Jens Michelson v. Immigration and Naturalization Service
1990 U.S. App. LEXIS 2634, 897 F.2d 465, 1990 WL 16608 (1990)
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Rule of Law:
An alien in a civil deportation proceeding does not have a Sixth Amendment right to government-appointed counsel. A claim of a Fifth Amendment due process violation for lack of counsel requires the alien to demonstrate prejudice that implicates the fundamental fairness of the proceeding.
Facts:
- Jens Michelson, a citizen of Denmark, entered the United States on February 25, 1988, as a visitor with permission to stay for one week.
- Michelson remained in the United States for a longer period than was permitted.
- During his time in the United States, Michelson was convicted in Ohio for the crime of receiving stolen property.
- He was sentenced to a term of six months incarceration for this conviction.
- Michelson did not have any family members residing in the United States.
Procedural Posture:
- The Immigration and Naturalization Service (INS) initiated deportation proceedings against Jens Michelson in an administrative hearing.
- An immigration judge found Michelson deportable and denied his request for the discretionary relief of voluntary departure.
- Michelson appealed the immigration judge's order to the Board of Immigration Appeals (BIA), an administrative appellate body.
- The BIA dismissed Michelson's appeal, issuing a final order of deportation.
- Michelson (Petitioner) then petitioned the United States Court of Appeals for the Tenth Circuit to review the BIA's final order.
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Issue:
Does an alien in a civil deportation proceeding have a constitutional right to government-appointed counsel?
Opinions:
Majority - Baldock, Circuit Judge.
No. An alien does not have a constitutional right to government-appointed counsel in a civil deportation proceeding. Deportation proceedings are civil, not criminal, in nature, and therefore the Sixth Amendment right to counsel does not apply. While an alien is entitled to due process under the Fifth Amendment, this does not automatically create a right to appointed counsel. To successfully claim that a lack of counsel violated due process, an alien must demonstrate that the absence of representation caused prejudice that rendered the proceeding fundamentally unfair. In this case, Michelson admitted to the allegations forming the basis of his deportability and failed to show any prejudice resulting from his lack of counsel that would cast doubt on the fairness of the hearing.
Analysis:
This decision reaffirms the established legal distinction between civil deportation proceedings and criminal prosecutions, reinforcing that the robust procedural protections of the Sixth Amendment do not apply. It solidifies the standard for a due process challenge based on the absence of counsel, placing a significant burden on the alien to prove actual prejudice. This high bar makes it difficult for unrepresented aliens to overturn deportation orders on these grounds and underscores the limited scope of constitutional rights afforded to aliens in the immigration context.
