Immigration counsel can argue that failure to honor Federal First Offender Act dispositions, or their analogues, would violate the Ex Post Facto provisions of the United States Constitution. See United States v. Gardner, 860 F.2d 1391, 1399, n.2 (7th Cir. 1988) (sentencing provisions of FYCA remain available for crimes committed after its repeal because to do otherwise would violate prohibition against ex post facto laws in U.S. Constitution); United States v. Countryman, 758 F.2d 574, 579 n.

A judge who presided over a criminal proceeding may not testify as a witness over the objection of any party. Evidence Code 703. Moreover, a judge is not competent to testify as a witness in a later civil proceeding at all, with very limited exceptions. Evidence Code 703.5.

Evidence Code 958 (There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.).

Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012) (applicant for cancellation of removal seeking to establish exceptional and extremely unusual hardship to his or her child is not required to provide an affidavit and other documentary evidence regarding the childs care and support upon the aliens removal if the child will remain in the United States with another parent, even if the other parent is in this country unlawfully); clarifying Matter of Ige, 20 I&N Dec. 880 (BIA 1994).

Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) (in removal proceedings arising within the jurisdictions of the United States Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits, an aggravated felony conviction disqualifies an alien from relief under INA 212(h), 8 U.S.C. 1182(h) (2006), only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry); following in their jurisdictions only Bracamontes v. Holder, Nos. 10-2033, 10-2280, 2012 WL 1037479 (4th Cir.Mar. 29, 2012); Martinez v.

Matter of ASJ, 25 I&N Dec. 893 (BIA 2012) (an Immigration Judge lacks jurisdiction to review the termination of an aliens asylum status by the Department of Homeland Security pursuant to 8 C.F.R. 208.24(a)).

Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) (in removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section 212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired); reaffirming Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

Practice Advisory. This decision is wrong and should be fought.

Matter of Arrabelly and Yerrabally, 25 I&N Dec. 771 (BIA 2012) (leaving and re-entering the United States under a grant of advance parole is not a departure for purposes of triggering inadmissibility under INA 212(a)(9)(B)), revised August, 16, 2012).

Adams v. Holder, 692 F.3d 91 (2d Cir. Aug. 15, 2012) (the five-year limitation on rescinding an alien's adjusted status, INA 246(a), 8 U.S.C. 1256(a), does not apply to persons who obtained LPR status via consular processing: adjustment of status under the INA is properly construed as a technical term describing a process whereby certain aliens physically present in the United States may obtain permanent resident status ... without leaving the United States. Succar v. Ashcroft, 394 F.3d at 13 (quoting 3B Am.Jur.2d Aliens & Citizens 2134) (omission in original).

Liranzo v. United States, 690 F.3d 78 (2d Cir. Aug. 9, 2012) (plaintiff's claims relating to his mistaken detention as a removable resident alien " because he is a United States citizen " state a cause of action under the Federal Tort Claims Act because there was a private analogue to the immigration detention suffered by the plaintiff, as required to find a waiver of the United States' sovereign immunity under the Act).