Safe Havens

(C)  Postponement of Deportation to Permit Effective Post-Conviction Relief.  The pendency of a request for post-conviction relief, other than a direct appeal of right, does not destroy the finality of the conviction.[272]  “[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[273]

[272] Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality of conviction; this ruling was dictum since petition for review was dismissed as moot because conviction affirmed by state high court after BIA decision relying on it); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975). 

[273] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][c][ii] (2004), citing Matter of G, 9 I. & N. Dec. 159 (AG 1961), in effect modifying Matter of V, 7 I. & N. Dec. 242 (BIA 1956).  See Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980) (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of the conviction).