Safe Havens

(J)  Postponement of Deportation to Permit Effective Post-Conviction Relief.  “[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[231]  Therefore, if a noncitizen is in deportation proceedings on account of a qualifying conviction for which state rehabilitative relief will eventually be effective, immigration counsel should request a continuance of the deportation hearing to permit the noncitizen to complete probation successfully and qualify for FFOA-type relief.  The Immigration Judge has discretion to grant this request, and refusal to do so may well be considered to be an abuse of discretion in the Ninth Circuit.[232]

[231] 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).

[232] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).