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Molenda v. Immigration and Naturalization Service

decided as corrected: August 20, 1993.

JANUSZ ROMUALD MOLENDA, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of an Order of the Immigration and Naturalization Service. INS #A35 068 575

Before Jolly, Duhe, Emilio M. Garza, Circuit Judges.

Author: Duhe

DUHE, Circuit Judge:

Janusz Romuald Molenda appeals his deportability and the denial of his application for relief from deportation under section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c). The Board of Immigration Appeals (Board or BIA) affirmed the order of the immigration Judge (IJ) finding petitioner deportable and denying his application for relief. We affirm.

Background

Janusz R. Molenda is a 27 year-old native and citizen of Poland. He emigrated with his family to the United States when he was eight years old. In 1986, Molenda was convicted of criminal damage to property, burglary, residential burglary, attempted residential burglary and theft. In 1989, as a result of these convictions, he was found deportable, but granted a waiver of deportation under section 212(c).*fn1

Less than two months later, Molenda was arrested for trying to have someone murdered. In June 1990, he plead guilty to soliciting a crime of violence in violation of 18 U.S.C. § 373. As a result of this conviction, the INS instituted deportation proceedings under section 241(a)(2)(A)(ii).

At the deportation hearing, Molenda contested his deportability by arguing that the prior criminal convictions for which he was previously granted section 212(c) relief could not be combined with his new offense to establish deportability in this case. The IJ rejected this argument and found Molenda deportable as charged.

Molenda then testified in support of his application for section 212(c) relief. He attributed his prior criminal conduct to his drug addiction, stating that the burglaries were committed in an attempt to support his $90-$160 per day cocaine and alcohol habit. Molenda also testified that he paid $2,500 to have a man murdered because he owed the man $22,000 to $33,000 for drugs, and was desperate to avoid the debt.

Molenda contends that he has reformed his life. He has spent over 500 hours in drug counseling, and is a few credit hours away from earning his associates degree. He has worked at reestablishing his relationship with his ex-wife and two sons. He is gainfully employed and is currently obeying the terms of his probation.

Molenda's brother, ex-wife, and ex-mother-in-law testified on his behalf that he has reformed since he entered prison and quit using drugs. Mr. Molenda was also designated as a kidney donor for his ailing father who has subsequently passed away.

The IJ, after considering the applicable factors, denied relief under section 212(c). Initially, the IJ determined that because of the seriousness of Molenda's crimes, he needed to establish unusual or outstanding equities. The Judge then found that he had established an unusual equity, i.e. his willingness to donate a kidney to his father. Nevertheless, the Judge concluded that the adverse factors were so serious that, even though Molenda had established unusual and outstanding equities, relief under section 212(c) was not warranted. The IJ also noted that Molenda had once received section 212(c) relief and after receiving this second opportunity, he should have strictly abided by the laws of this country.

On appeal, the BIA rejected Molenda's contention that, pursuant to 8 C.F.R. § 212.3(d) (1993), the INS was precluded from using petitioner's prior criminal convictions for which he was previously granted 212(c) relief to establish his deportability in this case. Relying on Matter of Balderas,*fn2 the Board held that a grant of 212(c) relief does not expunge the criminal convictions from the alien's immigration record. Additionally, the Board stated that regulation 212.3(d) "assures that only grounds of excludability or deportability specifically disclosed and described in an application for that relief are waived ... It does not preclude reliance on previous grounds of deportability when additional grounds of deportability arise from a subsequently compounded criminal record."

The Board also upheld the IJ's denial of section 212(c) relief for the reasons stated by the IJ. Additionally, the Board stated that Molenda's conviction after having once been granted ...


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