Is A Caution A Criminal Conviction?
No. Under U.S Federal law, a conviction involves, “The imposition of some form of punishment, penalty, or restraint of liberty by a judge”. In the U.K, cautions are issued by the Police, not by Judges. Accordingly, cautions do not constitute a “criminal conviction” within the meaning of the Immigration and Nationality Act 101(a)(48).
However, the mere fact a caution is not a criminal conviction does not automatically mean that it will not affect your admissibility to the U.S.
Does A Caution Cause Me To Be Ineligible To The U.S?
Under some circumstances, a caution may lead to you being considered “inadmissible” to the U.S.
Under the Immigration and Nationality Act 212 (A)(2)(A)(I)(I) any foreign national “convicted of, or who admits having committed”
- A crime involving moral turpitude (or an attempt or conspiracy to commit a crime involving moral turpitude) or
- A violation of (or a conspiracy or attempt to violate) any law of a State, the U.S or a foreign country relating to a controlled substance
is considered inadmissible to the U.S.
In order to determine whether your caution renders you inadmissible to the U.S, we need to consider two questions:
- On what date was the caution issued?
- For what offense was the caution administered?
In relation to the first question, cautions issued prior to July 10, 2008 should not be considered an “admission” of the commission of a criminal offense within the meaning of INA 212 (A)(2)(A)(I)(I), in the absence of an admission made to a Consular Officer, in accordance with the relevant protocol. However, this is subject to a very important caveat.
Any individual who has received a caution for a crime involving moral turpitude or a controlled drug offense will be ineligible to travel to the U.S on ESTA, regardless of the date of the caution.
You must then ask yourself, whether your caution is for any offence that may fall under INA 212 (A)(2)(A)(I)(I): Crimes involving moral turpitude or crimes related to controlled substances.
Crimes involving moral turpitude (hereafter “CIMT”) are defined as “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”
If you are in this position, we would advise you to contact one of our attorneys for a complimentary assessment of your circumstances, in order to determine your prospect of successfully obtaining a visa and a waiver of inadmissibility.
Can I Enter the U.S On ESTA If I Have A Caution?
It depends on the offense to which the caution pertains. If you have a caution for a CIMT or an offense involving a controlled drug, other than in very limited circumstances, you may not travel to the U.S on ESTA, regardless of the date of the caution. It is likely you will need to apply for the appropriate visa and possibly secure a waiver of inadmissibility in order to be eligible to travel to the U.S.
Again, if you are in this position, you would be well-advised to seek advice from a licensed U.S immigration attorney regarding the appropriate visa for your unique personal circumstances and your prospects of successfully obtaining a waiver of inadmissibility.
What If I Was Cautioned 10 Years Ago? Surely That Does Not Count?
Cautions issued prior to July 10, 2008 should not be taken into consideration when considering U.S visa applications, since cautions issued prior to July 10, 2008 should not be considered “admissions” within the meaning of the Immigration and Nationality Act and therefore should not affect visa eligibility. However, all cautions for CIMTs and controlled drug offenses must be disclosed to the U.S Embassy, regardless of the date they were administered.
It is important to note that the U.K Rehabilitation of Offenders Act does not apply to U.S visa applications and therefore all brushes with the law should be disclosed to the U.S Embassy. In the case of immigrant visas, an applicant may rely on the 15 year statute of limitations, in respect of certain offenses.
What If I Never Actually Admitted The Offense?
If you received a caution after July 10, 2008, you will usually be deemed to have “admitted” the offense in question, regardless of the circumstances surrounding the caution.
Please note, this article is provided for information purposes only. If you are contemplating travel to the U.S and have had a brush with the law of any kind, it is important to seek legal advice regarding your unique personal circumstances from a licensed U.S immigration attorney.
