Analogous or Not?
posted by Gerard Magliocca
Suppose that a family enters an area of land when they have no legal right to do so. They stay and live there for years using the property for lawful purposes (apart from their continuing trespass). At some point, the actual owner or authority returns and tries to kick them out.
Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse Possession: Common Law Amnesty For Long-Residing Illegal Immigrants in the United States,” 22 Geo. Immigr. L. J. 105 (2007).
What justifies the disparate treatment given to these acts of illegal entry? One thought is that the wrong of illegal immigration is greater because national territorial integrity is a more substantial interest that an individual’s real property. But that can’t be true, since adverse possession divests the property owner entirely, whereas a single illegal immigrant does negligible harm to the United States.
Perhaps the issue is the frequency of the behavior. In other words, adverse possession rests on an unstated assumption (that might soon be tested with lots of homes sitting empty in foreclosure) that the doctrine is rarely invoked. If illegal immigration were uncommon, folks might be more inclined to extend amnesty under appropriate circumstances. Likewise, if squatting was rampant, maybe adverse possession would be eliminated (”Down With Property Amnesty”).
Or maybe the answer is that adverse possession is a common-law doctrine while immigration is governed by a dense thicket of statutes. Put another way, if judges were left on their own maybe they would have crafted something like adverse possession for illegal immigration, but they cannot because Congress takes an active role on this subject.
What do you think?
April 15, 2009 at 4:51 pm
Posted in: Immigration
Print This Post
Responses (2)
Dave - April 15, 2009 at 8:59 pm
Interesting analogy. One point of disanalogy is that ownership of land is zero-sum but citizenship is not. The law has to make a decision about which person gets to stay on the land: the original owner or the long-term trespasser.
This enables a utilitarian rationale for AP that doesn’t arise in the immigration/amnesty context. The law has AP in part to punish lazy landowners, and to reward productive uses of land (even if the latter amounts to trespass).
Since there is no “lazy landowner” to punish, and similarly no zero-sum in which the adverse possessor compares favorably to the original owner from the perspective of productive land use, this rationale doesn’t seem to map onto immigration.
Chris - April 16, 2009 at 7:59 am
Interesting analogy–not sure the notoriety element is there, though. Also not sure about the dense-thicket-of-statutes disanalogy, since adverse possession is generally governed by statutes of limitation for ejectment, I think.
Leave a Reply