US visa applicants must declare ‘spent’ criminal convictions
Bermudians seeking to obtain visas for entry to America must notify US authorities of any criminal convictions — even if those convictions are spent.
Michael DeSilva, the Ombudsman, highlighted the issue after an investigation into a complaint against the Bermuda Police Service.
The complainant had applied for a US visa in 2022. Police informed US immigration officials that he had been convicted of assault, even though the offence had taken place at least seven years earlier.
Under the island’s Rehabilitation of Offenders Act 1977, criminal convictions that are more than seven years old are treated as “spent”, and “will not be admissible as evidence in proceedings or disclosed on a conviction record check form”.
But the investigation into the complaint concluded that the US was not obligated to follow Bermuda law — and that under US regulations, visa applicants had to declare any criminal record.
The investigation began in February and was conducted by Canadian barrister Barry Fleming, KC.
In a report summarising the investigation’s findings, Mr DeSilva wrote: “There were two aspects to his complaint. First, the transmission of information about his spent criminal conviction was unlawful.
“Second, if the transmittal of this information was lawful, the BPS treated him unfairly, by not informing him that it would reveal the conviction during the background check application process.
“The applicant was convicted in Bermuda over seven years ago of the offence of assault causing bodily harm and received a conditional discharge with two years of probation, plus an order to participate in anger management and parenting skills training. All evidence suggests that he fulfilled these conditions.
“In 2023, he was refused a ten-year non-immigrant visa by the US Consulate in Bermuda on account of his criminal conviction.
“His application for the visa included a BPS criminal records check. The applicant complained to this office in August 2023 that the BPS sent a sealed conviction report to the US Consulate with his conviction record, but a copy he received in response to a second application at a later date did not list the conviction.
“His position is that, as his conviction was spent, it should not have been included in the information provided by the BPS to the US Consulate. Because it was included, he asserts he was denied a visa.
“The BPS position is that, having regard for the context in which the applicant applied for his background check, it acted lawfully and in keeping with its goal of providing all things necessary to the US Consulate to facilitate an application for a visa.”
The Office of the Ombudsman handled more than 200 complaints and inquiries last year.
In a statement accompanying his annual report, Mr DeSilva said: “During 2023, the office received 216 new cases, comprised of 193 complaints and 23 inquiries.”
He said 96 cases were carried over from 2022, making a caseload of 312 for the year.
“The office made 22 referrals to more appropriate authorities. Sixty-five complaints were disposed of after making inquiries and/or resolving the issues informally, six of which were abandoned or withdrawn by the complainant. By the end of the year, 62 complaints were carried into 2024, marking a reduction by one third over the previous year. Eighty per cent of the total year’s casework was closed by December 31.
“Much of the work done in 2023 was driven by the priorities in our strategic plan to increase the impact of our work and raise our profile in the community.
“We met with several public authorities and held round-table discussions to improve communication and understanding of our role. We hired a local marketing agency to increase our social media presence, and we used ‘pop-ups’ to engage directly with members of the public.
“My colleagues and I encourage everyone to read our annual report to learn more about our work, along with my first special report. We invite you to share your feedback with us, or contact us directly if you have a complaint or just a few questions to ask.”
The Office of the Ombudsman can be contacted by e-mail at contact@ombudsman.bm or by calling 296-6541.
Mr DeSilva, a former Commissioner of Police who appointed Mr Fleming to carry out the investigation because of his former role in the BPS, noted that the investigation found no maladministration.
He wrote: “The US visa application process requires applicants to disclose all previous convictions, whether spent or not.
“In other words, even if the BPS did not include the spent conviction on the conviction records check form, the US Consulate requires the applicant to disclose it.
“Further, the US Consulate is not subject to local legislation and may require the disclosure as well as the arrest record as it does in all other jurisdictions.”
That analysis was backed by the US Consulate in Bermuda.
In a statement, a spokeswoman for the consulate said: “The authorities are not legally bound to inform the US of convictions.
“Rather, the Bermudian himself or herself who is requesting to enter the United States is required to truthfully answer whether they have ever been arrested and/or convicted, regardless of when that arrest and/or conviction occurred, and regardless of the final disposition of the case.
“If the applicant for entrance to the United States has been arrested and/or convicted, the applicant him or herself is required to provide the details of that arrest and, if any, that conviction if they would like to continue with the process of applying for the visa.
“If they do not want to provide the details, they are under no obligation to. However, their visa application will not proceed.
“The visa applicant requests this information directly from the authorities, who then provide that information on those arrests and/or convictions to the consulate in furtherance of the traveller’s application to enter the United States.”
Although Mr DeSilva concluded that the complaint was without merit, he did thank the complainant for highlighting the issue, noting that it had been “the impetus for positive change”.
He wrote: “The BPS advises that it is in the process of providing standardised guidance to its officers that will ensure criminal record information shared with the US for the purpose of visa applications will be first communicated with applicants, with consent forms being signed.
“The BPS has also shared its intention to amend its guidance note to include an explanation of what would be included on the conviction record check form.”
• To read the Ombudsman’s special report in full as well as the annual report, see Related Media
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