal

judgment of guilt of the alien entered by a court or, if adjudication of guilt

has been withheld, where:

(i) a judge or a jury has found the alien guilty or the alien has entered a plea

of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt,

and

(ii) the judge has ordered some form of punishment, penalty, or restraint on

the alien’s liberty to be imposed

http://www.fd.org/pdf_lib/MT08/MT08_GroundsDeportabilityInadmissibilityCrimes.pdf

At Page 2

When you applied for a visa in 2008 did you admit to the arrest? The visa application asks if you were ever arrested.

Did you take in the court dispositions?

Judith

Expert:  Judith replied 1 year ago.
Are you still with me?

Judith
Customer: replied 1 year ago.

Still here Judith, just doing some research!

Expert:  Judith replied 1 year ago.
You didn't answer my follow-up questions so I will just provide you with the links to the 212d3 waiver you can request from the consul at the embassy when your visa is refused.
You can write and ask for reconsideration and a waiver based on 212d3. You can insist on their consideration of the waiver. See the FAM link

I'm not able to answer why your visa in 2008 was issued because I don't know the facts. If you had admitted to the arrest you would have had to show the dispositions.

Judith
Customer: replied 1 year ago.

Sorry Judith, I dont know happened then. Here is my reply to your question;


 


Yes I admitted to the arrest in 2008. No I didn't take in any court documents, and they never asked, which is why I didn't think I would need them now.


 


Just to clarify "arrested": I was taken back to the police station and interviewed, and issued a court summons. Apart from the interview I was not held or sent anywhere for detainment. (I'm not sure if this makes a difference really, but I don't know if the U.S. definition of arrested is different from the Australian definition)

Customer: replied 1 year ago.

Sorry Judy, I accidentally closed my browser and now cant log back into our conversation. Just trying again now.

Expert:  Judith replied 1 year ago.
Arrested is being held and not being free to leave. They ask if you have been arrested, charged, cited, basically whether you have been accused of a crime.
What this boils down to is you will not qualify for ESTA despite what your police say. Under US law you will require a waiver.
Any drug conviction for a controlled substance other than less than 30 grams of marijuana is a very very serious matter. It ranks up there with homicide.
I have given you the US law and hope you understand you do have a conviction regardless of what your police say. I cannot do more than give you the law and the legal citation for the law.
You may want to consider having a US immigration lawyer assist you with your request for reconsideration and a waiver.
You can find one in AU at www.ailalawyer.com

Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24630
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and 2 other Immigration Law Specialists are ready to help you

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