Analogous or Not?
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?