Can You Travel to the United States Without a Visa After a Non-Prosecution Disposition In Japan?
A Comprehensive Legal Guide
Many individuals with a prior arrest record still need to travel to the United States for business trips or personal travel. As a result, we receive numerous inquiries regarding U.S. visa requirements. This article specifically addresses a common question: Is it permissible to travel to the United States via ESTA without disclosing an arrest that resulted in a non-prosecution disposition?
What Is a Non-Prosecution Disposition?
A non-prosecution disposition (fukiōso shobun) is a decision by a prosecutor not to bring criminal charges against a suspect. Even if a person has been arrested, a non-prosecution disposition results in their release without trial and without a criminal conviction being recorded. Crucially, no criminal record (zenka) attaches to the individual.
However, despite the absence of a conviction, a non-prosecution disposition does not necessarily prevent complications at U.S. ports of entry, for reasons explained below.
The Japan-U.S. Preventing and Combating Serious Crime (PCSC) Agreement
Japan and the United States are parties to the Preventing and Combating Serious Crime (PCSC) Agreement, a bilateral treaty established for two primary purposes:
1. To maintain the Visa Waiver Program between the two countries; and
2. To enable the sharing of information for the prevention and investigation of serious crimes.
Following the September 11, 2001 terrorist attacks, the United States required all Visa Waiver Program countries to enter into PCSC agreements. Japan’s agreement entered into force on January 5, 2019.
Under this framework, data relating to “serious crimes” is shared between the two nations. Importantly, individuals subject to a non-prosecution disposition may still be affected by this data sharing.
Why a Non-Prosecution Disposition May Still Cause Issues at the U.S. Border
Under the PCSC Agreement, “serious crimes” are defined to include offenses punishable by:
• The death penalty, life imprisonment, or imprisonment of three years or more; or
• Imprisonment of one year or more for any of 34 enumerated offenses, including terrorism, murder, arson, fraud, and bribery.
While this may seem unrelated to a non-prosecution disposition or wrongful arrest, the practical reality is more complex. When U.S. authorities submit a non-identifying inquiry to Japan, Japan’s National Police Agency may check its entire fingerprint database in response. As a result, the following individuals may all be subject to fingerprint matching:
• Persons convicted of a crime;
• Persons who received a non-prosecution disposition;
• Persons acquitted at trial; and
• Persons whose fingerprints were incidentally collected at a crime scene.
Consequently, any individual who was arrested in Japan and had their fingerprints taken faces a meaningfully elevated risk of having their arrest history flagged during U.S. entry inspection.
Official Position of the U.S. Embassy
The U.S. Embassy’s official website states explicitly that the following individuals are ineligible to use the Visa Waiver Program (ESTA):
“Persons who have been arrested, with or without a conviction, persons with criminal records, persons who have been granted a pardon or amnesty, persons with serious contagious diseases, persons who have previously been denied admission to or deported from the United States, and persons who have overstayed their authorized period of admission under the Visa Waiver Program are not eligible to use ESTA.”
In plain terms, even a non-prosecution disposition does not render an individual eligible to use ESTA if they have a prior arrest record. If one has an arrest record, they must disclose this on their ESTA application and most of the times, this will result in an ESTA denial. In this case, the applicant must apply for a visa at the US embassy in Japan.
Recommended Course of Action
For individuals with a non-prosecution disposition who wish to travel to the United States, we strongly recommend making a full and honest disclosure and applying for a U.S. visa through the standard consular process. This approach avoids complications at the port of entry and allows for a more secure and predictable travel experience.
Summary
• A non-prosecution disposition does not erase an arrest record.
• The Japan-U.S. PCSC Agreement creates a mechanism by which fingerprint data may be shared with U.S. authorities, regardless of prosecution outcome.
• The U.S. Embassy explicitly advises that persons with any arrest history are ineligible to use ESTA.
• For peace of mind and legal compliance, applying for a U.S. visa through the consular process is the advisable course of action.