40. Do Some Illegal Immigrants Have a Right to Stay in the US ? – A Theory

February 12, 2017

Has our government, by decades of intentional neglect, granted that right?

If we can actually stop illegal entry within a year or two by virtue of a wall and of funding for enforcement on the border, and by prosecution of those who hire illegals, could we not have been doing it all along? Does that not prove that neglecting to prevent illegal entry and the use of illegal labor was systematic and intentional, no matter what anyone says about it? Was it not de facto intentional ?

What does fair mean and how does it relate to how we feel ?

Neuroscience has recently informed us that from the limbic structures of the brain that generate our emotions, there seems to arise a sense of fairness: that when events violate that sense of what is right we are warned by feelings of anger, fear and sadness. Moreover man cannot, as the Victorians thought, take sole credit for this ethical sense, for there are now proofs it may well exist in other creatures, certainly primates and some higher mammals. If the test for an ethical sense are to be found in displays of emotion in response to situational inequities, it follows that these can be detected in any animals in which we believe we can perceive anger, sadness, fear or joy.

The common usages of language seem to put that limit at the line between the warm-blooded and the cold-blooded, (e.g. we speak of a “cold-blooded” person when we mean one without perceptible feelings), a much wider category than most western religions have claimed for the soul, though Buddhists, animists and pantheists have been more generous.

Therefore it seems to me that it is not religion that gives humankind a sense of fairness, its moral sense. Rather it is a biologically-based sense of fairness that informs the philosophies of the prophets and profiteers who invent religions.

I am not a lawyer and never have been one, but I was once, more than sixty years ago, literally a legal scholar for two years, the first at the University of Chicago and the second at Rutgers University. Which has been of a certain value to me in the years since, given that in the sea of controversy over daily events, an amorphous universe in which we all swim, I have been in the habit of actually reading the laws and legal decisions that often serve to clarify, crystalize and define the core issues.

To give credit to all of my teachers for whatever ability I may possess for understanding “what is going on around here”, shortly after leaving law school, circumstances, (being drafted into the Army and designated an Information Specialist), forced me to spend two years as a working newspaper journalist. As a journalist it was my job to observe, then organize and describe the relevant facts surrounding important world events.

Between the two I think I may have fulfilled my astrological destiny as a Libra, to take a balanced view of matters before me.

There is one other event in my life, or rather the life of my father, that I think may have some relevance to my thoughts this morning on the matter of illegal immigration. After only one year of college at Duke, and a single year at Dana Law School, now Rutgers, my father “read law” in the office of a local magistrate and then passed the bar as an attorney in the state of New Jersey. After a mandatory five years of practice he took, and in an unusual feat, passed the first time, the Counselor’s exam, admitting him to the Bar of Equity. In New Jersey at the time, that allowed him the greater privilege of arguing in the “courts of equity”, and in the highest appeals court in the state. As a small boy he tried to explain that arcane abstraction to me, and to this day all I retain is a small boy’s understanding, but I gathered it meant that where the common law and the statutes were unclear, contradictory or incomplete, there were courts in which one could argue concerning what was fair and equitable, and where matters of the state Constitution could be heard.

Concerning the issue of illegal immigration, while I have sympathy for honest, hard-working and law-abiding long-term illegals, I have believed that the law was clear on what should be done with them: they should be deported.  However my habitual need to understand the whole story and untangle its complexities, (or perhaps it was that spicy snack at bedtime),  caused me to awaken this morning mulling over a different idea.

Which leads me to the proposal that there may be a legal argument that crystalizes and explains the seemingly inexplicable and indefensible: that open-border advocates believe that people who came here illegally and have even broken laws in order to stay and work here, should be allowed to stay and be Americans once they are eventually discovered.

I have intentionally avoided doing any internet research on this point, preferring to work out my thoughts on the basis of a general feeling about what it fair under the law as I remember it.

Squatters’ rights, adverse possession and the creation of an easement.

In the common law there was a principle that helped deal with the sometimes confusing succession of ownership of real property. I have never heard another soul make this argument explicitly, but it is implied in the vague notion that some illegal immigrants have been here so long it may be inequitable, and therefore wrong, to make them leave.

The way it worked was this. If a landowner noticed that people were crossing his land as a shortcut to town and, for whatever reason, tolerated it. And after a certain number of years he sought to put up a fence across the path in order to block their way, he could be estopped from building the fence on the grounds that he had, by his previous lack of action, tacitly granted permission for the use, with the eventual creation of an Easement, or right-of-way to the travelers. And that they had, by Adverse Possession of his land, eventually acquired the right to cross it.

As I recall, but it was more than sixty years ago, there were also cases where a person may have built a dwelling on the land of another, who did not object or evict him, until eventually, the squatter obtained the right to stay, again by Adverse Possession of the land.

It seems to me, unless an actual lawyer can tell my why it isn’t so, that illegal immigrants from Mexico may have obtained the right to stay and work here by Adverse Possession, and the creation of what is analogous to an Easement.

In other words, there is a time-honored legal principle that appears to me to support the right of illegal immigrants who have been here a long time to stay here as long as they wish, other things being equal. Naturally, those other things would include the legality of their behavior while living here, and the balancing of their overall contribution as members of the community against the harm caused by breaking whatever laws they may have violated.

It will take a real lawyer to decide whether this argument could actually be made, but I would rather see the issue argued head-on within the existing system of jurisprudence than fought out in the push and shove of the streets or the battle of the false narratives that constitutes political arena.

Now it’s time for me to do some reading to see whether this approach is possible.