Court Rulings

ASSAAD, 23 I&N Dec. 553 (BIA 2003) ID 3487 (PDF) (1) Case law of the United States Supreme Court holding, in the context of criminal proceedings, that there can be no deprivation of effective assistance of counsel where there is no constitutional right to counsel does not require withdrawal from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), finding a right to assert a claim of ineffective assistance of counsel in immigration proceedings, where the United States Courts of Appeals have recognized that a respondent has a Fifth Amendment due process right to a fair immigration hearing, which may be denied if counsel prevents the respondent from meaningfully presenting his or her case. (2) The respondent did not establish that his former counsel’s failure to file a timely appeal constituted sufficient prejudice to warrant consideration of his late appeal on the basis of ineffective assistance of counsel.

<bold>1. Premises Liability — injury from contact with power line</bold> <bold>— directed verdict — judgment notwithstanding the verdict</bold> <block_quote> The trial court did not err by denying defendant motion-picture studio owner's motions for directed verdict and judgment notwithstanding the verdict on the issue of defendant's negligence in a case where plaintiff carpenter came into contact with uninsulated energized power lines while working on defendant's premises to build a film set, because: (1) defendant's retention of substantial authority over the use of its property, taken together<page_number>Page 466</page_number> with its active involvement in the film production company's daily routines, placed upon defendant a concomitant duty to exercise reasonable care to ensure that the production company's employees including plaintiff were not injured by coming into contact with uninsulated power lines running over the back lot; (2) defendant had a duty to exercise such reasonable care as a landowning proprietor, running a motion-picture studio while maintaining a significant degree of control over the daily operations of its licensees, would exercise under the circumstances; (3) given the evidence to the jury concerning the nature and use of the property, the knowledge of defendant through its facility manager of the set conditions, and the available alternatives, there was sufficient evidence to submit to the jury the question of whether defendant was negligent in causing plaintiff's injuries; (4) defendant has not been held to a strict-liability standard since defendant's liability was based upon the particular facts of the case, including defendant's awareness that the film production employees would be working within the power-line easement and defendant's failure to take reasonable steps to protect plaintiff; and (5) it was not unforeseeable as a matter of law that the type of injury plaintiff sustained would result from defendant's alleged negligen