Cautionary Tales

Prior to 2014, a police caution had been viewed by US consular and immigration officials as little more than a warning and therefore not a basis for finding a visa applicant inadmissible to the United States. Not so today.

Individuals with arrests disposed of through police cautions may be considered to have made an official admission of guilt upon which an inadmissibility finding may be based . This means the visa applicant must obtain a waiver of inadmissibility in order to receive a visa. Waivers typically take about 20 weeks to process.

Why the change of heart? Officials from the Visa Office recently offered the following explanation to the American Immigration Lawyers Association (AILA):

The question of how to treat police cautions is a complicated issue that has been the subject of extensive study by Post, and consultation with both the Visa Office and CBP.

The Visa Office agrees with AILA that such cautions do not constitute convictions for the purpose of making INA 212(a)(2) ineligibility determinations. INA 101(a)(48)(A) defines a conviction as a formal judgment of guilt entered by a court, or a finding of guilt by a judge or jury. Since no court or judge is involved in police cautions, they would not be convictions for this purpose.

Even if a caution does not constitute a conviction, however, the existence of a caution could provide the basis for an ineligibility finding as an admission to either a crime involving moral turpitude, or to a violation relating to a controlled substance. In Matter of K, 7 I&N Dec. 594 (BIA 1957) and other administrative and judicial decisions have established factors that must be met for an admission to provide a basis for a 212(a)(2) ineligibility determination. These factors are cited in the Foreign Affairs Manual at 9 FAM 302.3-2(B)(4).

This FAM Note includes a provision requiring that: “The applicant is given a full explanation of the purpose of the questioning, is placed under oath and the proceedings are recorded verbatim”. This provision is a long-standing internal administrative requirement that applies only to consular officer adjudications. The requirement that the applicant be placed under oath and that the proceedings be recorded is not required by In Matter of K or other administrative or judicial decisions. Therefore, police cautions can form the basis for an ineligibility determination based on an admission even if there was no taking of an oath or record made of the proceedings. There are different types of cautions, including conditional cautions and cannabis warnings. U.K. authorities have issued different guidelines over the years governing procedures for cautions, conditional cautions, and cannabis warnings. Therefore, the determination as to whether a police caution would have constituted an admission for 212(a)(2) purposes has to be made on a case-by-case basis after the consular officer weighs all the evidence available in that case. A consular officer can find an applicant ineligible on the basis of an admission only if there is evidence that the criteria established in U.S. administrative and judicial case law were satisfied. That evidence may reflect the procedures followed by U.K. authorities at the time as well as any relevant information subsequently collected. (Emphasis added).

What does it all mean?

It means what it says: notwithstanding years of interpreting cautions as exercises of prosecutorial discretion by UK police not to prosecute someone for an offence, the US Government has had second thoughts. Things change.

The highlighted language in the statement above draws attention to the recognition by consular officials that a caution issued today meets different standards than those issued in 2007 (The UK Home Office issued guidance in 2008 requiring that a written explanation of the caution be given prior to accepting a caution; prior to July 2008, this was not the case).

Based on recent experience, it appears that cautions from July 2008 onwards may amount to admissions of guilt for visa purposes.

  • For nonimmigrants, this means a waiver of inadmissibility will likely be required.

  • For immigrants, this also means a waiver will be required -- if available (n.b. the only controlled substance offence for which a waiver may be available to an immigrant visa applicant is a single instance of possession of 30 grams or less of marijuana--any other controlled substance-related offence cannot be waived for an immigrant visa applicant).