A flight from strife right into dilemma

Refugees who break laws to enter the U.S. bring court system, supporters into conflict

By KATE GURNETT, Staff writer
First published: Tuesday, June 19, 2007

ALBANY -- When Linda Malenge was arrested on an Amtrak train at the northern U.S. border last year -- with phony Canadian and Greek passports and no U.S. visa -- she'd lost more than her proper ID.

Her father was dead, murdered at home by government troops in the Democratic Republic of Congo. Her brother was missing, presumed killed. Her husband had already escaped to the United States.

A civil war was raging in her homeland, claiming 4 million lives. In October 2005, five men broke into Malenge's house and fractured her ankle. They sought her uncle-in-law, a bodyguard to late president Laurent Kabila. If we don't find him, they told her, we'll be back for you.

"The only thought in my head was to flee," Malenge said in a telephone interview last week. "Things were quickly unraveling." Seeking a passport could have prompted her arrest or worse. She took her 5-year-old son to a safe location and then fled the country.

This week, the 24-year-old mother will be sentenced in U.S. District Court in Albany for using a forged passport to cross the U.S. border. Ultimately, she could be deported to the Democratic Republic of the Congo, where executions, unexplained disappearances and government torture still occur.

Her case raises questions about the efficacy of the United States as a safe haven for refugees of war and terror. It reflects a dilemma faced by other exiles who use fake documents to escape violence: Are they refugees or criminals?

The U.S. attorney's office in Albany says Malenge is a criminal. Prosecutors won felony convictions against her and another woman, Ramatulai Barry of Guinea. Both Barry and her husband were imprisoned and tortured in Guinea and Barry was raped by guards before she escaped, court records state. Barry, 29, was arrested last September while crossing the border at Champlain with a false passport. She, too, was trying to join her husband, who is in New York City.

Two federal judges -- Judge Gary Sharpe and Judge Thomas McAvoy -- agreed, finding they violated U.S. law.

But their attorney, federal public defender Gene Primomo, says he may appeal. Both women are protected by the United Nations 1951 Refugee Convention and the subsequent 1967 Protocol on refugees, he argues. That international law protects asylum-seekers who commit illegal acts "consistent with traveling as a refugee," such as using false documents, Primomo says. And it also allows refugees to make a political asylum claim before they are prosecuted for illegal entry.

"Blindly prosecuting these women in light of their circumstances is a travesty and a waste of government resources," Primomo said. He had asked the U.S. government to send the women to immigration court while retaining the right to prosecute after the asylum issue was decided.

Malenge "is the poster child for what this treaty is supposed to do," Primomo said.

U.S. District Court Judge Gary Sharpe rejected Primomo's argument, saying the treaty doesn't preclude prosecution, though it advocates restraint. Malenge can still apply for asylum, Sharpe said.

Malenge's circumstances don't "excuse the deception she employed at the border," Assistant U.S. Attorney Edward Grogan said in court papers. Before getting any "immigration benefits . . . she must first account for the conduct that she displayed at the border."

Both sides say Malenge and Barry are rarities -- two women trying to join their husbands by sneaking in before requesting asylum -- among the many people nabbed for falsifying documents at the border.

Many people request asylum at the border without trying to enter illegally, Grogan said. "We hear of all kinds of terrible situations and we know there are desperate people," he added. "But it doesn't excuse criminal conduct."

Because such cases are rare, Primomo said, it would be easy to divert them to federal immigration court, where deportation is the toughest penalty, rather than federal criminal court. "Very few people arrested at the border claim they are political refugees. When it comes up, it's fairly obvious that criminal prosecution is unnecessary and should be prohibited or delayed," he said.

While the women could face prison time, it is likely that Malenge will be sentenced to time served -- five months in Washington County Jail -- Primomo said. But he worries that the felony conviction could prejudice her asylum case.

Barry's sentencing is set for Sept. 10 in Albany federal court. Both Malenge and Barry are seeking asylum in immigration court.

What's likely to happen there is anyone's guess.

A recent Georgetown University study of 140,000 immigration court decisions found huge disparities in asylum judgments. Colombians, for example, had an 88 percent chance of winning asylum from one Miami judge, but a 5 percent chance from another in the same court. Someone fleeing persecution in China would find a 75 percent chance of approval in Orlando, Fla., but a mere 7 percent chance in Atlanta, Ga. Asylum is granted 44 percent more often by female immigration judges, according to the study.
The controversial immigration proposals debated in Congress last week would make asylum applicants convicted of using some fake passports ineligible for asylum, according to Philip Schrag, who directs the asylum law clinic at Georgetown University and headed the study with two other law professors.

Many countries refuse to issue passports to political or religious dissidents, leaving them to use doctored documents, Schrag says. People fleeing aren't likely to try to get the proper paperwork, a reality reflected in the United Nations protocol.

A lack of legal alternatives for refugees threatens "the protection that America offers to people who flee their homelands to escape persecution by oppressive governments," Schrag wrote in a May column in The Washington Post.

Malenge said she remains hopeful. But she's surprised by how few Americans seem to comprehend the plight of refugees.

In the Democratic Republic of Congo, "human rights do not exist at all," she said. "There is so, so, so much injustice. Police protecting you? That does not exist. Anyone could be a killer, including the police. There is no security. I know so many families that had to flee."

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