The way in which US immigration law treats criminal matters for purposes of determining a non-US citizen’s admissibility to the United States is complex. Notably, travellers from the United Kingdom are often surprised that a UK police caution or formal warning, in which there was no court or judge involvement and no filing of formal criminal charges, could render them “inadmissible” to the United States for any reason.
Their astonishment arises not only from the complex intersection of criminal and US immigration law, but also from the fact that the US Department of State has not been consistent in the way it treats UK cautions/warnings, adopting a new approach as recently as 2014. The recent 2014 policy, described below, could mean that non-US citizens with UK cautions who were previously traveling to the United States without issue may now be barred from the United States, unless eligible for an exemption or waiver of inadmissibility.
Below is a brief summary of the current state of UK police cautions/warnings and US immigration law. The article demonstrates that the prudent approach would be to treat all formal UK police cautions and warnings as “admissions” for purposes of determining criminal inadmissibility, unless there is evidence showing that the admission was not obtained in compliance with controlling US legal precedent medical cannabis.
I. Overview of Criminal Inadmissibility under INA § 212(a)(2)
An alien is inadmissible to the United States for committing a “crime involving moral turpitude” (CIMT) or a crime involving a controlled substance, including an attempt or conspiracy to commit them, if (1) the individual was convicted of such crime; or (2) the individual admitted to having committed such a crime, or admitted to its essential elements.
Further, (3) if the US immigration official has a mere reason to believe the alien was or is involved in the trafficking of a controlled substance (e.g., intent to sell), the alien can be rendered inadmissible under INA § 212(a)(2)(C)(i), even though the alien was not convicted (e.g., acquitted) of the crime and has not admitted to its commission or essential factual elements.
A finding of criminal inadmissibility is not the end of the road. Once an individual is considered to be inadmissible, he or she should then pursue, through legal counsel, any applicable exemption or waiver of inadmissibility for the US visa type being sought.
II. UK Cautions/Warnings Defined
Below are three UK out-of-court dispositions particularly relevant to US immigration law:
i) Simple Police Caution. A simple caution is a formal notice from a police officer that a person has committed an offence. Under current policy, the individual will generally be fingerprinted and photographed. The police will likely offer a caution if it is a minor offence and usually if there is no other criminal history. The police can only issue a simple caution if the person admits to the offence and agrees to be cautioned. If the person refuses the caution (e.g., denies the offence), then formal criminal charges will be brought against the individual.
ii) Conditional Police Caution. A conditional police caution is the same as a simple caution in all respects, including an admission to the offence, except the individual is subject to certain conditions. Failure to comply with the conditions will result in formal criminal charges being brought against the individual.
iii) Cannabis Warnings. A cannabis warning is not a caution, but a verbal warning by a police officer to a first-time offender possessing a small amount of cannabis for personal use. The police cannot give the formal verbal warning unless the person admits ownership of the cannabis. The police officer will record that the individual has admitted to owning the cannabis and will be asked to sign this record. Warnings will show up on an ACRO report and will need to be addressed for purposes of US immigration.
The consistent element in all of these UK out-of-court dispositions is that the individual must “admit” to the offence. As discussed below, whether the admission under UK law qualifies as an admission under US immigration law requires a case-by-case analysis.
III. UK Cautions/Warnings Are Not “Convictions”
A “conviction” for purposes of US immigration requires (i) a formal judgment of guilt entered by a court; (ii) or if adjudication is withheld: a finding of guilt by a judge or jury, a plea of guilty or nolo contendere by the alien, or admission of facts from the alien sufficient for a finding of guilty; or (iii) the imposition of some form of punishment by a judge.
Based on this definition, UK police cautions or warnings do not qualify as convictions for purposes of US immigration. On April 9, 2014, the US Department of State’s Visa Office agreed. The reasoning being that there is no official court or judicial action. However, as explained below, the absence of a “conviction” does not preclude a finding of criminal inadmissibility for purposes of US immigration.
IV. UK Police Cautions/Warnings Can Be “Admissions”
If there is no conviction on the applicant’s record, the immigration official can nevertheless render the applicant inadmissible to the USA if the applicant “admitted” to the crime or its essential factual elements. Such admission can be elicited before a police officer, federal law enforcement, judge, medical doctor, or US immigration official.