Sunday, January 26, 2014

107th Installment. Is being an unlawful immigrant moral turpitude? — California’s Sergio C. Garcia matter

Plutocratic open-borderism contended only with authoritarian law-and-orderism when California’s supreme court—the first in the United States—decided to admit an illegal immigrant. (See In re Sergio C. Garcia (2014) _ Cal.4th _.) The Supreme Court parroted the open-immigration line of California’s economic and political elites; the only opposition, an amicus brief by a former State Bar prosecutor, reflexively counterpunched that a lawyer must obey all laws. Both avoided serious ethical analysis, pandering to politics.

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.


Anonymous said...

It should be noted, however, that Mr. Garcia came to the U.S. illegally when he was a baby at the behest of his migrant farmworker father. I don't see how that translates into an act of moral turpitude by him.

"It was not Sergio Garcia's decision to head north. His father made that choice.
He was 17 months old when a couple with U.S. citizenship carried him across the border from Mexico, pretending he was their baby. It had somehow been arranged by Garcia's father, Salvador, who was in Northern California eking out a living by picking almonds." -NY Daily News, 10/15/13

Stephen R. Diamond said...

Nobody is saying that he committed any act of moral turpitude at 17 months of age! The case was no doubt selected because that red herring would obfuscate the issues.