ON December 16, 2015, a female Australian lawful permanent resident was allowed to take her oath of allegiance and granted U.S. citizenship.
Previously, by Decision dated June 25, 2015, her application for naturalization was denied by USCIS, after appearing for an interview on her eligibility thereon on February 11, 2015.
The denial was based on her conviction on October 1, 2013 for public intoxication in violation of Section 647(f) of the California Penal Code, for which she served sentence of 1 day in County Jail and paid a fine of $699.23.
Although admittedly a petty offense, the Decision stated that: “This offense constitutes an unlawful act committed within the five-year statutory period immediately preceding the filing of your application for naturalization (on October 8, 2014) that adversely reflects upon your moral character and demonstrates a lack of reform of character.”
The Australian young lady retained the services of this Author to appeal the aforesaid Decision, by requesting a hearing on Form N-336 within 30 calendar day of service of the Decision on July 22, 2015, by mail.
Public Intoxication Is Not A Crime Involving Moral Turpitude:
Public Intoxication is punishable under Section 647 of the California Penal Code as misdemeanor disorderly conduct. Indeed, paragraph (f) thereof refers to a person found in any public place under the influence of intoxicating liquor or drugs, in a condition that he or she is unable to exercise care/or his or her own safety or the safety of others, or interferes with or abstracts or prevents the free use of any street, sidewalk, or other public way.
When the young Australian lady was arrested by the Ventura County Sheriff, she “was (allegedly) intoxicated and unable to care for herself.” But she did not commit a crime of violence against another, nor was she a danger to another person.
A violation of Section 647 (f) of the California Penal Code is not a crime involving moral turpitude because it does not contain elements of fraud, theft with an intent to cause great bodily-harm, nor lewdness, recklessness or malice.
Indeed, other crimes such as simple assault or battery, and even malicious mischief are not crimes involving moral turpitude.
Prior Criminal Convictions Were Outside 5-year Period:
Admittedly, the young Australian lady had driving under the influence convictions, but was outside of the 5-year good moral character period of 2010 to 2015.
She had complied with all the probationary conditions and other orders and paid all fines and fees.
And although the USCIS can inquire into time periods beyond the 5 years, under INA Section 316(e), its reliance on acts outside the statutory period must be tied to current moral conduct.
Extenuating Circumstances and Rehabilitation:
Medical records of the young Australian lady show that in the past she has had mayor depressive disorder, alcohol dependence, and eating disorder, bipolar disorder, among other symptoms.
These were extenuating circumstances for prior criminal convictions.
Presently, she attends Alcohol Anonymous and had been alcohol-free since 2013. She is a young married woman who is realizing her potentials. She teaches tennis and manages a tennis shop.
Apparently, USCIS reversed itself without scheduling a hearing on its Decision denying naturalization. It granted U.S. citizenship to the young Australian lady based on the Request for Hearing (Form N-336) and the Author’s Brief in Support thereof.
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The Author, Roman P. Mosqueda, is a SuperLawyer for Immigration in Southern California for 2014-2016. He is also a long time member of the California Public Defenders Association as a criminal defense attorney for over 20 years. Visit his website at www.mosquedalaw.com or call (213) 252-9481 in his Los Angeles law offices for questions, comment and consultations.
