The Garcia court’s moral-turpitude analysis of
illegal presence was cursory. The seminal case delimiting the moral-turpitude
standard had exonerated candidate Hallinan of bad moral character by exempting
two categories of alleged wrongdoing: Hallinan had participated in civil
disobedience supporting the civil-rights movement, and he had been in various
physical scrapes. (See Hallinan v.
Committee of Bar Examiners of State Bar (1966) 65 Cal.2d 447.) These
categories correspond to the main instances of serious illegal conduct deemed,
in California and most jurisdictions, not
to constitute moral turpitude: disobedience to the law for idealistic reasons
and “intemperate resort to fisticuffs.” (See, also, Schware v. Board of Bar Examiners (1957) 353 U.S. 232.)
To
excusable idealism and volatile conduct, the Hallinan court contrasted five offenses that always demonstrate
moral turpitude: fraud, perjury, theft, embezzlement, and bribery. Their
commonality is that they bear on “the individual's manifest dishonesty.” The Hallinan court had enumerated the five
offenses to provide basis for analogy, but the Garcia court merely noted that illegal immigration isn’t on the
list, and (having sufficient sense not to analogize to civil-rights activism) the
court analogized Garcia’s illegal presence to Hallinan’s fisticuffs. Had the Garcia court followed the Hallinan court in explicitly
characterizing “fraud, perjury, theft, embezzlement, and bribery” as offenses
involving dishonesty, it could not easily reach its conclusion that illegal
immigration does not constitute moral turpitude.
The Garcia court didn’t analytically compare illegal immigration to crimes of
a “fraudulent nature,” on the one hand, or, on the other hand, to idealistic
transgressions or to acts showing “a quarrelsome disposition”
and “a hasty and ungoverned temper.” (Hallinan,
supra, at p. 472.) Had it made the
comparison, it would be obvious that illegal presence does not resemble brawling
and does resemble theft: both illegal immigration and theft involve illegal
appropriation of resources. Violating immigration laws isn’t victimless, since these
laws are resource restricting. An example of how immigration laws restrict
resources is afforded by Garcia’s admission that he, at least once, had
obtained employment by misrepresenting his immigration status. (Garcia,
evidently, wasn’t expected to show “remorse”
regarding injury to the applicant who would have gotten the job if Garcia hadn’t
lied.)
Illegal-immigration’s best analog is tax
evasion. To be guilty, one need not tell express lies. (In re Hallinan (1954) [different
Hallinan] 43 Cal.2d 243 [income-tax evasion with intent to defraud is moral
turpitude].) Like illegal immigration, no one deems tax evasion
victimless despite that the individual victims of the fraud can’t be identified.
Both involve a dishonest failure to satisfy legal obligations, with the motive
that the wrongdoer appropriate resources lawfully belonging to others.
The Garcia
court emphasized that illegal presence isn’t itself a crime (as, it also pointed
out, neither was Garcia’s driving without license or insurance coverage). But
the Stephen R. Glass matter shows that, just as crimes aren’t necessarily acts of moral
turpitude, acts of moral turpitude aren’t necessarily crimes.
