The DHS is arguing that if the prosecution appeals a trial court order vacating the criminal judgment against the defendant, the immigration court can continue to treat the case as if the conviction is still in effect. Immigration counsel could try the argument that a trial-court conviction is treated as existing in criminal court, even though an appeal is pending, but of course that is not true in immigration court: a conviction on appeal is not treated as final in immigration court until the appeal is over with.  Immigration counsel could try the judicial economy argument, that 95% of appeals in criminal cases are unsuccessful, so it is grossly unfair to deport the respondent before the appeal is over because 95% of the time it will have been a mistake, but the prosecution could break down that statistic into defense appeals (95% lost) and prosecution appeals (67% won).  The Ninth Circuit in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), stated that Congress cannot be thought to intend that a noncitizen should be deported when a delay until probation has expired will bring an effective expungement. The BIA in Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980), held that the IJ has discretion to continue a deportation hearing to allow the respondent to get an expungement where the expungement will solve the problem. These decisions could be used to argue that the IJ should at least continue the removal proceeding to see if the deportable conviction still exists at the termination of the appeal.  This last is a stronger argument if the prosecution's grounds for appeal is weak. It would be possible to file a habeas petition in United States District Court, under 28 U.S.C. 2241, and argue that the prosecution is not likely to prevail on the appeal, and therefore the DHS is not likely ultimately to win a deportation order, and the deportation proceeding should therefore be stayed until the criminal appeal has been completed.