ESTA or visa after past arrest and NFA (for a non CIMT offence) [duplicate]

Question

I'm a UK citizen looking to travel to the US for the second time. I earlier travelled to the US almost 12 years back on a different passport on a B1/B2 visa before acquiring UK nationality.

I have been reading about the entry requirements on multiple forums and I am seeing multiple conflicting rules/advice from different places regarding whether or not I may be eligible to apply for an ESTA to travel under the Visa Waiver Program.

I am in a situation when I was previously arrested in the UK around 6 years ago and released with "no further action" (NFA) as the outcome. The reason given for the arrest was common assault/battery based on a malicious false allegation of my ex.

I believe that I meet all other requirements to travel under the VWP using an ESTA

Advice re: non eligibility to travel under the VWP using an ESTA while being arrested in the past:

• On the UK Government's website it is stated "You cannot apply for an ESTA visa waiver if you: have been arrested (even if the arrest did not result in a criminal conviction)"

• The website of the US Embassy & Consulate in the UK states: "We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, [...], attempt to travel visa free under the Visa Waiver Program."

• The US Department of State's Bureau of Consular Affairs website lists the requirements for using the VWP. It does not mention anything about arrests.

• The FAQs of the US Customs and Border Protection website indicates that the traveller will be asked eligibility questions only about arrests and convictions for certain crimes

• Under the section "Who is eligible to submit an application?" in the FAQs of the ESTA area of the US Customers and Border protection website, I seem to again meet all of the requirements. Nowhere is an arrest record mentioned.

• ESTA application asks only about arrests or convictions for crimes that resulted in serious damage to property, or serious harm to another person or a government authority.

Context

Aside from the aforementioned arrest, I'd likely be considered to be in good standing in most aspects of life.

I hold a Master’s degree and work as a skilled professional in the UK from last 17 years and work with a multinational corporate with global presence and offices in the UK. I have a good credit rating and good standing in the community etc.

I would like to proceed with honesty and in good faith and I have no intention of misrepresenting anything.

I have checked rules specified under 9FAM 302.3 (U) INELIGIBILITY BASED ON CRIMINAL ACTIVITY, CRIMINAL CONVICTIONS AND RELATED ACTIVITIES - INA 212(A)(2), given as in my case the alleged offence was Common Assault - Summarily Only / BATTERY with disposal as NFA and no other aggravating factors, there was no injury and no weapons, no harm, no admissions etc. and was released same day after interview.

I have no charges, cautions, convictions, warnings, reprimands or criminal record.

Though I would prefer applying for an ESTA as the travel is scheduled in next 4-5 weeks, while answering "no" to that specific eligibility question of serious harm as I do not believe that I would need to answer affirmatively but I am really unclear due to the conflicting information available.

(I have a past SAR from ACRO with PNC record and also the police report of alleged incident) and having checked INA rules my understanding (IMO only) it doesn't falls under CIMT and will be equivalent to simple assault under US immigration law) Question

Given the conflicting information available online about ESTA/visa in such situations, do you suggest that I would qualify for travel to the US under the VWP with an ESTA?

Can someone please suggest what would be the best course of action i.e. applying ESTA or going via visa route as unknowingly I have an already booked travel in near future and believe the visa wait times are quite longer though meanwhile, I have also applied for ACRO police certificate in case a visa route is required?

Although I think I can apply ‘NO’ to the specific eligibility question re: serious harm on ESTA form but any confusion/misunderstanding at my part can be construed as dishonesty and then will create a future travel problems.

In case if I have to travel again or emigrate to the US in future, therefore I am bit cautious and don’t want to jeopardise any future travel. Any prompt response on my query would be really appreciated.

Answer 1

In terms of protecting your future admissibility to the US, you can apply for ESTA and answer "yes" to the question about arrest. The ESTA will probably be refused, but there's a chance that it won't be, and the negative impact of the refusal is virtually nothing beyond the modest application fee.

It may be that you're right and that you would be legally justified in answering "no" in these circumstances, but you can't be sure that the Department of Homeland Security would agree, and if they don't, you may end up having to go to court with them. For example, you mention the possibility of immigrating, so this could lie dormant and be rediscovered later during that process.

Note that the ESTA question isn't about crimes involving moral turpitude. The fact that a crime might not qualify as one involving moral turpitude doesn't mean that it isn't one that resulted in serious harm to another person. And I have absolutely no idea what the DHS position is on arrests for crimes that didn't actually occur (as seems might be the case here).

Also, the Foreign Affairs Manual is discussing grounds of inadmissibility. An arrest for any crime, without a conviction or evidence that the applicant actually committed the crime, will never make you inadmissible. But it does require you to answer "yes" to the question if the crime for which you were arrested meets the criteria (where I note again that it's not clear what that means with respect to an alleged crime that never occurred). The ESTA question is supposed to identify people who might have committed a crime that makes them inadmissible, so they can be examined more closely to determine whether they actually did or not. Therefore the threshold for an affirmative response to the question is lower than for a determination of inadmissibility.

You can apply for ESTA, expect that it's likely to be refused, and if it isn't, great, you've had a pleasant surprise. If it is refused, you can apply for a visa.

If time is tight and you'd rather not wait the 72 hours that might be required for the ESTA determination, you can just apply for a visa. If it is true that consular officers look on such applications with suspicion, they aren't likely to be more suspicious of the application than they would be after an ESTA refusal, so long as you explain that you suspect that your ESTA is likely to be refused and are applying directly for the visa because you didn't want to spend time on ESTA because time is short.