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United States v. Malenge

February 6, 2007

UNITED STATES OF AMERICA
v.
LINDA ADELINE MALENGE,*FN1 DEFENDANT.



The opinion of the court was delivered by: Sharpe U.S. District Judge

Decision and Order

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.*fn2 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 ...


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