U.S. v. Malenge

• Decision Date: 06 February 2007
• Docket Number: No. 1:06-CR-070 (GLS).,1:06-CR-070 (GLS).
• Citation: 472 F.Supp.2d 269
• Parties: UNITED STATES of America v. Linda Adeline MALENGE,<SMALL><SUP>1</SUP></SMALL> Defendant.
• Court: U.S. District Court — Northern District of New York

Page 269

472 F.Supp.2d 269

UNITED STATES of America v. Linda Adeline MALENGE,¹ Defendant.

No. 1:06-CR-070 (GLS).

United States District Court, N.D. New York.

February 6, 2007.

Glenn T. Suddaby, United States Attorney, Edward P. Grogan, Assistant U.S. Attorney, Albany, NY, for the United States.

Alex Bunin, Federal Public Defender, Gene V. Primomo, Assistant Federal Defender, Albany, NY, for the Defendant.

Decision and Order

SHARPE, District Judge.

I. Introduction

Linda Adeline Malenge has been indicted for false personation, misuse of a passport, and false use of a passport. See Indictment, Dkt. No. 6; see also 18 U.S.C. §§ 1546(a), 1544 and 1543. She moved to dismiss the indictment, and the government opposed. See Malenge Mot., Dkt. No. 20; Govt. Resp., Dkt. No. 21. During oral argument, the court alerted the parties that their submissions were flawed because they offered no reliable means to ascertain facts that were essential to the resolution of the motion. See 7/21/06 Minute Entry, Dkt. No. 24. Thereafter, both parties supplemented the record. See Dkt. Nos. 28, 32.

Malenge argues that the indictment must be dismissed because her Fifth and Fourteenth Amendment Due Process rights were violated when the government elected to prosecute her. Her conclusion rests on the following postulates. As a signatory to the Treaty on Refugees, the United States must comply with Treaty obligations regarding those seeking asylum in America. Those obligations require signatories to decline criminal prosecution of refugees who use false documents to gain entry. The United States Attorney is a component of the Executive Branch, and his authority to prosecute is limited by the requirement that he obey treaty obligations. When Malenge entered the United States, she presented false documents but was seeking political asylum. Thus, the United States Attorney's decision to prosecute exceeds his authority and violates Malenge's Due Process rights.

At first blush, Malenge's argument invites a legal excursion seeking to ascertain the parameters of executive power, international obligations and constitutional law. However, such an excursion is unnecessary because as a matter of fact, there was no violation of treaty obligations or other substantive provisions of U.S. immigration law. Accordingly, the motion to dismiss is denied.

II. Facts

The facts are now sufficiently developed so that the court can resolve the motion without a hearing.² See United Nations High Commissioner for Refugees ("UNHCR") Advisory Opinion (Mar. 18, 2003), Dkt. No. 20, pt. 3; UNHCR Memo., Dkt. No. 20, pt. 4; UNHCR List of Signatories to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, Dkt. No. 20, pt. 5; Dep't of Homeland Security Investigative Report, Dkt. No. 24, Def. Ex. 1; N.Y. Times Article on the Congo (June 23, 2006), Dkt. No. 22, pt. 2; Malenge Decl., Dkt. No. 28, pt. 2; Dep't of Homeland Security Investigative Report, Dkt. No. 32, pt. 2; Advice of Rights & Interview Log (Mar. 26, 2006), Dkt. No. 32, pt. 3; Dep't of Homeland Security Form, Dkt. No. 32, pt. 4.

On February 26, 2006, Malenge boarded an Amtrack train in Montreal that was destined for New York City. At 12:15 P.M., the train was stopped at Rouses Point, a U.S.-Canadian port of entry. U.S. Customs and Border Protection agents boarded to inspect the passengers.

During primary or initial inspection, Agent Bourque confronted Malenge and asked her for identification. She presented a Canadian passport identifying herself as Algerian-born "Hadjira Merazi." In French, she explained to Bourque that she was a Canadian citizen living in Montreal. Given his training and experience, Bourque knew that she was not born in Algeria. Upon a closer inspection of her passport, he believed it had been altered by substituting a different photograph. When Malenge was unable to provide other identification, Bourque referred her to secondary inspection.

At secondary inspection, Bourque further questioned Malenge about her residence, her destination and the length of her stay in Canada. He reinspected the passport and believed that the date of birth and issue date had been altered. He then removed Malenge from the train and took her to the Champlain Port of Entry for further inspection.

There, and in response to questioning, Malenge insisted that she was "Hadjira Merazi." When Bourque asked her to spell the name, she misspelled it. Two other agents then frisked Malenge and discovered a Greek passport hidden in a soft cast on her leg. The Greek passport identified her as "Adeline Annastasia," born in Kinshasa. After she was fingerprinted and a system check proved negative, she was asked to write her real name. At that point, she identified herself as Lynda-Adeline Malenge, a citizen of the Congo.

During further questioning, Malenge told the agents that she entered Canada four months earlier on October 24, 2005 using the Greek passport. Once in Canada, a friend gave her the bogus Canadian passport to assist her unlawful entry into the United States. She was destined for Bridgeport, Connecticut to join her refugee husband, Nono Malenge.

After these admissions, Malenge was turned over to Customs and Border Patrol Officer Brault who was responsible for initiating prosecution. Through an interpreter, Brault advised Malenge of her Miranda warnings at 5:00 P.M, and she requested the assistance of counsel. All questioning then ceased. Brault then asked Malenge to complete a Customs and Border Protection Form used to elicit post-arrest pedigree information, and Malenge complied. After confirming with the U.S. Attorney's office that Malenge would be prosecuted, Brault produced her before a Magistrate Judge for an initial appearance. The Magistrate Judge remanded Malenge to the custody of the U.S. Marshals.

Shortly thereafter, Brault returned to Champlain and reviewed the pedigree Form. Upon review, he saw that Malenge had written "yes" in response to the following question: "Do you want refugee/asylum status in the United States." See Dep't Homeland Security Form, Dkt. No. 32, pt. 4. From her initial confrontation on the train at 12:15 P.M. until interrogation ceased at 5:00 P.M., Malenge never stated that she was a refugee seeking asylum.

According to Malenge, she was born on August 6, 1982 in the Democratic Republic of the Congo. She has resided there her entire life, and she is a Congolese citizen. In 2000, she married Nono Malenge who is also a Congolese native. In summary, she fears persecution in the Congo for the following reasons: (1) the Congo is violent, unstable and undemocratic; (2) in 2004, her father was accused of associating with a guerilla faction opposing the government, and he was murdered; (3) her brother is since missing and presumed murdered; (4) her husband's family was associated with the former President of the Congo who was murdered, and the family remains vocally opposed to the current regime; and (5) she suffered an ankle fracture when she was violently assaulted in her home on October 15, 2005, by government forces looking for her uncle.

As a result of the October 15 assault, she fled the Congo eight days later on October 23. She traveled to Paris, France with a family friend who obtained the false Greek passport for her. Ultimately, she intended to reunite with her husband, an asylum seeker residing in Bridgeport, Connecticut. She first flew to Montreal and remained in a "safe house" for five days. She then moved to Toronto because she was told it would be easier to gain entrance into the United States from there. While in Toronto, she stayed with a sympathetic Haitian family for two months. There, she obtained the bogus Canadian passport.

On February 26 at 9:50 A.M., she boarded a train in Montreal, first filling out a Canadian travel form indicating her destination as Bridgeport. After that, her account of events substantially parrots that of the agents. See Malenge Decl., Dkt. No. 28, pt. 2. Additionally, she avers that when she eventually provided her true name, she told the officers that she was in danger in the Congo.

III. Analysis

To simplify resolution of Malenge's motion, the court accepts the following principles at face value. In 1968, the United States undertook refugee obligations when it signed the 1967 Protocol mandating compliance with Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees. See Protocol Relating to the Status of Refugees ("Protocol"), Nov. 1, 1968, 19 U.S.T. 6223; United Nations Convention Relating to the Status of Refugees ("Refugee Treaty"), June 28, 1951, 19 U.S.T. 6259, T.I.A.S. No. 6577; see also Garcia v. I.N.S., 7 F.3d 1320, 1324 n. 3 (7th Cir.1993) (explaining the relationship between the Protocol and Treaty and the nomenclature routinely employed by the courts). Both the Executive Branch and Congress believed that U.S. immigration law fully complied with the Treaty when it was adopted. See generally, Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); I.N.S. v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Under the Constitution, the President has the power to make treaties with the consent of the Senate, and state and federal governments are obligated to enforce rights recognized by the self-executing provisions of such treaties. See Sanchez-Llamas v. Or., ___ U.S. ___, ___-___, 126 S.Ct. 2669, 2679-80, 165 L.Ed.2d 557 (2006). The Attorney General and U.S. Attorneys retain broad discretion to enforce the nation's criminal laws, including the decision whether to prosecute, and what charges to file or present to a grand jury. See U.S. v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). However, prosecutorial discretion is sometimes subject to constitutional constraints. See id. Thus, for example, due process is...