Stefan Walter Wiedersperg v. Immigration and Naturalization Service

Petitioner Stefan Walter Wiedersperg seeks review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen the proceedings which led to his deportation in January 1974. The BIA found against Wiedersperg on dual grounds. The BIA held that it lacked jurisdiction under 8 C.F.R. § 3.2 because Wied-ersperg had already been deported, and held alternatively on the merits that Wied-ersperg had “slept on his rights.” See e.g., Hernandez-Almanza v. United States Dep’t of Justice, 547 F.2d 100, 103 (9th Cir.1976). We grant the petition for review and reverse the BIA’s order.

PROCEDURAL BACKGROUND

In 1968 Wiedersperg was charged in state court with violating former California Health & Safety Code § 11530 for possessing a small amount of marijuana. At the time, Wiedersperg was an alien lawfully admitted to this country. Unaware of possible immigration consequences, Wieders-perg followed the advice of counsel and submitted the issue of guilt to the trial court on the transcript of his preliminary hearing. He was found guilty and sentenced to a fine of one hundred dollars and three years’ probation. The conviction and sentence were affirmed on appeal.

In November…