Senator Marco Rubio (R-Fla.) is claiming amnesty is necessary so that the United States can determine the identity of illegal aliens in the country. However, basic enforcement of existing immigration law is all that is necessary to acquire the identities of all illegal aliens. Instead of promoting amnesty, Sen. Rubio could demand that the Obama administration enforce 8 U.S.C. § 1302, "Registration of Aliens", which makes it "the duty of every alien" to register their presence in the United States if they remain here 30 days or longer. Failure to do so results in a fine of up to $1,000 and/or imprisonment up to six months. (8 U.S.C. § 1306a) The Justice Department's U.S. Attorney's Manual specifically applies this to illegal aliens: "If the alien is undocumented and has been in the United States for longer than 30 days, he or she has also violated 8 U.S.C. § 1306(a)".
Rubio has explained his support for amnesty and his flip-flop on border security, saying:
We don't want to wait on legalizing, and I'll tell you why. My original position was that we wanted to secure the border first, and then legalize. The problem is we have millions of people here now, by some estimates ten, eleven million. We want to know who they are and freeze the problem in place. I don't want that number to grow. It behooves us to know who they are as soon as possible, so it doesn't get worse.
If instead of promoting mass amnesty Rubio demanded that the White House do its job and carry out the laws written by Congress, he would know the identities of all illegal aliens. Curiously, Rubio seems to believe that President Obama would enforce the border security and E-Verify provisions of the amnesty bill, despite the fact that he is not enforcing existing law.
The existing registration law could be applied to nearly all illegal aliens. The DHS estimate of 11.5 million illegal aliens (as of January 2011) are based the American Community Survey. The survey uses a two-month rule for calculating residency; those here for less than two months are not counted. This means that the 11.5 million illegal immigrants as estimated by DHS are by definition people who have been in the United States illegally for more than 60 days and running afoul of the 30-day registration requirement. There is simply no question that the illegal immigrant population is comprised entirely or almost entirely of people who are violating this registration statute.
The law reads:
It shall be the duty of every alien...in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted [during the visa process], and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days. [8 U.S.C. § 1302(a)]
Aliens under the age of 14 are not exempt from registration, but the duty to make sure it happens falls on the parent or guardian. (8 U.S.C. § 1302(b)) Since failing to register is an on-going violation, the statute of limitations does not apply and the alien is liable for as long as he or she remains unregistered in the country. (United States v. Franklin, 188 F.2d 182 (7th Cir. 1951))
Sen. Rubio appears to have fallen into President Obama's trap. The Obama administration refuses to enforce immigration laws and then points to the resulting illegal immigration as a reason for amnesty. Rubio appears to have embraced the amnesty agenda as a means to correct a problem that resulted from purposeful non-enforcement.