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.
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.
i) An “admission” for purposes of US Immigration Law
The legal criteria for an “admission” for purposes of INA § 212(a)(2) is defined in the Matter of K: the alien must (1) prior to the admission be given an adequate definition of the crime, including all essential elements; (2) admit to conduct that constitutes the essential elements of the crime; and (3) provide an admission that is explicit, unqualified, voluntary and unequivocal. There is no requirement that the alien admit the legal conclusion or non-factual elements of the crime.
Formal criminal charges are not required for there to be a valid admission. For example, in 2013, in a highly-publicized UK fraud trial against the former assistants of UK celebrity chef Nigella Lawson, Ms. Lawson admitted under oath to having used cocaine seven times and “smok[ing] the odd joint.” She denied ever being a habitual drug user or addict.
Even though Scotland Yard never brought criminal charges against Ms. Lawson for her admitted drug use, and does not intend to do so; on March 30, 2014, British Airways refused to allow Ms. Lawson to board a plane for her holiday to the United States.
The US government did not explicitly release the exact reason for its refusal; however, a reasonable analysis of US immigration law’s approach to controlled substance violations shows that her highly-publicized admission in court to having violated a controlled substance law is consistent with a finding of inadmissibility, provided that the other elements of Matter of K were met in eliciting her admission.
Thus, even though Ms. Lawson’s potential admission took place in a criminal trial against her former assistants for fraud, such admissions have the potential of rendering a person inadmissible, even though there were no criminal charges pending against that individual.
Moreover, an admission does not need to be made under oath. For example, an admission to an immigration official during a visa interview or at the border would qualify. Notably, US federal law enforcement officers are trained in the Matter of K criteria to properly obtain a valid “admission” from aliens seeking entry to the United States for the purpose of excluding them.
Further, an admission by an alien to a medical doctor during a required medical exam for a US green card that the applicant had smoked marijuana for a number of years could be a basis for rendering an alien inadmissible to the United States on the basis of having admitted to violating a controlled substance law, provided the doctor obtained the admission in accordance with Matter of K.
Interestingly, if an admission is made subsequent to (i) a valid acquittal/dismissal of criminal charges or (ii) a valid pardon of a conviction, the subsequent admission by itself will not generally render the person thereby inadmissible. However, if the criminal charges were related to the trafficking of a controlled substance (e.g., intent to sell), an admission following an acquittal/dismissal of the charges could nevertheless provide the US immigration official with “reason to believe” that the offence occurred and render the applicant inadmissible, notwithstanding the court’s disposition.
ii) UK Police Cautions/Warnings as “Admissions”
For an individual to receive a formal UK caution or cannabis warning under current policy, the individual must admit the offence to the police officer. In order for there to be a finding of inadmissibility based on the admission: (1) the criminal offence must be a CIMT or controlled substance violation, as defined by US regulations, and (2) the admission to the UK police officer must comply with the requirements set forth in the Matter of K.
The US Department of State’s policy regarding UK police cautions has not been consistent. On September 23, 1997, there was an Advisory Opinion from the Dept. of State that stated UK police cautions were “not an admission” for purposes of US immigration law.
In late 2013, the US Embassy in London requested new guidance from the US Department of State and began placing visa applications in which the applicant had UK police cautions in “administrative processing” until the new advisory opinion was released.
In February 2014, the Embassy began adjudicating the on-hold “UK caution cases” consistent with convictions and admissions. Although this implied that the US Department of State had issued its new formal advisory opinion to the US Embassy in London, the opinion has not been released to the public.
In April 2014, the US Department of State clarified to the American Immigration Lawyers Association that, although UK cautions are not convictions, they can still be “admissions” for purposes of inadmissibility, appearing to depart from its prior 1997 opinion. The Dept. of State stated that there must be a “case-by-case” determination, presumably because UK police officers are not trained in eliciting Matter of K admissions or US immigration law.
The US Dept. of State implied that a “case by case” analysis is required to determine whether, for example, the UK police policy at the time of the caution required an admission for the issuance of the caution, an adequate definition of the crime was provided to the individual prior to its issuance, or whether the admission was voluntary.
The US Dept. of State’s current policy appears to treat UK cautions as admissions, unless this type of evidence can be provided to show insufficient compliance with the Matter of K.
The current policy also means that individuals with UK police cautions who have traveled to the United States based on the Dept. of State’s 1997 policy may now need to obtain an exemption or waiver of inadmissibility in order to return to the United States.
It is important to note that even if a UK caution or warning is “spent” for purposes of UK law, it remains on the individual’s record under US immigration law: the mere elapsing of time does not remove a formal police caution or warning for purposes of criminal inadmissibility determinations.
V. Exemptions and Waivers of Criminal Inadmissibility
A finding of criminal inadmissibility is not the end of the road for a potential traveler to the United States. Depending on the visa being sought and crime(s) at issue, the applicant may be eligible for an exemption or a waiver of inadmissibility. The applicant should arrive fully prepared at his or her interview at the US embassy/consulate with succinct legal arguments and supporting documentation in favor of such exemption or waiver of inadmissibility applications.
Considering the way in which the US Embassy in London is now treating UK cautions, the prudent approach would be to anticipate that the Embassy will treat an individual’s UK caution as an “admission”, unless there is evidence showing that compliance with Matter of K was deficient. Because UK cautions are never “spent” for purposes of US immigration law, this new policy may have the effect of rendering previously authorized travelers to the United States inadmissible, absent an exemption or waiver application that was not previously necessary.
Criminal matters must be carefully addressed and analyzed before attempting to travel to the United States. The intersection of criminal law and US immigration law is complicated, requiring first an analysis of whether the crime at issue falls into the definition of a “CIMT” or “controlled substance” violation; whether there exists a “conviction”, “admission”, or – if applicable – “reason to believe”; and if so, whether any applicable exemption or waiver of inadmissibility can be pursued. It is advisable to seek legal counsel to properly assess and, if needed, to seek relief from these complex criminal inadmissibility grounds.