In June 2016 I wrote an article describing a viable compromise regarding the “terrorist watch list” that would give Democrats what they want — allowing the list to be used to block, albeit temporarily, the ability for someone to purchase a firearm — while still upholding due process. With regard to illegal immigration and some recent stories that are generating buzz online, I think a similar compromise could be possible.
In common and statutory law is a concept known as “squatter’s rights”. The actual legal term is the doctrine of adverse possession. The doctrine allows someone to obtain valid title to real property by openly and notoriously occupying the property for a period of years. As in typically 10 years or more. In that period of time, the adverse possessor must act as a normal property owner. Quoting Wikipedia:
Although the elements of an adverse possession action are different in every jurisdiction, a person claiming adverse possession is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse, and continuous for the statutory period.
This doctrine derives from a statute of limitations on the ability for property owners to enforce title to the land and eject anyone adversely possessing it.
The doctrine can also apply to personal property, but the claims are a little more difficult to prove in cases where there is not a government-issued title to the property or other paperwork showing ownership. As an example, let’s say you loan an expensive power tool to a neighbor and then forget about it. The neighbor continues to use it as if they own it, for a significant period of time. And you try to reclaim it and the neighbor refuses, so you sue. The neighbor may be able to claim adverse possession, or at the least abandonment of property.
I hope you can see where I’m going with this.
The stories of illegal immigrants being deported after being in the country for significant periods of time leave me in a little bit of a bind. In one sense, I can readily see the inequity of the issue. At the same time, the rule of law must be upheld. And the law says that those who are not in the United States legally cannot remain once they are discovered and put through the necessary due process to prove their immigration status — yes, the Fifth Amendment still applies even to this.
So can a compromise be reached on this by extending a form of the adverse possession doctrine to immigration?
Similar requirements can be extended to this. They must have been in the United States for at least… 15 years, continuously, whether they entered completely under the nose of immigration officials, or overstayed a visa. For minors the limitation would be the latter of 10 years or reaching the age of majority — a minor brought illegally into the United States at age 15 would need to reach age 25 to claim immunity, while a 2 year-old would need to only reach age 18.
In that time, they must also have clean records (no felony or violent misdemeanor convictions), be established in the community, and the like. A conditional statute of limitations on immigration enforcement.
After that period of time, provided the other conditions are met, the person would be able to apply to the State Department for legal resident status, setting the stage for citizenship if they want it. And if immigration officials discover the person after that period of time has passed, it could be an affirmative defense to deportation.
However the burden of proof in both instances, whether coming forward voluntarily or being discovered by immigration officials, will be on the immigrant to demonstrate their continuous presence in the United States. With clear and convincing evidence.
Not everyone will be able to meet that burden. Likely most won’t. And that’s the point.
Some would probably label this “amnesty”. Except this isn’t calling for blanket immunity, and keeps the burden on the immigrant to prove all needed facts. Meaning they shouldn’t go into it unless they can prove everything necessary. So if they know they’ve been in the country for 20 years, but can only demonstrate 10 years of continuous residence, then they’d be risking deportation… making themselves known.
And since this would be implemented via statute, the rule of law is preserved.