Can someone with a caution for possession of cannabis go on holiday to the USA?

December 4, 2011 4:24 PM

I was cautioned (not convicted) for possession of cannabis in 2003 in the UK. I understand that the USA is not very friendly towards people with drugs "offences" on their record and I'm wondering if I will have trouble travelling to Hawaii (via a four-day stopover in San Francisco) in the middle of next year.
posted by anonymous to travel & transportation (13 answers total)

I would be surprised if such a minor charge made a practical difference, but it might be worth placing a call to the embassy to find out for sure. From their site it appears that it may require you to apply for a visa ahead of time as opposed to using the visa waiver that UK citizens usually have (presuming you are a UK citizen).

Travelers with arrests/conviction(s)

Under United States visa law people who have been arrested at anytime are not eligible to travel visa free under the Visa Waiver Program(VWP); they are required to apply for visas before traveling. If the arrest resulted in a conviction, the individual may require a special restricted visa in order to travel. The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travelers with a spent conviction are not eligible to travel visa free; they must apply for B-1 or B-2 visas. If they attempt to travel under the VWP, they may be refused entry into the United States.
posted by Winnemac at 4:44 PM on December 4, 2011 [1 favorite]

Assuming you are a British citizen, and therefore intending to enter on the Visa Waiver Program you will be asked:

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 or immoral activities?

If you're being honest, the answer in your case is no. Call the US Embassy to find out what to do next.
posted by caek at 5:12 PM on December 4, 2011

It sounds like the OP has indeed been arrested for an offense involving a violation related to a controlled substance and should answer "yes."
posted by gingerbeer at 5:23 PM on December 4, 2011

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 or immoral activities?

Answering yes to this will likely cause you problems, I'll tell you that much.
posted by triggerfinger at 6:15 PM on December 4, 2011

A caution is not a conviction. So this rests on whether you were arrested or not before your caution.
posted by grouse at 6:56 PM on December 4, 2011

It's unclear to me how you would end up in Hawaii—if the US border officials think your cannabis use was an issue, you wouldn't get into San Francisco, I'd think.
posted by Blazecock Pileon at 7:17 PM on December 4, 2011

You need to read this page, particularly this warning "In the current climate, it is highly likely that the USA authorities will be aware of your personal details before you travel to the USA." I take that to mean "US authorities have access to our databases."

I'm not clear on one thing, though - were you necessarily arrested? My understanding is that in the UK arrest is a formal procedure: you would have been told that you were under arrest. Did anything like this happen to you?
posted by Joe in Australia at 8:58 PM on December 4, 2011

The discussion here (other threads too) seems to suggest that the UK caution is considered to be a conviction in the eyes of US immigration.

I would apply for a visa (or if not, at least talk to a lawyer?). I doubt US authorities have access to your UK police records (although Joe in Australia's link seems to suggest otherwise) so I'd put the probability they'd let you slip through on the VWP at about 99%. However, consider the remote possibility that for some reason you want to immigrate to the US in 10 years. In that case, having and disclosing a police caution from 2003 would be a non-issue (and impossible to hide), but having denied this on an ESTA form in 2012 would be immigration fraud and you would be in deep trouble.
posted by yonglin at 11:43 PM on December 4, 2011

I am not YOUR lawyer (therefore, this cannot be construed as legal advice, no attorney/client relationshipm blah blah, don't sue me), but I am an immigration lawyer in the States. Therefore, I've seen all the worst case scenarios. Sure, you can play the odds, and you might win, but if you lose, you will lose big time, and by that I mean "end up in a detention center in Arizona for a month or two even though you want nothing more than to be done with the United States forever, and why are they spending money on detaining you when you just want to leave" Ok, that's less than 1% chance, but it could happen. Here are my other thoughts:

1) Do *not* underestimate the capacity of US immigration to have access to foreign criminal records. ESTA was put into place to allow for more screening after all, and this country has already invested significant resources into computer systems at the border. I've represented several people who were traveling freely in and out for years, and didn't understand why they were suddenly in trouble. The laws didn't change, the technology did. Plus, the UK is a country that cooperates with the US on immigration issues, so they're probably handing over all sorts of stuff.

2) Do *not* underestimate the stupidity of US border officials. Of course, you entering on the VWP is legitimate immigration violation for reasons stated above. But once you've made yourself vulnerable by committing fraud (which is how they'll see it, no matter how minor a misrepresentation, and yes it could affect your ability to travel here again for any length of time for 10 years or more), you might end up with an officer who doesn't understand that a caution isn't a conviction, and be treated accordingly. If one officer writes down a mistaken analysis, that's going to be hard to get rid of.

3) On the other hand, it is more likely that your local US consulate is familiar with UK law since that's what they deal with all the time.

4) In US immigration law, even if someone doesn't have a conviction, they can be deemed inadmissible (i.e. no getting out of the airport) for "admitting the essential elements of a crime" But there's room for argument, plus I imagine that you might be able to get some sort of waiver anyway (I don't work much with people with non immigrant visas so I'm not as clear on this part). I also haven't worked with cautions, so I don't have specific knowledge of how they are treated- it could be a routine "ah right, we just stamp this box and you're good to go" or something more serious.

5) In sum: In my experience, people who try to avoid jumping through the flaming hoops of US immigration law are setting themselves up for potential disaster. It's maddening, because it means extra work for someone with a trivial violation, but better extra work than detention in Arizona or Texas (ok, most likely they would just put you on the next plane back to the UK but look at this if you want nightmare fuel: http://stateswithoutnations.blogspot.com/2010/09/kidnapped-canadian-part-v-ice-holds.html ) Talk to a lawyer if you can afford a consult, or try to get answers from the consulate, since they must have seen this before.

Good luck.
posted by t_rex_raaar at 4:56 AM on December 5, 2011 [7 favorites]

If you're being honest, the answer in your case is no. Call the US Embassy to find out what to do next.

Sorry, I meant 'the answer in your case is "yes"'!
posted by caek at 5:11 AM on December 5, 2011

Something like this happened to me before a Vancouver, BC -> San Francisco, CA flight. The US immigration officer crawled up my ass for about three hours. Yes, I did have an arrest record for simple marijuana possession; however, the charge was dropped long before the trip. That didn't seem to make any difference to the officer. It's a long story so I'll just recommend a few things: take a copies of your housing information (rental contract/mortgage info), contracts if self-employed, and any documentation pertaining to your vacation (room booking, flight itinerary and tickets). The immigration officer may take issue with your police caution and give you an extra difficult time. That said, if you can prove this is ONLY a vacation and you have every intention of leaving the magnificent US of A (god bless her) all should be well.
posted by professorpotato at 1:15 PM on December 5, 2011

You need to talk to the embassy. Applying for a B-2 visa will be a hassle -- you'll need to do it in good time, it'll require an interview in London (or Belfast, if you're in NI), a police certificate, and most likely a drug test (see related discussion on BritishExpats), but you really don't want to be gambling with an extended ban on arrival in SF.
posted by holgate at 2:23 PM on December 6, 2011

And think of it this way: are you in a better position to make your case in the busy arrivals hall of a US airport, with a long queue and desk officers who are on guard for people telling fibs, or in the embassy, with all the relevant documentation, showing a willingness to be honest about your past?
posted by holgate at 2:51 PM on December 6, 2011 [1 favorite]