• Whether anticipatory bail on an ongoing case counts as arrest for US Visa application

I am applying for B1/B2 visa for my father to visit my sister in US. He is a retired govt employee and recently he was summoned to court on multiple charges on a bunch of officers. Sections are 170, 409, 417, 420, 427, 465, 466, 468, 471, 477A, 34, 371 PC. However he had anticipatory bail and he was never arrested. We know that he needs to take court permission for foreign visit. But the question is US visa application form DS160 asks "Have you ever been arrested or convicted for any offence or crime, even though subject of a pardon, amnesty, or other similar action?”

We have to answer with a yes or no. Should I answer with yes or no, considering he has never been arrested (but on anticipatory bail)?
Asked 1 year ago in Criminal Law
Religion: Other

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9 Answers

No you need to Explain the authority that pending CR is not a criteria to reject the same till you are convicted 

Prashant Nayak
Advocate, Mumbai
32859 Answers
209 Consultations

1)no . your father has never been arrested or convicted 

Ajay Sethi
Advocate, Mumbai
97493 Answers
7881 Consultations

Answer in NO

Gaurav Ahuja
Advocate, Faridabad
75 Answers

Answer is NO.

 

Yogendra Singh Rajawat
Advocate, Jaipur
23010 Answers
31 Consultations

- If the anticipatory bail was granted unconditionally , and the court has not directed him to inform the court before going abroad, then he can travel US without getting permission of the court. 

- The Delhi High Court has permitted an accused in a money laundering case to travel abroad for admission of his son, observing that a person should not be denied such “special moments of small pleasures in life” even if he is accused and facing trial.

- Since , he was not arrested in the said offences , then you can mention as NO 

Mohammed Shahzad
Advocate, Delhi
14758 Answers
224 Consultations

Dear Client,

The US Department of State defines "arrest" as "being taken into custody by law enforcement officers." Anticipatory bail is a type of bail that is granted before a person is actually arrested. So, technically, your father was not arrested. However, he was still taken into custody by law enforcement officers, which could be considered an arrest for the purposes of the US visa application.

The decision of whether or not to answer "yes" to the question of whether your father has ever been arrested is a difficult one. On the one hand, you do not want to provide false information on the visa application. On the other hand, you do not want to jeopardize your father's chances of getting a visa by answering "yes" to a question that could be interpreted as an arrest.

If you are unsure of how to answer this question, it is best to consult with an immigration office. They will be able to advise you on the best course of action based on the specific circumstances of your father's case.

  • The consular officer who interviews your father will be looking for any reason to deny his visa application. If they see that he has been taken into custody by law enforcement officers, even if he was not actually arrested, it could raise a red flag and make them more likely to deny his visa.
  • If your father answers "yes" to the question of whether he has ever been arrested, he will have to explain the circumstances of his case to the consular officer. This could be a difficult and time-consuming process.
  • If your father answers "no" to the question of whether he has ever been arrested, and the consular officer finds out that he was actually taken into custody by law enforcement officers, his visa application could be denied.

Anik Miu
Advocate, Bangalore
10382 Answers
121 Consultations

Yes, When applying for a visa, individuals will be required to disclose criminal history, if any and provide police clearance certificates. The authorities of the country to which an individual is applying for a visa will take the criminal case into consideration when assessing the individual's application. Any concealment would debar him from future prosperities and also cancellation of passport etc.

Siddharth Srivastava
Advocate, Delhi
1453 Answers

You have to answer with Yes, since anticipatory bail has been obtained. 

Shashidhar S. Sastry
Advocate, Bangalore
5457 Answers
330 Consultations

Even if your father was granted an anticipatory bail, he had to surrender before court to obtain regular bail subsequently, therefore this surrender itself will be considered as a  judicial custody  even though the duration of custody is for a very short period.

There was no necessity for him to be enlarged on bail if there was no offence charged on him or a FIR was registered against him

In the given circumstance it would be always better that he discloses the facts in the application for visa. 

If the visa is rejected he should consider himself lucky that he was not subjected more drastic legal actions at a later date when the authorities found him to have lied or suppressed about his pending criminal case. 

T Kalaiselvan
Advocate, Vellore
87695 Answers
2355 Consultations

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