US visa application: Can you still get an Esta if you've taken drugs?

Helen Coffey

After a British tourist was banned from entering the US for 10 years over a text referring to taking cocaine, here’s everything you need to know about how previous drug offences could affect your travel plans.

What happened?

Isabella Brazier-Jones travelled to Los Angeles with her friend in March to embark on a two-month trip, but the pair were stopped by Customs officials who suspected they were planning to overstay their visas.

Brazier-Jones, 28, and her companion Olivia Cura, 26, were questioned about their plans and finances. Cura was released after an hour or so, while Brazier-Jones’s bag and phone were seized.

Brazier-Jones said she was subjected to a full body search and held in a cell with four other women, an experience she described as “torture”.

Meanwhile, officials searched her phone and found a text that suggested she had taken cocaine.

The former private chef and aspiring actor admitted to having taken the class A drug in 2017, after which she was deported to the UK and told she was banned from visiting the US for a decade.

Why would admitting to drug use lead to deportation?

The US regards admission of drug abuse as evidence of “moral turpitude” – a legal concept in the United States and some other countries that refers to “an act or behaviour that gravely violates the sentiment or accepted standard of the community”.

It is no longer grounds for outright exclusion from America, as John Lennon experienced for a time. However, the US Electronic System for Travel Authorization (the “online visa” known as Esta) asks applicants whether they have ever taken drugs in the past under the “eligibility” section: “Have you ever violated any law related to possessing, using, or distributing illegal drugs?” Answering yes to this question means it is likely the applicant will be denied an Esta.

Presuming Ms Brazier-Jones answered “no” to this question, the search of her phone found this assertion to be false, meaning she lied on the form.

“Lying on the Esta represents separate grounds of inadmissibility to the USA under the material misrepresentation or fraud provision,” Ioana Hyde, US Immigration Attorney at American Immigration Law Office Ltd, told The Independent. “If this finding is made, then a person subsequently applying for a visa to the USA may well be denied due to misrepresentation or fraud.”

Kaitlin Davies, a solicitor with US immigration specialists Davies Legal, adds that Brazier-Jones’s own admission of guilt may have been a factor in the severity of the penalty.

“On strict application of the law, social media posts regarding drug use should not be sufficient, in the absence of more evidence,” she said. “Had Ms Brazier not admitted controlled substance use to the interviewing officer, it is possible that the outcome could have been different.

“The likely ground on which Ms. Brazier was banned for 10 years, although we cannot be certain, would relate to misrepresentation of her prior ‘violation [of] any law related to possessing [and/or] using... illegal drugs’.

“Misrepresentation and fraud often form the basis of lengthy bans.”

What happens if I lie on my Esta application?

Nacro (previously the National Association for the Care and Resettlement of Offenders) provides an answer on its survey about declaring a criminal record when travelling abroad:

“If I lie on the Esta form, will I be found out?”

“The short answer is: probably not. The US authorities do not have access to criminal record information held on the Police National Computer. However, if the authorities have particular concerns about an individual, they may request criminal record information from the Home Office by making an application through Interpol. Such requests, however, are rare.”

However, since 2018 US border agents have had the authority to seize and search individuals’ phones and electronic devices “without probable cause” – ie they don’t need to provide a reason for doing so. Refusing to hand it over along with your password could mean you’re denied entry to the country regardless.

In Ms Brazier-Jones’s case, they found reference to previous drug taking, which along with her admission of guilt was enough to bar her from the country for a decade.

Kaitlin Davies says that those who have previously taken drugs should consult an immigration lawyer before applying for a US visa.

“It is notable that even if an applicant has previously used or abused substances, and is therefore deemed ineligible to travel on Esta, they may still successfully apply for a B-1/B-2 Temporary Visitor visa, as we do for hundreds of clients, some with extensive drug use and/or convictions,” she said.

Should I delete incriminating pictures or messages from my phone?

Experts advise checking what information is stored on your phone and electronic devices prior to travel.

Ioana Hyde says: “In recent times, I have spoken to individuals who ran into difficulties at the US border after being sent images through WhatsApp or similar messaging apps where images received from others are automatically downloaded and stored on the device without the user’s specific intent to save a photo.

“The photo showed possible drug use or other potentially illegal activities which in turn resulted in difficulties to the applicant for entry into the USA, including in the worst case being summarily removed which then carries a five-year bar from entering the USA unless a waiver (additional permissions) can be secured.”

Davies also recommends reviewing your social media before travelling to the US. “Anything, drug-related or otherwise, including expressions of ‘moving to the US’ or the previous famous example of a British citizen writing about ‘destroying the US’ in colloquial terms, may cause problems at the border,” she says. “In the current climate, applicants should be mindful that posts and photographs can be misinterpreted.”