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.