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Immigration (DREAMER)

·         Entry, Admission, Exclusion, Registration, Monitoring, Repatriation & Deportation of foreigners within the national territory of the Philippines

·         Not part of international law

·         Incidents of sovereignty

 

Violation of Immigration Laws

·         not a crime, not a felony

·         prosecuted before quasi-judicial body, Board of Commissioners or Board of Special Inquiry

 

In Re Patterson Case

[1 P 93]

 

Thomas Toye Patterson, a British subject, arrived at the port of Manila.  24 hours after landing, having been required by the Collector of Customs to take the prescribed oath and having refused to comply on account of his objections to certain parts of the oath, he was arrested & is now held for deportation

 

è what’s the basis of the power of deportation?

A: Self-preservation by the State against the undesirable alien; fundamental right of each State to self-preservation & the integrity of its dominion & its sovereignty

è basis for State’s control over aliens

A: State may restrict the admission of foreigners into its territory, and this right is not affected by existing treaties of commerce & intercourse between nations

è reason

A: Every State has a fundamental right to its existence & development, as also to the integrity of its territory & the exclusive & peaceable possession of its dominions which it may guard & defend by all possible means against any attack; a legitimate manifestation of territorial power & is not contrary to law

è Where a statute authorizes an executive officer to exclude foreigners whom he has reasonable grounds to believe guilty of certain unlawful acts or purposes, he is the sole & final judge of these facts & cannot be required to show reasonable grounds for his belief to a court of justice

è Where a foreigner whose landing is prohibited by statue has actually landed he remains under the jurisdiction of the officer charged with the duty of excluding him and he may be re-embarked and deported

è (Concurring) the courts have power to review his action & determine whether or not the grounds are reasonable

è (Dissent) such executive officer must act within the scope of his authority, or his decision is a nullity, and in case of such excess of jurisdiction the courts will relieve by habeas corpus persons suffering unlawful imprisonment under such void proceedings

 

In re McCulloch Case

[38Phil211]

 

n       Proprietor & editor of a weekly newspaper & has violated Act No.2757 which penalizes the publication of articles directly or indirectly creating sentiments favorable to the cause of nations with which the United States is at war

è enactment of deportation provisions in Act No.2757 does not deprive the Governor-General of the power to deport which he may have had prior to its enactment as Act No.2757 is merely a war time measure

è petition for habeas corpus

A: Special proceeding directed to an officer in the custody of a person to produce the body & explain why he is being detained.

è who has the power to deport

            A: President and those persons whom he authorizes

è why?  Is there a law which gives the President the power to deport?

            A: None, it’s inherent.

è is the power to deport lodged solely with the Executive?  President?

 

 

 

 

Tan Tong v. Deportation Board

[96Phil934]

 

n       Tan Tong was originally charges before the Bureau of Immigration with being a communist, subject to deportation.  The Board of Commissioners found that Tan Tong was engaged in communistic activities & in smuggling, and so it recommended that Tan Tong be deported to China & that his smuggling activities be referred to the OP under Section 69 RAC.

n       Special Prosecutor Galang charged Tan Tong before the Bureau of Deportation with affiliation with the communist party & having fraudulently engaged in unlawful importation, American cigarettes. 

n       Tan Tong filed MTQ because charges were already investigated by BoI & that insofar as smuggling charge is concerned, the proceedings are beyond the Board’s jurisdiction because no deportation proceedings for smuggling can be instituted before conviction by a competent court

è there is not need to conduct investigations by the Deportation Board if there has been final conviction but if there is no final conviction, the Board can investigate

è is there a specific law that gives the Executive power to deport?

A: the power to deport aliens is lodged in the President.  As an act of State, it is vested in the Executive by virtue of his office, subject only to the regulations prescribed in Section 69 of the Revised Administrative Code or to such future legislation as may be promulgated on the subject

è Section 69 of the RAC does not define the cases in which the Chief Executive may exercise his power to deport; neither does it limit or curtail.  What it does prescribe is the procedure necessary for the exercise of that power that the alien may have his day in court

è if a competent court has found the alien guilty of a violation of law, it is no longer necessary that the proceedings outlined in Section 69 be resorted to before his deportation may be ordered by the Chief Executive for that would be a mere duplicity

è Section 69 RAC vis-s-vis Section 2702 RAC which punishes illegal importation and imposes, in addition to the penalty prescribed, the liability to deportation if the person found guilty is an alien

è grounds should not be whimsical, etc. (go back to In re Patterson)

è What are the grounds for being undesirable?  Will there be a limitation to the power to deport?

A: Based on threat to national security, inimical to public health; grounds should not be whimsical.

 

Q: In In Re Patterson, what’s the basis of the power of deportation?

A: Self-preservation by the State against the undesirable alien

 

Q: What’s a petition for habeas corpus?

A: Special proceeding directed to an officer in the custody of a person to produce the body & explain why he is being detained.

 

Q: Who has the power to deport?

            A: President and those persons whom he authorizes

 

Q: Is there a law which gives the President the power to deport?

            A: None, it’s inherent.

 

Q: What are the grounds for being undesirable?  Will there be a limitation to the power to deport?

A: Based on threat to national security, inimical to public health; grounds should not be whimsical.

 

COMMONWEALTH ACT NO. 613

AN ACT TO CONTROL AND REGULATE THE IMMIGRATION OF ALIENS INTO THE PHILIPPINES

 

TITLE OF ACT

 

Section 1. This Act shall be known as "The Philippine Immigration Act of 1940."
 

BUREAU OF IMMIGRATION

 

Sec. 2. Officials. - A Bureau of Immigration [now Commission on Immigration and Deportation] is established under a Commissioner of Immigration, who shall have two assistants, a First Deputy Commissioner of Immigration [now Associate Commissioner of Immigration] and a Second Deputy Commissioner of Immigration [now Associate Commissioner of Immigration]. For administrative purposes, the Bureau of Immigration [now Commission on Immigration and Deportation] shall be under the supervision and control of the Department of Labor [now Department of Justice] or of any other executive department which the President may subsequently determine.

 

 

COMMISSIONER OF IMMIGRATION

 
Sec. 3. Appointment; term of office; compensation. - The Commissioner of Immigration shall be appointed by the President, with the consent of the Commission on Appointments of the National Assembly, 
and shall hold office at the pleasure of the President. He shall receive compensation at the rate of ten thousand pesos per annum.
 
     Administrative head powers as such. - He shall be the administrative head of the Bureau of Immigration and shall possess the powers generally conferred upon bureau chiefs. He shall have charge of the administration of all laws relating to the immigration of aliens into the Philippines and shall have the immediate control, direction and supervision of all officers, clerks, and employees of the Bureau of Immigration. He shall issue, subject to the approval of the Department Head, such rules and regulations and prescribe such forms of bond, reports, and other papers, and shall issue from time to time such instructions not inconsistent with law, as he shall deem best calculated to carry out the provisions of the immigration laws. He shall submit a report to the President, in writing, of the transactions of his office, annually or oftener as the President may require.


 

DEPUTY COMMISSIONERS OF IMMIGRATION

 

Sec. 4. (a) Appointment; term of office; compensation. - The two Deputy Commissioners shall be appointed by the President, with the consent of the Commission on Appointments of the National Assembly, and they shall hold office at the pleasure of the President. The First Deputy Commissioner shall receive compensation at the rate of nine thousand pesos per annum and the Second Deputy Commissioner shall receive compensation at the rate of eight thousand four hundred pesos per annum. During the absence or disability of the Commissioner, the First Deputy Commissioner shall act as Commissioner, and during the absence or disability of both the Commissioner and the First Deputy Commissioner, the Second Deputy Commissioner shall act as Commissioner, and the Deputy Commissioner who shall so act as Commissioner, shall perform the duties of the latter in addition to his own duties.

(b) No person shall be appointed Commissioner or Deputy Commissioner unless he be a natural-born citizen of the Philippines and is at least thirty years of age.

 

IMMIGRANT INSPECTORS

 
Sec. 5. (a) The position of Immigrant Inspector is created, appointments to which shall be made upon the recommendation of the Commissioner of Immigration in accordance with the Civil Service Laws. 

(b) Whenever he shall deem it necessary, the Commissioner of Immigration may appoint, with the consent of the proper Department Head, any qualified employee of the Government to serve as Acting Immigrant Inspector Acting Immigrant Inspectors shall have the same powers and authority as Immigrant Inspectors.

Sec. 6. Powers of Immigration Officer. - The examination of aliens concerning their right to enter or remain in the Philippines shall be performed by Immigrant Inspectors with the advice of medical authorities in appropriate cases. Immigrant Inspectors are authorized to exclude any alien not properly documented as required by this Act, admit any alien complying with the applicable provisions of the immigration laws and to enforce the immigration laws and regulations prescribed thereunder. Immigrant Inspectors are also empowered to administer oaths, to take and consider evidence concerning the right of any alien to enter or reside in the Philippines, and to go aboard and search for aliens on any vessel or other conveyance in which they believe aliens are being brought into the Philippines. Immigrant Inspectors shall have the power to arrest, without warrant, any alien who in their presence or view is entering or is still in the course of entering the Philippines in violation of immigration laws or regulations prescribed thereunder.
 

Q: Why do we have immigration laws?

A: To protect national security; it’s easier to have immigration laws & enforce rather then criminal law processes

 

Bureau of Immigration

·         in charge of enforcing immigration laws

·         in general, anything to do with aliens

·         office: in Magallanes Drive, Intramuros (same street as post office)

·         under DOJ

 

Officers of Bureau of Immigration

1.       Commissioners à in charge of administration of all laws relating to immigration of aliens

2.       Deputy Commissioners à acts if Commissioner is absent

è Natural-born citizens of the Philippines

è at least 30 years of age

è Board of  Commissioners acts as collegial body, decide by a majority

 

Functions of Immigration Officers (DAVE-DAVE)

1.       Coordination w/ DSWD, see if child leaving Philippines is accompanied by parent

2.       Arrest, without warrant, any alien who in their presence or view is entering or is still in the course of entering the Philippines in violation of immigration laws

3.       Go aboard vessels and see if there are aliens

4.       Examine aliens’ right to enter or remain in the Philippines

5.       Coordination w/ DOLE, see if they (Filipinos leaving) have working permits

6.       Admit alien

7.       Determine if they (Filipinos leaving Philippines) have valid visas (like US visas, etc)

à in their authority because their agreement between the US & Philippines, to refuse leaving of Filipinos w/ fake visas

8.       Exclude aliens not properly documented

 

Q: Should Immigration officers be allowed to exercise these duties vis-à-vis Filipinos?

A: (Sir’s personal opinion) The law says jurisdiction of immigration officers is over aliens so BI’s have no authority.

 

 

OTHER EMPLOYEES

 

Sec. 7. Appointment and Salary. - All other employees of the Bureau of Immigration except as otherwise provided in this Act, shall be appointed by the Head of Department, upon the recommendation of the Commissioner of Immigration, in accordance with civil service rules and regulations, and they shall receive such salaries as may be assigned to them conformably to the provisions of Commonwealth Act Numbered Four hundred and two.

 

ASSIGNMENT OF IMMIGRATION EMPLOYEES TO OVERTIME. WORK

 
Sec. 7-A. Immigration employees may be assigned by the Commissioner of Immigration to do overtime work at rates fixed by him when the service rendered is to be paid for by shipping companies and airlines or other persons served.

 

BOARD OF COMMISSIONERS

 
Sec. 8. Decision of the Board. - The board of Commissioners, hereinafter referred to in this Act, shall be composed of the Commissioner of Immigration and the two Deputy Commissioners. In the absence of a member of the Board, the Department Head shall designate an officer or employee in the Bureau of Immigration to serve as a member thereof. In any case coming before the Board of Commissioners, the decision of any two members shall prevail.

 

Q. Summarize the powers of the Board of Commissioners.

A. Powers of the Board of Commissioners (ACABEE)

1.       Appellate jurisdiction in exclusion cases

2.       Orders cancellation of immigration or passport visas & re-entry permits obtained via fraud.

3.       Admits aliens previously removed or deported from the Philippines on the grounds of indigency.

4.       Authorizes and fixes amount of bail for the release of any respondent in deportation proceedings.

5.       Evaluate findings & recommendations of Board of Special Inquiry in deportation cases and submits report to President.

6.       Exclusive jurisdiction over findings & recommendations by the BSI in deportation.

Plus: determination of citizenship, if Filipino or not – if necessary in the exercise of its other functions [See Guan Case]

 

Q. What are the requisites for BoC action?

A. Requisites for Board Action (CQD)

1.       Commissioner convenes

2.       quorum

3.       decision of any 2 prevails provided commissioners personally participated

 

Q: Should the BoC convene together to decide or can they act out individually?

A: Technically, they have to convene as a body, as a Board (but this is not so in practice, although paper says as a Board)

 

Ngo Chiao Lin vs. Commissioner

[GR 21523 2/28/66]

 

è Temporary stay of aliens in the Philippines is but a privilege not a right subject to the dictates of public policy & the appropriate determination by the authorities vested with that power under the Immigration Law.

à Rights: can be exercised or granted by Constitution, Law or International Law

à Privilege: you cannot demand, but discretionary upon the government authority

è It cannot be argued that the extension of an alien’s stay cannot be rescinded to his prejudice

è Until the alien has taken his oath, he does not become a citizen of the Philippines (i.e., it is not enough that a judgment granting the application for naturalization has been granted)

è Petitioner contends that having been granted extension by the Secretaries of Foreign Affairs and of Justice pursuant to a Cabinet resolution, the Commissioner of Immigration has no power to deport him before the date, as the action of the two department secretaries, under the Presidential system of government, is tantamount to an act of the President himself, who under Section 47 of the Immigration Act is authorized to admit aliens as non-immigrants.  If the petitioner’s contention is true, the subsequent action of the new department secretaries concerned, in effect recalling the extension, is likewise a Presidential act and consequently of equal validity.

 

Ngo Chiao Lin Case

·         Temporary stay of aliens in the Philippines is but a privilege, not a right

à Rights: can be exercised or granted by Constitution, Law or International Law

à Privilege: you cannot demand, but discretionary upon the government authority

Aliens have the right to avail of rights under the Constitution (i.e., Bill of Rights – due process)

 

Gaw Lam vs. Conchu

[12SCRA344]

 

è The Secretary of Foreign Affairs is not authorized to admit aliens for temporary stay in the Philippines, or extend the period authorized by the Commissioner of Immigration for their stay in the Philippines

è The authority is w/ the Commissioner

è If Commissioner won’t allow, the remedy would be to address themselves to the President of the Philippine who is vested by law w/ the final authority to decide whether they should be deported or not (the matter is exclusively within the province of the Executive Department and unless all remedies therein are exhausted, courts will not interfere)

à Why not appeal 1st to the DOJ Secretary, since he’s not the immediate supervisor of the Commissioner?

è If alien’s application for extended stay is denied by the Commissioner, what’ll be the remedy of the alien?

A: Appeal to President because cases say Secretaries of Departments do not have authority, so direct appeal to the President.

è the condition imposed by the Undersecretary of Justice, in his 2nd Indorsement, for the wife & children to secure re-entry permits to HK valid at least 2 mos. over and beyond their extended stay & to maintain their cash bonds field with the Bureau of Immigration, was not complied with.

            à Instead, they made a request for a change of category from temporary visitors to that of special non-immigrants under Section 47(a) (2) of the Philippine Immigration Act which was denied by the Commissioner of Immigration

 

Gaw Lam Case

·         The Secretary of Foreign Affairs is not authorized to admit aliens for temporary stay in the Philippines, or extend the period authorized by the Commissioner of Immigration for their stay in the Philippines

·         The authority is w/ the Commissioner

·         If Commissioner won’t allow, the remedy would be to address themselves to the President of the Philippine who is vested by law w/ the final authority to decide whether they should be deported or not

à Why not appeal 1st to the DOJ Secretary, since he’s not the immediate supervisor of the Commissioner?

 

Q: If alien’s application for extended stay is denied by the Commissioner, what’ll be the remedy of the alien?

A: Appeal to President because cases say Secretaries of Departments do not have authority, so direct appeal to the President.

 

Ko Wai Me v. Galang, et al.

[106 Phil 661]

 

·                     Petitioner’s husband asked for the issuance of a temporary visitor’s visa in her favor. Commissioner Galang recommended the denial of said application because there was a previous decision of the Board of Commissioners finding Ko Wai Me guilty of illegal entry. The Board of Special Inquiry recommended allowance of her entry in the Philippines as it noted that although she was found guilty of having entered without inspection and admission, she was not deported as she left the country voluntarily on her own. The Commissioner ordered the petitioner’s exclusion. 

 

·                     The Supreme Court held that as the Board of Special Inquiry expressly mentioned that petitioner was ordered arrested, the mere fact that the petitioner herein voluntarily left the Philippines at her own expense did not have the effect of revoking the final order of deportation and the decision supporting the same.  It did not erase the fact that that she had entered the country surreptitiously and without permit from the proper authorities and with proper documents and is subject to deportation.

·                     Even admitting arguendo that as the petitioner herein is not a deportee, then at least, she is a person who has been excluded from the Philippines within the meaning of the 1st par., Sec. 29, (a) (15) of the Immigration Act. The decision of the Board of Immigration Commissioners ordering her deportation is conclusive evidence of this fact. As such, she can only be admitted when the Commissioner waives the application of the law in favor of allowing the alien to enter the Philippines.

 

Ko Wai Me Case

·         The mere fact that the petitioner voluntarily left the islands at her own expense did not have the effect of revoking the final order of deportation & the decision supporting the same

·         There’s already a decision & the penalty would be deportation

·         The mere fact that she voluntarily departed at her own expense did not erase the fact that she has entered the country surreptitiously & w/o permit from the proper authorities & w/ o proper documentation & is subject to deportation

·         Sec.29 says Commissioner can exclude those deported

 

Q: What if she deported before the finding of guilt, will she be allowed entry?

A: It all boils down to discretion of the Commissioner, but it must be reasonable, it must not be whimsical.  Commissioner may waive exclusion on reasonable grounds.

 

 

See Guan v. Commissioner of Immigration

[15 SCRA 451]

 

·                     See Guan’s wife and daughters were staying here in the Philippines as temporary visitors. After several extensions, they asked for another extension up to the time that See Guan will have been able to take his oath of allegiance as a citizen of the Philippines, which was denied by the Bureau of Immigration, which asked them to leave the country. Hence, See Guan filed a petition for Mandamus.

 

·                     The Supreme Court held that the Commissioner of Immigration has no ministerial duty to grant a petition for extension of the period of an alien’s stay in the Philippines. Hence, mandamus will not lie to compel him to do so. Neither does a writ of certiorari for, in the absence of an order by a competent authority, which under the Philippine Immigration Act of 1940 is no other than the Commissioner of Immigration, extending the period of a temporary visitor’s stay in the Philippines, it becomes the bounden duty of said Commissioner to proceed against the temporary visitor and his bond upon the expiration of his right to stay in the country. The decision granting See Guan’s petition for naturalization did not have the effect of imposing upon the respondent the duty to extend the period of time within which said visitors may stay in the Philippines.

·                     Then too, an alien admitted as non-immigrant cannot, pursuant to Section 9 of the aforementioned Act, change his status without first departing from the Philippines and complying with the other requirements of said section.

 

See Guan Case

·         W/N a prima facie case exists against an alien to warrant his deportation, the Commissioner may conduct preliminary proceedings & pass upon the validity of the marriage of an alien on which the question of her nationality depends

·         Only for the purpose of deciding on a matter of application of an alien for stay

·         Otherwise all that the alien has to do is to marry & will oust Commissioner of jurisdiction

·         Determination of validity of marriage is only provisional & only to determine application

Another power of the Commissioner is to determine citizenship, whether Filipino or not, although not given by Immigration Act, because necessary to the exercise of power by the Commissioner

 

Chan v. Galang

[18 SCRA 345]

 

·                     So Ming Lee, a Portuguese national, was a temporary visitor who contracted marriage with a Filipino citizen, Santos Chan. She petitioned for the cancellation of her alien certificate of registration and for her permanent stay in the Philippines. Such petition was denied because both So and Chan have previous marriages, their marriage to each other was void so that she could not have acquired Filipino citizenship. She was advised to leave the country.

 

·                     The Supreme Court held that an alien woman marrying a Filipino citizen does not by that fact alone become a Filipino. She has yet to prove that she has all the qualifications and none of the disqualifications enumerated in Sections 2 and 4 of the Naturalization Law before she may be deemed a Filipino citizen. Temporary stay being a mere privilege, temporary visitors are subject to deportation upon the expiration of the period of their stay. Prohibition will not prosper to prevent their deportation. If the alien remains after the expiration of his stay, he may be proceeded against preparatory to the institution of deportation proceedings. The alien’s remedy is to leave the country and then apply for re-entry.

·                     The issue of citizenship should first be threshed out in the Board of Commissioners, instead of in the courts.

·                     For the purpose of determining whether or not a prima facie case exists against an alien to warrant his deportation, the Commissioner of Immigration may conduct preliminary proceedings and pass upon the validity of the marriage of an alien on which the question of her nationality depends. 

·                     The bond posted to insure an alien’s departure after the expiration of his stay may be confiscated upon failure to produce the alien when ordered by the Commissioner, because the condition of the bond has thereby been violated. An alien’s bondsman seeking refund of the cash bond because of marriage of the alien to a Filipino husband, without proof that that alien herself may be naturalized, does not sufficiently show cause to obtain release of the bond.

·                     An alien who claims that, despite her failure to depart from the country within the period specified in the bond, there has been no breach thereof, has the burden of proving her alleged change of political status, from alien to citizen. This proof should first be given before the Board of Commissioners.

·                     Declaratory relief is discretionary upon the court to entertain. It may refuse to exercise the power to declare rights and to construe instruments in any case where the declaration or construction is not necessary and proper at the time under all the circumstances.

 

NONIMMIGRANTS

 

Sec. 9. Aliens departing from any place outside the Philippines, who are otherwise admissible and who qualify within one of the following categories, may be admitted as nonimmigrants:

 

(a) A temporary visitor coming for business or for pleasure or for reasons of health;

 

(b) A person in transit to a destination outside the Philippines;

 

(c) A seaman serving as such on a vessel arriving at a port of the Philippines and seeking to enter temporarily and solely in the pursuit of his calling as a seaman;

 

(d) Alien businessman. - An alien entitled to enter the Philippines under and in pursuance of the provisions of a treaty of commerce and navigation:

(1)     solely to carry on substantial trade principally between the Philippines and the foreign state of which he is a national; or

 
(2) solely to develop and direct the operations of an enterprise in which, in accordance with the Constitution and the laws of the Philippines he has invested or of an enterprise in which he is actively in the process of investing, a substantial amount of capital; and his wife, and his unmarried children under twenty-one years of age, if accompanying or following to join him, subject to the condition that citizens of the Philippines are accorded like privileges in the foreign state of which such alien is a national;

 

(e) An accredited official of a foreign government recognized by the Government of the Philippines, his family, attendants, servants, and employees;

 

(f) Higher than high school. - A student, having means sufficient for his education and support in the Philippines, who is at least eighteen years of age and who seeks to enter the Philippines temporarily and solely for the purpose of taking up a course of study higher than high school at a university, seminary, academy, college or school approved for such alien students by the Commissioner of Immigration;

 

(g) Prearranged employment. - An alien coming to prearranged employment for whom the issuance of a visa has been authorized in accordance with section twenty of this Act, and his wife, and his unmarried children under twenty-one years of age, if accompanying him or if following to join him within a period of six months from the date of his admission into the Philippines as a nonimmigrant under this paragraph. An alien who is admitted as a nonimmigrant cannot remain in the Philippines permanently. To obtain permanent admission, a nonimmigrant alien must depart voluntarily to some foreign country and procure from the appropriate Philippine consul the proper visa and thereafter undergo examination by the officers of the Bureau of Immigration at a Philippine port of entry for determination of his admissibility in accordance with the requirements.

 

Q: What are the general classes of visa granted by the Bureau of Immigration?  What’s Section 9 of the Immigration Act?

            A: 2 general categories of aliens

                        à Immigrant

                        à Non-immigrant

 

Immigrant

·         any alien departing from any place outside the Philippines destined for the Philippines, other than a non-immigrant

 

Visa Categories for Non-Immigrants (VISETOS)

1.       temporary visitor

2.       in transit

3.       student

4.       pre-arranged employment

5.       treaty trader or treaty investor

6.       foreign government official

7.       seaman

 


Sec.9 (d) Treaty Trader                          

working permit to aliens from countries w/ w/c Phils has treaties

Sec.9 (g) Pre-arranged employment

Notreaties


 

Q: Status of last paragraph of Section 9, i.e., non-immigrant must depart 1st before applying for permanent admission

            A: Abolished by PD 914

 

Types of Immigrant Visas

1.       Quota Immigrant

à not in excess of 50 of any one nationality or w/o nationality for any one calendar year

2.       Non-Quota Immigrant

à no numerical limits

 

 

DOCUMENTATION OF NONIMMIGRANTS

 

Sec. 10. Presentation of unexpired passport. - Nonimmigrants must present for admission into the Philippines unexpired passports or official documents in the nature of passports issued by the governments of the countries to which they owe allegiance or other travel documents showing their origin and identity as prescribed by regulations, and valid passport visas granted by diplomatic or consular officers, except that such documents shall not be required of the following aliens:

 

(A)    A child qualifying as a nonimmigrant, born subsequent to the issuance of the passport visa of an accompanying parent, the visa not having expired; and

 

(B)    A seaman qualifying as such under Section 9 (c) of this Act.

 

Sec. 11. The form and manner of applying for a passport visa and the form and validity of such passport visa shall be established by regulations.

 

Sec. 12. A passport visa shall not be granted to an applicant who fails to establish satisfactorily his nonimmigrants status or whose entry into the Philippines would be contrary to the public safety.

 

Passport

·         a formal document certifying a person’s identity & citizenship so that the person may travel to & from a foreign country

 

Visa

·         an official indorsement made out on a passport, showing that it has been examined & that the bearer is permitted to proceed

·         a recognition by the country in w/c a passport holder wishes to travel that the holder’s passport is valid

 

 

General Application Form

·         signed by applicant

·         notarized –> to make it a public document

à falsity will lead to criminal charge

 

Procedure for Application (RR2 LARO DCSF)

 

(1)     Comply with all requirements à

(2)     Give to Receiving Department à

(3)     Raffled to lawyers to review à

(4)     Hearing & Interview to determine if documents & information are authentic à

(5)     If lawyer is satisfied, recommend to BoC w/c will approve visa grant à

(6)     Order or notice granting visa (usually lump sum approval, together w/ many others) à

(7)     After visa is granted, apply for proper documentation à

(8)     If Immigrant Visa: get Immigrant Certificate of Registration; If staying > 6 months: get Alien Certificate of Registration (similar to the Community Certificate) à

(9)     Visa granted has to be stamped on the passport of alien à

(10) Take alien to BI for fingerprinting, submit picture for record purposes à After stamped, job is done

 

Important to note

·         Everytime alien w/ visa leaves the country, get exit clearance

o        If Immigrant, get re-entry permit

o        If Non-immigrant, get special return certificate

·         Travel agencies or law firms have to be accredited by BI

o        The representative will have to undertake training or seminar (Office Memo No.99-04)

·         Sometimes, BI asks for SPA

o        One of the jobs of BI is to issue recognition for dual nationality

·         If pre-arranged employment visa or immigrant visa, DFA to transmit application to BI and back

·         If tourist visa, DFA can grant but subject to BI approval

 

Special Laws

·         EO 226 (Special Investor Resident Visa)

o        $75,000 min

·         EO 63 (Investor Visa only for Tourist Related Project)

·         EO 1037 (Special Retiree’s Resident Visa)

o        At least 50 years

o        Remit $50,000

o        If younger, remit $75,000

·         EO 7227 (Act Creating SBMA)

o        Subic can give working visa or permanent status, only with regard to area covered

·         RA 6768 (Balikbayan Visa)

o        Former Filipinos can stay in the Philippines for 1 year, w/o any visa, w/o any fee

·         Miriam Visa (Temporary Resident Visa)

o        Created by Miriam

o        Only those foreign citizens whose country has reciprocity (with regard to Filipino spouse)

·         Amnesty Program

 

 

IMMIGRANTS

 

Sec. 13. Under the conditions set forth in this Act, there may be admitted into the Philippines immigrants, termed "quota immigrants" not in excess of fifty (50) of any one nationality or without nationality for any one calendar year, except that the following immigrants, termed "non-quota immigrants," may be admitted without regard to such numerical limitations.

 

The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in the Philippines under temporary stay may be admitted within the quota, subject to the provisions of the last paragraph of Section 9 of this Act. 

 

(a) The wife or the husband or the unmarried child under twenty-one. years of age of a Philippine citizen, if accompanying or following to join such citizen;

 

Q: If adopted child, can he be admitted as non-quota?

            A: Yes, because the law said children, no distinction

 

Q: Now, law says age of majority is 18 years old.  Immigration Act says child under 21 years of age.  Can a child, 20 years old, be admitted as non-quota?  Does the Philippines’ lowering of age of majority affect the Immigration Act?

            A: No, because 21 years old refers only to child of Philippine citizen

 

Q: Law says unmarried child under 21 years old of Philippine citizen, when does it apply?

A: It’s a situation where the child has dual citizenship, Filipino & alien.  Child may want to come in as foreigner.

 

 

(b) A child of alien parents born during the temporary visit abroad of the mother, the mother having been previously lawfully admitted into the Philippines for permanent residence, if the child is accompanying or coming to join a parent and applies for admission within five years from the date of its birth;

 

(c) A child born subsequent to the issuance of the immigration visa of the accompanying parent, the visa not having expired;

 

(d) A woman who was a citizen of the Philippines and who lost her citizenship because of her marriage to an alien or by reason of the loss of Philippine citizenship by her husband, and her unmarried child under twenty- one years of age, if accompanying or following to join her;

 

(e) A person previously lawfully admitted into the Philippines for permanent residence, who is returning from a temporary visit abroad to an unrelinquished residence in the Philippines;

 

(f) The wife or the husband or the unmarried child under twenty-one years of age, of an alien lawfully admitted into the Philippines for permanent residence prior to the date on which this Act becomes effective and who is resident therein, if such wife, husband, or child applies for admission within a period of two years following the date on which this Act becomes effective.

 

(g) A natural-born citizen of the Philippines, who has been naturalized in a foreign country, and is returning to the Philippines for permanent residence, including his spouse and minor unmarried children, shall be considered a non-quota immigrant for purposes of entering the Philippines.

 

 

Sec. 14. Persons with dual nationality - The nationality of an immigrant whose admission is subject to the numerical limitations imposed by Section Thirteen of this Act shall be that of the country of which the immigrant is a citizen or subject, self-governing dominions being treated as separate countries. The nationality of an immigrant possessing dual nationality may be that of either of the two countries regarding him as a citizen or subject if he applies for a visa in a third country, but if he applies for such visa within one of the two countries regarding him as a national, his nationality shall be that of the country in which he shall file his application.

 

Vivo v. Cloribel

[18 SCRA 713]

           

·                     Sy King Fong and her minor children applied for and were granted a passport visa to the Philippines for the purpose of visiting Sy King Fong’s husband, Co Chin, a Chinese resident in the Philippines and were allowed to stay for a period of 3 months while Co Chin’s application for naturalization was pending. Co Chin’s application for naturalization was granted.

·                     The Secretary of foreign Affairs approved respondents’ change in category from temporary visitors to special non-immigrants. The Secretary of Justice approved the extension of their stay. The Secretary of Foreign Affairs referred the matter to the Commissioner of Immigration who extended their stay.

·                     After the 1961 national elections, there was a change of administration. The new Secretaries of Foreign affairs and of Justice maintained that the power to extend the stay of aliens was vested by law in the Commissioner of Immigration, not in them. After the expiration of the period of their stay, the Commissioner of Immigration required the respondents to leave the country. 

 

·                                 The Supreme Court held that an extension of an alien’s period of stay being a matter of grace, and not a right, should be strictly construed.

·                     Under the law, only the Commissioner of Immigration is vested with the power and authority to grant such extensions. The Secretary of Foreign Affairs is not authorized to admit into the Philippines aliens for temporary stay, or extend the period authorized by the Commissioner of Immigration for their stay in the Philippines. Neither can the two Secretaries authorize the change of status from temporary visitors to special non-immigrants. 

·                     The marriage of an alien woman to a Philippine citizen does not automatically make her a Philippines citizen entitled to enjoy all the rights and privileges of citizenship. She must, as a prerequisite, establish satisfactorily in appropriate proceedings, that she has all the qualifications required by law. 

·                     As to foreign-born minor children, they are extended citizenship if dwelling in the Philippines at the time of the naturalization of the parent. Dwelling means lawful residence. 

·                     An alien’s obligation to send his children of school age to Philippine public schools or private schools must be complied with during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen.

·                     It is clear that if an alien gains admission to the Philippines on the strength of a deliberate and voluntary representation that he will enter only for a limited period of time, and thereby secures the benefit of a temporary visa, the law will not allow him subsequently to go back on his representation and stay permanently. To obtain permanent admission, a non-immigrant alien must depart voluntarily to some foreign country and procure from the appropriate Philippine Consul the proper visa and thereafter undergo examination by the officer of the Bureau of Immigration at a Philippine port of entry for determination of his admissibility in accordance with the requirements of the Philippine Immigration Act.           

 

Vivo v. Cloribel

·         under the express provisions of the Immigration Law, it’s the Commissioner of Immigration who’s vested w/ the power & authority to grant such extensions

·         not DOJ, not DFA

·         marriage of an alien to a Philippine citizen won’t automatically make alien a Filipino – she has to show that has all the qualifications & none of the disqualifications

·         to obtain permanent admission, a non-immigrant alien must depart voluntarily to some foreign country & procure from the appropriate Philippine consul the proper visa & thereafter undergo examination by the officers of the Bureau of Immigration  -- Sir says, abolished by PD 914

 

Singh v. Board of Commissioners of the Bureau of Immigration

[1 SCRA 543]

 

·                     Petitioner is a citizen of India who came into the Philippines as a non-preference quota immigrant, solely to establish a business of his own, namely to follow the occupation of a dry goods merchant.

·                     He was later arrested and upon investigation of the Board of Special Inquiry, petitioner testified that he was working as a guard or night watchman on eight-hour night shifts and for five days a week but that he did not give up his business, for he plied his trade at day time and on Saturdays and Sundays.

 

·         The Supreme Court held that The Philippine Immigration Act of 1940 expressly confers upon the Commissioner of Immigration “immediate control, direction and supervision of all officers, clerks and employees of the Bureau of Immigration.“ The Board of Commissioners may review, on appeal, the decision--including the findings of fact-- of the Board of Inquiry. Hence, the factual findings of such boards are not final and conclusive upon the Board of Commissioners.

·         An alien under a given status becomes subject to deportation upon change of such status. An alien, who was admitted on the faith of his representation that he would engage in business as a merchant but who in fact  worked as a security guard and “peddler” is subject to deportation.

·         A peddler is not a merchant, because the term “merchant” signifies “a person  engaged in buying and selling merchandise at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant does not engage in the performance of any manual labor except such as is necessary in the conduct of his business as such merchant”, whereas a peddler is “one who travels about from place to place making petty sales.

·         The admission of laborers, specially those unskilled--to which petitioner herein apparently belongs-- is, as a matter of policy, not favored, on account of the competition they may and will offer to local labor and the social and economic, as well as, often times, political and international problems that may result therefrom.

·         An unskilled laborer shall be excluded from entry unless he comes to the Philippines (1) in pursuance of a promise or offer of employment, express or implied, (2) with a visa issued by a consular officer, (3) authorized thereof by the Commissioner of Immigration, (4) upon proper application and satisfactory proof that no person can be found in the Philippines willing and competent to perform the labor or service for which the immigrant is desired and that the immigrant’s admission would be beneficial to the public interest. Thus, had petitioner herein not represented that he intended to be solely a dry goods merchant, he would not, and could not, have been admitted in the Philippines, for he had not complied with requirements (1) and (4).

·         In exclusion cases, the court has no power to overrule the findings of fact of the immigration authorities, unless such findings are manifestly unfair or the conclusions of the immigration authorities are arbitrary.

 

Singh v. BI

·         one of the grounds for deportation is violation of condition stated

·         Singh says he’s a dry goods merchant but it was found out that he’s working as night watchman

·         US jurisprudence says, status at time of entry or admission, not sought to be established

 

 

 

 

Tong Siok Sy vs. Vivo

[9 SCRA 876]

 

·                     Tong Siok Sy is a Chinese citizen who married a Filipino.

·                     An alien woman married abroad to a Fil citizen who came to the Phils only in 1961, does not, despite her taking oath of allegiance as a Fil citizen before a Fil vice-consul abroad, become a naturalized citizen.

·                     She follows the citizenship of her husband only if she has all the qualifications and none of the disqualifications for naturalization and in this case, she LACKED the residence requirement.

·                     The BI Commissioners has the power to reverse its previous ruling within 1 year counted from the date of its promulgation.

 

Tong Siok Sy v. Vivo

·         BoC can review BSI decision w/in 1 year

·         Marriage to a Filipino does not ipso facto make alien a Filipino, especially here, where BoC found that 10 year residency requirement

 

Arocha vs. Vivo

[21 SCRA 532]

 

·         Pedro Gatchalian was admitted as a Fil upon entry; Sec. of Justice issued a Memo to review all cases of entry; PG was ordered excluded; he alleged that the decision originally dated July 20 was erased and superimposed with July 6.

·         ISSUE: True date when the BoC reversed the decision of the BSI (W/N within the 1 year period provided in Sec 27b of CA 613, as amended by RA 503, which empowers the Board to review the BSI’s decision)

·         Operative date of Commissioners action is when the resolution of exclusion was voted and adopted by them as a Board (July 6), regardless of date when decision in extenso was prepared, written and signed (July 20).

·         Individual action by the members is unlawful and renders nugatory the purposes for its constitution as a Board.

·         Immigrant is not entitled to be heard in review by the BoC; this arises only when he appeals to an adverse decision of the BSI.

 

Arocha v. Vivo

·         Composition of BoC:

o        1 Commissioner & 2 Deputy Commissioners

o        In the absence of a member, department head shall designate an officer or employee in the BI to serve as member thereof

·         If there’s quorum, 2 out of 3, Board can function

·         If there’s a tie, appoint another

·         BoC decides on matters of deportation & issuance of visa

o        Visas, law says only for pre-arranged employment – but in practice, all kinds of visas are passed upon by them

 

Commissioner vs. Fernandez

[11 SCRA 184]

 

·         Teban Caoili was admitted as a Fil, he exercised the rights and prerogatives accorded to such; new BoC reviewed motu proprio the decision of the old Board and excluded TC, as aliens not properly documented.

·         The law does not authorize a new BoC to review the decision of its predecessor Board, but only that of the BSI.

·         Review of the BoC, if authorized, should be made in accordance with due process (e.g. right to a hearing).

·         The Court of Appeals has jurisdiction to entertain an appeal by a citizen being deported as an alien and to order his provisional release on bail

 

Commissioner vs. Arca

[130 P 828]

 

·         SyKib was admitted as a temp visitor and then as a pre-arranged employee for Ang Pao & Co. where she invested $10,000 and worked as a cashier and treasurer; her authorized stay already lapsed.

·         The administration of immigration laws is the primary responsibility of the executive branch of the government.

·         Extensions of stay of aliens are discretionary on the part of immigration authorities and neither a petition for mandamus nor certiorari can compel the Commissioner to extend the stay when period has already expired.

·         Recourse is to the President of the Phils who has final authority on questions of naturalization.

·         After the husband has been granted his petition but before oath as a citizen, his wife & children whose period of stay has expired must leave the country and then secure permission to re-enter permanently.

 

De Bisschop vs. Galang

[118 P 246]

 

·         De Bisschop was allowed to stay as a pre-arranged employee; when he applied for extension of stay it was denied due to reports that the company he is working for is used as a gambling front and that he has evaded payment of taxes; he requested for a copy of the adverse decision of the Bureau and was advised that no formal decision, order or resolution is promulgated by the Board.

·         Phil Immig Act is silent as to procedure to be followed in matters of petition for extension HENCE courts have no jurisdiction to review purely admin practice of immig authorities because of PRACTICABILITY & EXPEDIENCY, of not granting formal hearings.

·         Due process clause is not violated since a day in court is not a matter of right in admin proceedings.

·         Nothing in the law that decisions of BoC for extension of stay of aliens be in writing.

·         “Decision” in Sec. 8 refers to number of votes necessary to constitute decision of the Board.

·         Use of habeas corpus to test the legality of an alien’s confinement & proposed expulsion from the Phils will bar the issuance of a writ of prohibition.

 

EXCLUDED CLASSES

 

Sec. 29. (a) The following classes of aliens shall be excluded from entry into the Philippines:

 

(1) Idiots or insane persons and persons who have been insane;

 

(2) Persons afflicted with a loathsome or dangerous contagious disease, or epilepsy:

 

(3) Persons who have been convicted of a crime involving moral turpitude;

 

(4) Prostitutes, or procurers, or persons coming for any immoral purposes;

 

(5) Persons likely to become, public charge;

 

(6) Paupers, vagrants, and beggars;

 

(7) Persons who practice polygamy or who believe in or advocate the practice of polygamy;

 

(8) Persons who believe in or advocate the overthrow by force and violence of the Government of the Philippines, or of constituted lawful authority, or who disbelieve in or are opposed to organized government, or who advocate the assault or assassination of public officials because of their office, or who advocate or teach principles, theories, or ideas contrary to the Constitution of the Philippines or advocate or teach the unlawful destruction of property, or who are members of or affiliated with any organization entertaining or teaching such doctrines;

 

(9) Persons over fifteen years of age, physically capable of reading, who cannot read printed matter in ordinary use in any language selected by the alien, but this provision shall not apply to the grandfather, grandmother, father, mother, wife, husband or child of a Philippine citizen or of an alien lawfully resident in the Philippines;

 

(10) Persons who are members of a family accompanying an excluded alien, unless in the opinion of the Commissioner of Immigration no hardship would result from their admission;

 

(11) Persons accompanying an excluded person who is helpless from mental or physical disability or infancy, when the protection or guardianship of such accompanying person or persons is required by the excluded person, as shall be determined by the Commissioner of Immigration;

 

(12) Children under fifteen years of age, unaccompanied by or not coming to a parent, except that any such children may be admitted in the discretion of the Commissioner of Immigration, if otherwise admissible;

 

(13) Stowaways, except that any stowaway may be admitted in the discretion of the Commissioner of Immigration, if otherwise admissible;

 

(14) Persons coming to perform unskilled manual labor in pursuance of a promise or offer of employment, express or implied, but this provision shall not apply to persons bearing passport visas authorized by Section Twenty of this Act;

 

(15) Persons who have been excluded or deported from the Philippines, but this provision may be waived in the discretion of the Commissioner of Immigration: Provided, however, That the Commissioner of Immigration shall not exercise his discretion in favor of aliens excluded or deported on the ground of conviction for any crime involving moral turpitude or for any crime penalized under Sections Forty-Five and Forty-Six of this Act or on the ground of having engaged in hoarding, black-marketing or profiteering unless such aliens have previously resided in the Philippines immediately before his exclusion or deportation for a period of ten years or more or are married to native Filipino women;

 

(16) Persons who have been removed from the Philippines at the expense of the Government of the Philippines, as indigent aliens, under the provisions of section forty-three of this Act, and who have not obtained the consent of the Board of Commissioners to apply for readmission; and

 

(17) Persons not properly documented for admission as may be required under the provisions of this Act.

 

(b) Notwithstanding the provisions of this Section, the Commissioner of Immigration, in his discretion, may permit to enter any alien properly documented, who is subject to exclusion under this section, but who is:

(1) An alien lawfully resident in the Philippines who is returning from a temporary visit abroad;

(2) An alien applying for temporary admission.

 

DEPORTATION OF ALIENS

 
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien:

 

(1) Any alien who enters the Philippines after the effective date of this Act by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than at a designated port of entry;

 

(2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;

 

(3) Any alien who, after the effective date of this Act, is convicted in the Philippines and sentenced for a term of one year or more for a crime involving moral turpitude committed within five years after his entry to the Philippines, or who, at any time after such entry, is so convicted and sentenced more than once;

 

(4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;

 

(5) Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management of a house of prostitution, or is a procurer;

 

(6) Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry;

 

(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a nonimmigrant;

 

(8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines;

 

(9) Any alien who commits any of the acts described in sections forty-five and forty-six of this Act, independent of criminal action which may be brought against him: Provided, That in the case of an alien who, for any reason, is convicted and sentenced to suffer both imprisonment and deportation, said alien shall first serve the entire period of his imprisonment before he is actually deported: Provided however, That the imprisonment may be waived by the Commissioner of Immigration with the consent of the Department Head, and upon payment by the alien concerned of such amount as the Commissioner may fix and approved by the Department Head;

 

(10) Any alien who, at any time within five years after entry, shall have been convicted of violating the provisions of the Philippine Commonwealth Act Numbered Six Hundred and Fifty-Three, otherwise known as the Philippine Alien Registration Act of 1941,  or who, at any time after entry, shall have been convicted more than once of violating the provisions of the same Act;

 

(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;

 

(12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four hundred and seventy-three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship;

 

(13) Any alien who defrauds his creditor by absconding or alienating properties to prevent them from being attached or executed;

 

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of this Section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause for deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court, or judge thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported.

 

(c) No alien shall be deported without being informed of the specific grounds for deportation nor without being given a hearing under rules of procedure to be prescribed by the Commissioner of Immigration.

 

(d) In any deportation proceeding involving the entry of an alien the burden of proof shall be upon the alien to show that he entered the Philippines lawfully, and the time, place, and manner of such entry, and for this purpose he shall be entitled to a statement of the facts in connection with his arrival as shown by any record in the custody of the Bureau of Immigration.

 

(e) Any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration.

 

Grounds for Deportation (CPCN  FOHAP)

1.       Convicted

a.      1 yr + w/in 5 years

b.      > 1 time

c.      prohibited drugs

d.      Alien Registration Act

e.      Naturalization Law

2.       Prostitution

3.       Condition violation

4.       Not lawfully admissible

5.       False & Misleading Statement

6.       Overthrow by Force

7.       Hoarding

8.       Absconding

9.       Public charge w/in 5 years from causes not subsequent to entry

 

revised rules on deportation

 

Rule I. Deportation Proceedings. Nature and Conduct – Deportation proceedings are administrative in character, summary in nature and need not be conducted strictly in accordance with ordinary court proceedings.

 

Rule II. Deportation.  How Initiated. – A complaint for deportation may be commenced by a verified complaint.  An Intelligence Report based on an official investigation or referal by a government office may also initiate deportation proceedings.

 

Rule III. Contents of a Verified Complaint. – A complaint for deportation shall be verified.  It shall specify the name of the aline, the known address and the specific act or acts constituting a violation of C.A. 613 as amended.

 

An Intelligence Report under Rule I of these Rules need not be verified, but must state the information in the preceding paragraph. 

 

This Rule shall also apply to all complaint for deportation on the ground of undesirability.

 

Rule IV.  Action on a Complaint Alleging Crime or Felony. – A complaint for deportation alleging a crime or a felony shall be immediately referred to the appropriate government agency.  If a crime or felony involves moral turpitude, however, the complaint shall proceed as provided under Rule VI of these Rules.

 

Rule V. Action of a Complaint for Sum of Money.  Where a complaint for deportation is an action for a sum of money, the complainant shall be advised in writing to seek reflief at the appropriate government agency.  However, a complaint that alleges that the alien will defraud his creditors by absconding or alienating properties to prevent them from being attached or executed shall proceed as provided under Rule VI of these Rules.

 

Rule VI. Where to File Complaint for Deportation – A complaint for deportation shall be filed at the Office of the Commissioner, for determination of a prima facie case.  A prima facie case for deportation shall be immediately referred to a Special Prosecutor, for the preparation of charges.  The Commissioner shall dismiss a complaint for deportation where there is the absence of a prima facie case.

 

Rule VII. Duty of a Special Prosecutor.  When Dismissal is Ineffective. – The Special Prosecutor shall have within 3 days from receipt of a copy of the Intelligence Post Mission Report to prepare written charges against an alien, who is under the custody of this Bureau.  The written charges shall be attached to the deprotation recrods of the alien.  the alien, his counsel and his embassy shall be provided with a certified true copy of the charges within the same period.  Proof of notice/service shall be attached to the Special Prosecutor’s copy of the charges.

 

Rule VIII. Transmittal of Deportation Records to the Executive Director. – The Special Prosecutor shall transmit the entire deportation recrods under Rule I to the Executive Director who shall assign a docket number and p repare 3 copies for the Board of Commissioners.  He shall also maintain a copy of the deportation records for the Executive Office.

 

Rule IX.  Submission of Memoranda. – Upon his receipt of the charges under Rule I, the alien shall submit 4 copies of his verified memorandum to the Executive Director.  The memorandum shall raise all available defenses with true copies of the documentary evidence, if any.  The Executive Director shall forward a copy of the memorandum to the Special Prosecutor.  The Special Prosecutor shall then file his comment and/or opposition to the Executive Director within 3 days from receipt thereof.

 

Rebuttal and sur-rebuttal memorandum and/or evidence shall not be allowed.  Only 1 motion for extension, for a period not exceeding 3 days, shall be entertained under these Rules.  Neither shall any other pleading be entertained.

 

Rule X. Setting for Deliberation. – Upon submission of the memoranda of the alien and the Special Prosecutor, the Executive Director shall set a date for deliberation by the board of Commissioners.  Each of the Commissioners shall be provided with advance and complete copies of the deportation records, at least 3 days before the date set for deliberation.

 

Rule XI.  Resolution of Memoranda. Judgment. – The Board of Commissioners shall convene as a collegial body on a date set for deliberation to resolve the memoranda of the Special Prosecutor and the alien.  The Judgment shall indicate a brief narration of facts, the findings of the Board of Commissioners, the issues involved and a definitive ruling.  The Executive Director shall be provided with a certified true copy of the Judgment.

 

Rule XII.  Promulgation of Judgment. – The Executive Director shall promulgate the Judgment of the Board of Commissioners.  Promulgation may be effected by direct service of a certified true copy of the Judgment to the alien, his counsel or the embassy concerned.  Proof of service shall be attached to the Judgment, for record purposes.  A certified true copy of the Judgment shall also be transmitted to the Office of the President.

 

Rule XIII.  Motion for Reconsideration. – The alien shall have within 3 days from receipt of a copy of the Judgment under these rules to file 4 copies of a verified motion for reconsideration.  No other pleading shall be entertained.  The Executive Director shall immediately inform the Board of commissioners of said motion.  Thereafter, the Board of Commissioners shall resolve the motion within 2 days.

 

Rule XIV. When Judgment Becomes final and Executory. – The Judgment of the Board of Commissioners shall become final and executory after 30 days from the date of promulgation, unless within such period, the President shall order the contrary.

 

Rule XV.  Effect of Petition for the Privilege of Writ of Habeas Corpus. – A petion for the privilege of the writ of habeas corpus does  not stay deportation proceedings, after charges have been filed by the Special Prosecutor under Rule VII of these rules.

 

Rule XVI.  When Summary Deportation Allowed. – If a foreign embassy cancels the passport of an alien, or does not re-issue a valid passport/travel document, the alien loses the privilege to remain in the Philippines.  In such case, the Special Prosecutor shall immediately prepare charges and provide a copy to the Executive Director.  The Executive director shall then prepare a Summary Deportation Order for immediate action by the Board of Commissioners.

Summary deportation, however, shall not be allowed if the alien will avoid prosecution for any crime, felony or civil liability committed in the Philippines.

 

Rule XVII.  Release on Bail or Recognizance. – Petitions for bail shall be filed atht eOffice of the Commissioner.  No alien shall be released on bail or recognizance except upon meritorious grounds to be determined by the Commissioner of Immigration.

 

Rule XVIII.  Weekly Reports of Pending complaints for Deportation.  Each Special Prosecutor shall submit a weekly report of all pending complaints for deportation to the Executive Director, who shall monitor the status of each complaint on a regular basis.  No complaint for deportation shall, however, remain inactive for more than 10 days. 

 

X X X

 

Q: What is the nature of deportation proceedings?

            A: Summary & Administrative à requires only substantial evidence

 

Q: How do deportation proceedings start?

A: Either a verified complaint (with the name of the alien, address of the alien & acts) or via an Intelligence Report

 

Q: What’s the requirement of due process in Administrative Proceedings?

A:  Start (Verified Complaint or Intelligence Report)à

Commissioner to see if there’s a prima facie case à

If there is, refer to Special Prosecutor, who’ll prepare written charges à

Special Prosecutor to transmit copy to the Executive Director à

Alien to submit memo reciting his defense à

Special Prosecutor to submit comment/ opposition à

Only 1 Motion for Extension (3 days) à

Board of Commissioners as collegial body to deliberate à

Judgment to be served on (alien, counsel or embassy, and OP) à

MR w/in 3 days à

30 days from promulgation (final & executory) E: OP orders o.w. à

Deportation Proceedings even if HC

           

è Summary Deportation

o        cancelled or unissued passport

o        not allowed if it’ll avoid prosecution

è Bail determined by Commissioner

è No inactive complaint for > 10 days

 

Summary Deportation

·         There is no more hearing

·         When foreign embassy cancels passport or won’t reissue then Special Prosecutor immediately prepares charges & furnishes copy to Executive Director

·         Executive Director to prepare Summary Deportation Order for immediate action by the BoC

 

Q: Is an alien entitled to right to bail?

A: No.  Deportation proceedings are not criminal in nature, so no Constitutional right to bail.  No law says it’s alien’s right.

 

Q: When is bail allowed for aliens?

A: If during pendency of deportation.  Commissioner of Immigration has discretion (subject to limitations for abuse), upon meritorious grounds.  If deportation order has been handed, no more bail.

 

 

 

 

Ong See Hang v. Commissioner of Immigration

[4 SCRA 442]

 

·                Section 37 (9) of the Immigration Act confers upon the Commissioner of Immigration, to the exclusion of the courts of justice, the power and discretion to grant bail and to impose the conditions thereof, in deportation proceedings, but does not grant aliens the right to be released on bail.

·                The power of the Commissioner of Immigration to grant bail in deportation proceedings should be exercised while the alien is still under investigation and not after the order of deportation has been issued by the Board of Immigration.

·                Since deportation proceedings do not constitute a criminal proceeding and an order of deportation is not punishment for a crime, the right to bail guaranteed by the Constitution may not be invoked by an alien in said proceedings.

·                     When an alien’s continued stay in the Philippines is unlawful and in defiance of Immigration laws, and when an alien continues to stay illegally, not because of impossibility of his deportation but of circumstances of his own making, he should not be ordered released on bail pending his actual deportation.

 

Republic vs Republic Surety

[22 SCRA 1360]

 

·         Mr. Go, a Chinese citizen, arrived here as a temporary visitor. An Order of deportation was issued when he was later found to be overstaying. While the Order was yet to be executed, Republic Surety posted a bond in favor of the Commissioner for the temporary admission of Go. After nine years, Mr. Go was required to report to the Commissioner. Having failed to do so, the bond was forfeited. However, the new commissioner issued an Order declaring the bond ­­void ab initio on the ground that (which was affirmed by the SC):

“Sec. 40(a) of the Immigration Act does not authorize the Commissioner to accept a bond for the temporary liberty of a person already ordered deported.”

·         On said ground, this appeal by the Republic of the Philippines was dismissed by the SC.

 

Magno v. Court of Appeals

[GR 1011148]

 

·         A relief for bail prayed for in a petition for habeas corpus when granted, renders the main petition moot and academic insofar as it questions the legality of the arrest and detention. A habeas corpus proceeding extends to all cases of illegal confinement or detention by which a person is deprived of his liberty. The validity of an arrest ceases to be an issue because the decision in the deportation proceedings will not result in permanent or prolonged detention but exclusion or departure from the country. Thus, subsequent commitment to the custody of the CID when found to be an undesirable alien after proceedings in the proper forum will have no more connection with the questioned warrantless arrest and subsequent detention.

 

·         Factual controversies must first be resolved before the Bureau of Immigration and Deportation. The Supreme Court is not a trier of facts.

 

Magno v. CA

·         One of the grounds cited by petitioner alien is constitutional right to bail.

SC implicitly agrees with it.

 

Go Tian Chai vs. Commissioner of Immigration

18 SCRA 42]

 

·         There is nothing “unjust” in the detention of unlawfully overstaying Chinese nationals pending their actual deportation to their own country in case its continuance is through no fault of our own government and of our officials.

·         Aliens deportation proceedings, as a rule, have no right to bail. Sec. 37 of the Philippine Immigration Act of 1940 (Com Act # 613, as amended) confers upon the Commissioner of Immigration the power and discretion to grant bail in deportation proceedings but does not grant to aliens the right to be released on bail. The grant of bail is merely permissive and not mandatory or obligatory on the part of the Commissioner. The determination as to the propriety of allowing an alien, subject of deportation under the Immigration Act, to be released temporarily on bail as well as the conditions thereof, falls within the exclusive jurisdiction of the Commissioner, and not in the courts of justice.

 

Lao Gi vs. CA

[180 SCRA 756]

 

·                     Before any alien may be deported upon a warrant of the Commissioner of Immigration, there should be a prior determination by the Board of Commissioners of the existence of the ground as charged against the alien.

·                     While it is not disputed that it is also within the power and authority of the Commissioner to require an alien to register, such a requirement must be predicated on a positive finding that the person who is so required is an alien. Where the very citizenship of the alien is in issue there should be a previous determination by the CID that they are aliens before they may be directed and required to register as aliens.

·                     Although a deportation proceeding does not partake of the nature of a criminal action, considering it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the Consti right of such person to due process should not be denied. Thus, the provisions of the Rules of Court particularly on crimpro are applicable to deportation proceedings.

·                     Hence, the charge against an alien must specify the acts or omissions complained of which must be stated in ordinary and concise language to enable a person of common understanding to know on what ground he is intended to be deported.

·                     Before any charge should be filed in the CID  a preliminary investigation must be conducted to determine if there is sufficient cause to charge the respondent for deportation.

 

Galang v. CA

[GR L-15569, 30 May 1961]

 

Ø                   Tee Hok Chun was a subject of the warrant of exclusion issued by the Immig officials, for violation of Sec 29 (a) (17) of the Immig Act for not being properly documented. Heis under Immig detention.

Ø                   A crim case was also filed in court for violation of Sec 45 (e) of the Immig Act for fraudulently representing himself as a Filipino.

Ø                   Trial court grants bail in crim case, but the court went ob and ordered the release of Tee from Immig detention.

Ø                   Trial court says the warrant of exclusion became ineffective upon the filing of the crim case referred to.

 

v                  Sec 29 (a)(17) ground for exclusion is different from sec 45 (e)

 

v                  Sec 29 (a)(17) provides as ground for exclusion, “Persons not properly documented for admission as may be required under the provisions of this Act.

 

v                  Sec 45 (e) punishes any individual who “Being an alien, shall for any fraudulent purpose represent himself to be a Philippine citizen in order to evade any requirement of the immigration laws.

 

v                  Sec 29 (a)(17) maybe violated by an alien, who without claiming to be a Filipino, seeks entry, either

 

1.       in his true name, as an alien, but without the documents necessary therefore. Or

2.       by impersonating another alien, and with no more documents than those authorizing the latter’s entry.

 

v                  In neither case may he be prosecuted criminally under Sec 45 (e)

 

Ong Se Lun vs. Board of Immigration

[95 P 785]

 

·                      The decision of the Board of Special Inquiry, like that of any other admin body, does not constitute res judicata so as to bar reexamination of the alien’s right to enter or stay.

 

·                      All other doctrines found in codal.

 

 

Qua Chee Gan v. Deportation Board

[9 SCRA 27]

 

·                     Under the law, deportation of an undesirable alien may be effected in two ways: 1.) by order of the President, after due investigation, pursuant to 69 of the Revised Admin Code or 2.) by the Commissioner of Immigration, upon recommendation by the Board of Commissioners under 37 of the Immigration Act.

 

·         What are the ways to deport an alien?

o        By order of President, after investigation, pursuant to the Revised Administrative Code

o        By Commissioner of Immigration, upon recommendation of BoC

·         Revised Administrative Code of 1987 says that the President has the power to deport upon observance of due process of law

·         Immigration Act of 1940 is the basis of Commissioner’s power to deport

 

Q: Can the power to deport be delegated?

            A: No

 

Q: LOI 27, in 1972, function of Deportation Board is now reassigned to BoC, what is the relevance?

 

Q: If the BoC is deporting an alien, what are the grounds?

            A: Sec.37 Immigration Act of 1940

 

Q: What if the BoC is acting as deportation board, what’s the ground?

            A: Administrative Code of 1987 does not list grounds, it only says observance of due process

 

Q: Can the BoC now deport on any other ground, e.g., being undesirable?

            A: Sir’s personal opinion, if outside Sec.37, BoC must recommend only to President

 

Q: EO 287 allows BI to issue Mission Orders, meaning?

A: Allows BI to conduct verification & investigation & if probable cause exists, effect warrantless arrests.

 

In Practice

1.       Arrest

2.       Investigation by lawyers

3.       Charges

4.       BSI requires Memo

5.       No more trial

 

Harvey vs. Defensor Santiago

[162 SCRA 140]

 

·         The ruling in Vivo v. Montesa that “the issuance of warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and before the final order of deportation is issued conflicts with the Constitution” is not invocable herein. The Warrant of Arrest in this case did not order petitioners to appear and show cause why they should not be deported. They were issued specifically for violations of Sec. 37, 45 and 46 of the Immigration Act and Sec. 69 of the Revised Admin Code. Before that, deportation proceedings had been commenced against them as undesirable aliens and the arrest was a step preliminary to their possible deportation.

·         In deportation proceedings, right to bail is not a matter of right but of discretion on the part of  the Commissioner of Immigration.

 

Board of Commissioners v. dela Rosa

[197 SCRA 853]

 

·          The Bureau of Immigration is not equal in rank as the RTC, hence, its decisions are not appealable to and may not be reviewed by the RTC.

·          The Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against an alleged alien and, in the process, determine also their citizenship.

·          The primary jurisdiction of the Bureau of Immigration over deportation proceedings admits of exceptions i.e. judicial intervention may be resorted to in cases where the claim of citizenship is so substantial that there are reasonable grounds to believe that the claim is correct. When the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings. If he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished the investigation of his undesirability.

·          The doctrine of res judicata does not apply to questions of citizenship. Res judicata may be applied in cases of citizenship only if the following requisites are present: 1.) a person’s citizenship must be raised as a material issue in a controversy where said person is a party. 2.) the Solicitor General took active part in the resolution thereof; and 3.) the finding of citizenship is affirmed by this Court.

·          A warrant of arrest issued by the Commissioner of Immigration for purposes of investigation only is null and void for being unconstitutional. Section 37 (a) states that “the following aliens shall be arrested upon warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.” In matters of implementing the Immigration Act insofar as deportation of aliens are concerned, the Commissioner may issue warrants of arrest only after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien. A warrant of arrest issued by the Commissioner, to be valid, must be for the sole purpose of executing a final order of deportation.

·             Deportation shall not be affected unless the arrest in the deportation proceedings is made within five years after the cause for the deportation arises.

·          No prosecution and subsequent deportation for violation of the offenses enumerated in the Immigration Act can be initiated beyond the eight-year prescriptive period, the Immigration Act being a special legislation.

·          The power to deport an alien is a police measure against undesirable aliens whose presence in the country is found to be injurious to the public good and the domestic tranquility of the country.

 

Djumantan v. Domingo

[240 SCRA 746]

 

·   The civil status of an alien applicant as temporary visitor is a matter that could influence the exercise of discretion on the part of the immigration authorities. Any misrepresentation made in securing entry into the country and the change of immigration status from temporary visitor to permanent resident is a blatant abuse of immigration laws.

·   Generally, the right of the president to expel or deport aliens whose presence is deemed inimical to public interest is as absolute and unqualified as the right to prohibit and prevent their entry into the country. This right is based on the fact that since the alien as are not part f the nation, their admission into the territory is a matter of  permission and simple tolerance which creates no obligation on the part of the government to permit them to stay.

·   Marriage of an alien woman to a Filipino citizen does not ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from the country upon the expiration of her extended stay here as an alien.

·   The entry of aliens into the country and their admission as immigrants is not a matter of right even if they are legally married to Filipino citizens. It is not mandatory for the CID to admit any alien who applies for a visitor’s visa. Once admitted into the country, the alien has no right to an indefinite stay. Under Sec. 13 of the Immigration Act, an alien allowed to stay temporarily may apply for a change of status and may be admitted as a permanent resident. Among those qualified to apply for permanent residency is the wife or husband of a Filipino citizen.

·   Under clause 1 of sec. 37 (a), an “alien who enters the Philippines… by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than a designated port of entry is subject to deportation. The deportation of an alien under said clause has a prescriptive period and shall not be affected… unless the deportation proceedings is made within five years after the cause for deportation arises.” The prescriptive period for deportation is counted from the time the fact of illegal entry is brought to the attention of immigration authorities.

·   The “arrest” contemplated by sec. 37 (b) of the Immigration Act refers to the arrest for the purpose of carrying out an order for deportation and not the arrest prior to proceedings to determine the right of the alien to stay in the country.

 

 

 

 

 

 

 

PENAL PROVISIONS

 
Sec. 45. Any individual who:

 

(a) When applying for an immigration document, impersonates another individual, or falsely appears in the name of deceased individual, or evades the immigration laws by appearing under an assumed or fictitious name; or

 

(b) Issues or otherwise disposes of an immigration document to any person not authorized by law to receive such document; or

 

(c) Obtains, accepts or uses any immigration document, knowing it to be false; or

 

(d) Being an alien, enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by willful, false, or misleading representation or willful concealment of a material;

 

(e) Being an alien shall, for any fraudulent purpose, represent himself to be a Philippine citizen in order to evade any requirement of the immigration laws: or

 

( f ) In any immigration matter, shall knowingly make under oath any false statement or representations; or

 

(g) Being an alien shall depart from the Philippines without first securing an emigration clearance certificates required by Section Twenty-Two-A of the Act; or 

 

(h) Attempts or conspires with another to commit any of the foregoing acts, shall be guilty of an offense, and upon conviction thereof, shall be fined not more than one thousand pesos, and imprisoned for not more than two years, and deported if he is an alien.

 

Republic vs Cloribel

[9 SCRA 453]

 

·                     Vicente Kho after protracted hearing was found to have committed tax evasion. The President issued deportation order but the same was not carried out. When the new administration took over, the new President issued another order of deportation against Kho.

·                     An alien who is being held for deportation upon orders of the President may not be released on bail.

·                     When an alien is detained by the BI for deportation pursuant to an order by the Deportation Board, the courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it.

 

Chiong Tiao Bing, et al. vs Commissioner of Immigration

[99 SCRA 1020]

 

·                     The requirement that an alien under a temporary visa should first abandon the Phils before seeking permanent admission therein, applies only to an alien who gains admission to the Islands on the strength of a deliberate and voluntary representation that he will enter only for a limited time, and thereby secures the benefit of temporary visa. It does not apply to minor aliens who have always claimed to be entitled to permanent entry as returning residents, whose claim was well known to and did not mislead the Government and who accepted a temporary visa to escape the Communist invasion.

·                     An order of the Deputy Commissioner of Immigration declaring an alien entitled to permanent stay can not be validly revoked or set aside without notice to and due hearing.

 

Andreu vs. Commissioner of Immigration

[90 SCRA 347]

 

·                     The facts being similar to those of Mejoff vs. Director of Prisons, Borovsky vs. Commissioner of Immigration, Chirskoff vs. Commissioner of Immigration (stateless persons), it was held that the petitioner should be released from custody under the same terms and conditions as in those three cases (be placed under reasonable surveillance of the immigration authorities or their agents and filing of bond).

 

Tan Seng Pao vs. Commissioner of Immigration, et al.

[107 SCRA 742]

 

·                     A decision of the Board of Immigration ordering deportation of petitioner in a deportation proceedings may be considered still pending, because petitioner himself has filed a motion for reconsideration of the said decision. The petition for habeas corpus to prevent deportation was improper and premature, because the board had yet to act on the said motion for reconsideration.

·                     Before a petition for habeas corpus be filed by a deportee to prevent his deportation, he must first exhaust all the administrative remedies available, such as filing with the Commissioner of Immigration a petition for release on bail pending execution of the order of deportation.

 

Bayer vs. Board of Commissioners of BI

[3 SCRA 160]

 

·                     Petitioner had been issued WOA, on 3 different occasions, on account of his repeated violation of the conditions of his permit to temporarily remain in this country, his expulsion had always been stayed by the immigration authorities in the latter’s consideration to give him a chance to legalize his stay here.

·                     Where a petition for certiorari was filed while the deportation proceedings object of the petition is still pending before the BOC of the BI, and it does not appear that the said Board is unduly delaying its decision, the petition should be dismissed for being premature.

·                     “Unless it is shown that the deportee is being indefinitely imprisoned under the pretense of awaiting a chance for deportation or unless the Government admits that it can not deport him or unless the detainee is being held for too long a period, our courts will not interfere.”

 

Vivo v. Montesa

[24 SCRA 155]

 

Ø                   The Bureau of Special Inquiry investigation showed that respondents are Filipinos for being the sons of Isaac Calacday, a Filipino.

Ø                   Mr. Isaac Calacday later on says that the respondents are not his sons. Based on this, the Commissioner of Immigration issued warrants of arrest against the respondents to show cause why they should not be deported, based on false and misleading statement and for being not lawfully admissible.

Ø                   The trial court issues a restraining order.

 

v                  The court has no jurisdiction to restrain deportation proceedings. These proceedings are within the jurisdiction of the Immigration authorities under Sections 28 and 37 of the Philippine Immigration Act. That jurisdiction is not tolled by a claim of Filipino citizenship, where the Commissioner or Commissioners have reliable evidence to the contrary; and said officers should be given opportunity to determine the issue of citizenship before the courts interfere in the exercise of the power of judicial review of administrative decisions.

 

v                  Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioners of Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts with the Bill of Rights.

 

v                  It will be noted that the power to determine the probable cause for warrants of arrest is limited by the Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal Constitution of the United States that left undetermined which public officials could determine the existence of probable cause.

 

Deportation Board v. Santos
[10 SCRA 451]

 

Ø                   Bob Stewart, an American citizen, was charged before the Deportation Board for being an undesirable alien, for engaging in electioneering.

Ø                   Stewart went to court saying that under the Election Code, only the courts have jurisdiction considering that the  Election Code requires prior conviction and that deportation is merely attached as penalty.

Ø                   Deportation Board says it also has the authority to investigate and recommend action to the President.

Ø                   Preliminary injunction was issued by the court.

 

v                  Even if the president has the power to deport, it should be based on the grounds stated in the Immigration Act.

 

v                  (I think that what the Supreme Court is trying to imply is that electioneering is not one of the grounds enumerated in the Immigration Act to deport an alien) hence, (with respect to the entitlement of Stewart to preliminary injunction ), it cannot be said that pending final determination of the issue on the authority of the Deportation Board to investigate electioneering charges and before trial on the merits,  Stewart is not entitled to prelim injunction. 

 

v                  In other words, since electioneering is not one of the grounds in the Immig Act, and since the Deportation Board can only recommend deportation if anchored on the grounds in the Immig Act,  there is doubt whether the Deportation Board has the authority to deport based on electioneering. Because of this doubt, Stewart may be entitled to the relief of prelim injunction.

 

Q: What is the remedy if there is already an order of deportation?

A: Provisional release especially if stateless.  MR, appeal to the President.  Certiorari.  In general, there are 2 remedies, administrative or judicial.

à Administrative: certiorari, injunction, quo warranto, habeas corpus

à Administrative: MR, appeal to the President under Revised Administrative Code of 1987, voluntary departure

 

Q: What is the effect of voluntary departure?

            A: Same as deported, still barred from entering the country.  It’s in the blacklist.

 

Petition for Habeas Corpus

·         Alien has been detained for a considerable amount of time & w/o fault on the part of the alien

·         No warrant of arrest & the alien is detained w/o just cause

·         Wrong identity

 

Q. Which is better, judicial or administrative remedies?

A. Try to go to court because it works on a timetable, unlike administrative remedies w/c might take forever.  Going to court is advisable only if alien is on bail, otherwise, if detained, alien may opt for deportation.

 

Q. Do you always have to exhaust administrative remedies before going to the courts?

            A. When the act is patently illegal, no need to go to court.

 

Possible Defenses

1.       Philippine citizenship

2.       No misrepresentation because of earnest efforts

3.       No jurisdiction, like election cases

4.       Prescription

5.       No ground, no violation

6.       No substantial evidence to convict alien

 

Q: What’s the rule on the power of Commissioners to issue warrants of arrest?

A: Commissioner to issue warrants of arrest only after final order of deportation, BUT from time to time, on a case to case basis, SC allows warrant even before final order of deportation.

 

Sec. 45-A. Persons duly served with subpoena or subpoena duces tecum and who fail to comply with the requirements thereof shall, after conviction, be imprisoned for not more than fifteen days or fined for not more than one hundred pesos, or both.

 

Sec. 46. Any individual who shall bring into or land in the Philippines or conceal, harbor, employ, or give comfort to any alien not duly admitted by any immigration officer or not lawfully entitled to enter or reside within the Philippines under the terms of the immigration laws, or attempts, conspires with, or aids another to commit any such act, and any alien who enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by willful, false, or misleading representation or willful concealment of a material fact, shall be guilty of an offense, and upon conviction thereof, shall be fined not less than five thousand pesos but not more than ten thousand pesos, imprisoned for not less than five years but not more than ten years, and deported if he is an alien. Dismissal by the employer before or after apprehension does not relieve the employer of the offense.

 

If the individual who brings into or lands in the Philippines or conceals, harbors, employs or gives comfort to any alien not duly admitted by any immigration officer or not lawfully entitled to enter or reside herein, or who attempts, conspires with or aids another to commit any such act, is the pilot, master, agent, owner, consignee, or any person in charge of the vessel or aircraft which brought the alien into the Philippines from any place outside thereof, the fine imposed under the first paragraph hereof shall constitute a lien against the vessel or aircraft and may be enforced in the same manner as fines are collected and enforced against vessels under the customs laws: Provided, however, That if the court shall, in its discretion, consider forfeiture be justified by the circumstances of the case, it shall order, in lieu of the fine imposed, the forfeiture of the vessel or aircraft in favor of the Government without prejudice to the imposition of the penalty of imprisonment provided in the preceding paragraph.

 

Sec. 46-A. The pilot, master, agent, owner, consignee, or any person in charge of a vessel or aircraft which carries passenger into the Philippines from abroad, is prohibited from allowing the passengers to disembark therefrom, unless all the passengers thereof have been checked up by the Commissioner of Immigration or his authorized representatives. A violation of the provisions hereof shall, upon conviction, be punishable by a fine of not more than one thousand pesos and by an imprisonment of not more than six months. If the offender is the owner of the vessel or aircraft, the fine imposed herein shall be five thousand pesos.


Q: What are Secs. 45 & 46 of CA 613?

            A: Penal provisions covering both aliens & non-aliens.

 

Section 45 (COFIS CFI) è fine, imprisonment & deportation of alien

1.       Conspire

2.       Obtain immigration documents

3.       Fraudulently represent as Filipino

4.       Issue immigration documents

5.       Subpoena

6.       Clearance certificate

7.       False statement

8.       Impersonate

 

Section 46 è to illegal alien shall be guilty of an offense

1.       Bring into

2.       Conceal

3.       Harbor

4.       Employ (dismissed before or after, does not relieve employer)

5.       Give comfort

IF… he is the pilot/ master/ agent/ owner/ consignee/ any other person…

In charge of a vessel/ aircraft, then it’s alien on the vessel/ aircraft…

Don’t allow person to disembark unless all have been checked by Immigration

 

 

Lucien Tran Van Nghia v. Rodriguez

[GR 139758, 31 January 2000]

 

Ø                   Petitioner had been previously deported and barred from entering the Philippines. However, he was able to enter the country illegally, once more, for which he was arrested by Immig agents and the WPD Police.

Ø                   Petitioner filed a petition for habeas corpus with the RTC, denied, appealed to the CA, and finally dismissed by the SC. Now, another petition with the same allegations is being filed in the SC.

 

v                  With respect to the second petition for habeas corpus, the same is already barred by res judicata.

 

v                  The writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is charged with an offense in the Philippines. Here, petitioner is charged with violation of Section 45 (d) of the Immig Act.

 

Lucien Tran Uan Nghia v. Rodriguez

·         Because he’s already deported, so he cannot re-enter

·         If he’s detained because charged w/ an offense, Sec.45 (d), then HC won’t prosper

 

Shiu Shun Man alias Loo Bon v. Galang

[GR L-16486, 30 December 1961]

 

Ø                   Loo Bon declared that he’s single and he was granted a temporary visitor status. However, when he was granted a pre-arranged employee status, he disclosed that he was already married in China. His excuse is that he thought that the marriage in China  was not valid so he represented then that he was single.

Ø                   Immig officers want him deported.

 

v                  Immig officers are correct. Sec 45 (f) of CA 613 provides that any individual who in any immigration matter shall knowingly make under oath any false statement or representations shall be guilty of an offense.

 

v                  Loo Bon should have declared his true status and let Philippine authorities determine if his marriage in China was valid.

 

Shiu Shun Man v. Galang

·         Sec.45 (f) CA 613 provides that in any immigration matter, an individual who shall knowingly make under oath any false representation is guilty of an offense

Loo Bon should have declared his true status as married & let Philippine authorities determine

 

Galang v. CA

[supra]

 

·         The administrative proceeding of deportation or exclusion is independent of the criminal action under Section 45 of the Immigration Act

o        Exclusion (Sec.29) à has not landed into the Philippines

o        Deportation (Secs. 37 & 45) à already lawfully admitted but he’s being sent home because of certain reasons

·         Bail granted in criminal case has no effect to an alien detained for exclusion Sec.45 criminal case

 

Yung Uan Chu v. Republic of the Philippines

[GR L-34973, 14 April 1988]

 

 

Ø                   Yung Uan, a Chinese, married a Filipino, and they have 6 kids. Yung petitioned for naturalization yet the trial court declared her a Filipno.

 

v                  A judicial declaration that the person is a Filipino citizen cannot be made in a petition or naturalization and that, in this jurisdiction, there can be no independent action for the judicial declaration of citizenship of an individual.

 

v                  The steps to be taken by an alien woman married to a Filipino for the cancellation of her alien certificate of registration are embodied in DOJ Opinion No. 38, series of 1958, to the effect that “The alien woman must file a petition for the cancellation of her alien certificate of registration, alleging, among other things that she is married to a  Filipino citizen and that she is not disqualified from acquiring her husband’s citizenship pursuant to Section 4 of Commonwealth Act No. 473, as amended. Upon the filing of said petition , which should be accompanied or supported by the joint affidavit of the petitioner and her husband to the effect and thus secure recognition of her status as a Filipino citizen. Judicial recourse would be available to the petitioner in a case of adverse action by the Immigration Commissioner. 

 

Yung Uan Case

·         There’s no judicial declaration of citizenship

·         The alien woman who marries a Filipino must instead file a petition for cancellation of ACR

 

REPUBLIC ACT NO. 562

ALIEN REGISTRATION ACT OF 1950

 

Sec. 1. Aliens residing in the Philippines shall, within thirty days after the approval of this Act, apply for registration, in the case of those residing in the City of Manila, at the Bureau of Immigration, and in the case of those residing in other localities, at the offices of the city or municipal treasurers, or at any other office designated by the President.

            The parent or legal guardian of an alien who is less than fourteen years of age, shall have the duty of registering such alien: Provided, That whenever any such alien attains his fourteenth birthday in the Philippines he shall, within fifteen days thereafter, apply in person for registration.

            No accredited official of a foreign government recognized by the Republic of the Philippines, or member of his official staff and family, shall be required to be registered.

 

Sec. 2. The Commissioner of Immigration, with the approval of the Department Head, is authorized to prescribe such rules and regulations as may be necessary for carrying out the provisions of this Act, including the registration of alien seamen, aliens confined in institutions in the Philippines, aliens under orders of deportation, and aliens of any other class not lawfully admitted into the Philippines for permanent residence, and from time to time, always with the approval of the Department Head, to amend such rules and regulations.  

All registration records of every alien shall be forwarded for file and record to the Bureau of Immigration.

 

Sec. 3. The Commissioner of Immigration shall prepare forms for the registration of aliens under this Act. Such forms shall contain the name, age, date and place of birth, citizenship, civil status, and if married, name of spouse, number and age of children, if any, of the alien, his residence both permanent and temporary, occupation, particulars of the date and place of entry of such alien into the Philippines, activities in which he has been and intends to engage, the length of time he expects to remain in the Philippines, his criminal record, if any, and such additional matters as may be prescribed by the Commissioner of Immigration. The forms shall also call for presentation of passport size photographs of the alien to be registered, one of which shall be attached to his registration record, to be forwarded to the Bureau of Immigration, one to be retained for the record of the official before whom registration is effected, and one to his certificate of registration as hereinafter provided.

Every person required to apply for the registration of himself or another shall submit under oath the information required for such registration. Any person authorized to register aliens is empowered to administer oaths for such purpose.

 

Sec. 4. Every alien to be registered, except those less than fourteen years of age, shall pay fifty pesos as registration fee. As evidence of such registration, a certificate shall be issued which shall contain the name, age, date and place of birth, civil status, local residence, occupation and photograph of the alien, and such other data with respect to him, as may be prescribed by the Commissioner of Immigration.  In case of loss or destruction of such certificate, a duplicate thereof shall be issued upon payment of ten pesos.

 

Sec. 5. Any alien registered shall notify the corresponding official charged with his registration in writing of any change of residence and new address, twenty-four hours before such change. In the case of an alien for whom a parent or legal guardian is required to apply for registration, the notices required by this section shall be given by such parent or legal guardian.  

 

Sec. 6. Any alien required to apply for registration who fails or refuses to make such application, and any parent or legal guardian required to apply for the registration of any alien who fails or refuses to file application for the registration of such alien shall be punished by a fine of not exceeding five thousand pesos, or imprisonment for not more than one year, or both.

Any alien, or any parent or legal guardian of any alien, who fails to give the written notice required by section five of this Act shall be punished by a fine not exceeding one thousand pesos, or imprisonment for nor more than six months, or both.

Any alien, or any parent or legal guardian of any alien, who files an application for registration containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, or who utilizes a registration certificate other than his own, shall be punished by a fine not exceeding five thousand pesos, or imprisonment for not more than one year, or both; and any alien so convicted within five years after entry into the Philippines shall be deported upon order of the President.

 

Sec. 7. Every alien subject to the provisions of this Act shall, on demand of any immigration official, or a member of the Philippine Constabulary, police, or other peace officer, exhibit his certificate of registration. In the case of an alien for whom a parent or legal guardian has applied for the registration of such alien, the exhibition of the certificate herein required shall be made by such parent or legal guardian. Every alien, or parent or legal guardian of such alien, violating this section shall be punished by a fine not exceeding two hundred pesos, or imprisonment for not more than thirty days, or both.   casia

 

Sec. 8 and 9. (Repealed)

 

Sec. 10.            Every alien subject to the provisions of this Act shall, within the first sixty days of every calendar year, report in person to the Bureau of Immigration, if residing in the City of Manila, or to the office of the respective city or municipal treasurer, if residing in another locality, or to the Chief Immigration Officer should there be an immigration office in such locality. The official in charge shall accept such annual report in the manner to be prescribed by rules and regulations.  An annual report fee of ten pesos shall be paid by the alien.  The parent or legal guardian of an alien who is less than fourteen years of age; shall have the duty of reporting for such alien: Provided, That whenever any such alien attains his fourteenth birthday in the Philippines, he shall thereafter report in person and pay the required annual report fee of ten pesos once a year within the period and at the place above designated.

Failure to make the report herein required shall subject the alien, at the option of the Commissioner of Immigration, to an administrative fine not exceeding one hundred pesos, or to prosecution for violation of this section and upon conviction to be punished by a fine not exceeding two hundred pesos or imprisonment for not more than six months or both.

 

Sec. 11.            In case of emergency, the President may assign all or any of the functions connected with the registration of aliens required under this Act to any office or officer he may designate.  

 

Sec. 12.            There is authorized to be appropriated, out of any funds in the National Treasury not otherwise appropriated, the sum of one hundred thousand pesos, or so much thereof as may be necessary, which shall be disbursed by the Commissioner of Immigration, with the approval of the President, for the payment of salaries, and wages of such temporary employees as may be necessary, and for sundry and incidental expenses to be incurred for carrying out the provisions of this Act.

 

Sec. 13.            This Act shall take effect upon its approval.

 

Alien Registration Act

·         renew registration every year

·         only aliens who are > 14 years old , stays > 60 days  must register

·         aliens are usually also issued Immigration Certificate of Registration

·         Sec.9 & Sec.13: aliens are required to register

·         Usual fee charged is PhP10,000.00

·         Express Fund: PhP500.00

·         Registration is a process where alien identifies himself & other personal circumstances & fingerprinted

·         What’s given in registration: ACR/ ICR/ Stamp on passport

 

Petition for Cancellation of Alien Certificate of Registration

·         DOJ Opinion 1958, No.39

·         Petition + joint affidavit of alien woman & Filipino husband

 

SPECIAL PROVISIONS

 

Sec. 47. Notwithstanding the provisions of this Act, the President is authorized:

(a) When the public interest so warrants:

 

(l) To waive the documentary requirements for any class of nonimmigrants, under such conditions as he may impose;

 

(2) To admit, as nonimmigrants, aliens not otherwise provided for by this Act, who are coming for temporary period only, under such conditions as he may prescribe;

 

(3) To waive the passport requirements for immigrants, under such conditions as he may prescribe;

 

(4) To reduce or to abolish the passport visa fees in the case of any class of nonimmigrants who are nationals of countries which grant similar concessions to Philippine citizens of a similar class visiting such countries;

 

(5) To suspend the entry of aliens into the Philippines from any country in which cholera or other infectious or contagious disease is prevalent;

 

(b) For humanitarian reasons, and when not opposed to the public interest, to admit aliens who are refugees for religious, political, or racial reasons, in such classes of cases and under such conditions as he may prescribe.

 

·         Special Powers of the President

·         Significance: gives President ultimate power to accept or reject alien, not the Commissioner on Immigration

o        When public interest demands

o        On humanitarian grounds

§         Refugees

§         DOJ processes, not BI

§         Before Sec.9(g), missionaries belonged to this class

§         Visa given here can be extended for a long time

·         E.g., 1998 Amnesty for overstaying or undocumented aliens

 

GENERAL DEFINITIONS

 

Sec. 50. As used in this Act:

 

(a) The term "Philippines" means all the territory and waters subject to the jurisdiction of the Government of the Philippines.

 

(b) The term "alien" means any person not a citizen of the Philippines.

 

(c) Except for the period covered by Section 55, the term "consular officer" means any official acting for the Government of the Philippines, designated by the President for the purpose of issuing visas to aliens as required of aliens by this Act.

 

(d) The term "unmarried" when used in reference to an individual as of any time, means an individual who at such time is not married, whether or not previously married.

 

(e) The terms "child," "father," and "mother," do not include a child or parent by adoption unless the adoption took place before May 1, 1939.

 

( f ) The terms "wife" and "husband" do not include a wife or husband by reason of a proxy or picture marriage taking place after the effective date of this Act.

 

(g) The word "person" shall be construed to import both the plural and the singular, as the case may be, and shall include partnerships, corporations, companies, and associations. When construing and enforcing the provisions of this Act, the act, omission, or failure of any director, officer, agent, or employee of any partnership, corporation, company, or association acting within the scope of his employment or office shall, in every case, be deemed the act, omission, or failure of such partnership, corporation, company, or association .

 

(h) The term "vessel" shall include civil aircraft as well as water craft.

 

(i) The term "seaman" means a person serving in any capacity on board a vessel or civil aircraft.

 

(j) The term "immigrant" means any alien departing from any place outside the Philippines destined for the Philippines, other than a nonimmigrant.

 

(k) The term "immigration laws" shall mean this Act and any other law hereafter enacted relating to the entry of aliens into the Philippines, and their exclusion, deportation, and repatriation therefrom.

 

(l) The words "the President" refer to the President of the Philippines.

 

Revalidation of Visas

Memorandum Order No. ADD-01-026

 

This memorandum orer shall govern the revalidationof visas.  Accordingly, Office Memorandum Order No. RBR-98-0-16 dated September 8, 1999 is hereby amended.

 

I. A visa application for a change of status from one nonimmigrant category to another that was approved by the Board of Commissioners (BOC) but was not implemented because the applicant left the Philippines may be revalidated, provided, the following conditions concur:

1.      The applicant returns to the Philippines within three months with a valid entry visa;

2.      the appliant files a written request to the Executive Director for the revalidation of his or her visa within 15 days from his or her return to the Philippines;

3.      The BOC-approved visa has not expired, upon his or her return to the Philippines; and

4.      The applicant is not among the class of excluded aliens under CA 613, Sec. 29, as amended.

 

II. A visa application for the extension of a nonimmigrant or immigrant visa that was approved by the BOC but was not implemented because the applicant left the Philippines may be revalidated, provided:

 

1.       In case the applicant secured a grace period before departure:

a.     The applicant returns to the Philippines during the validity of his or her grace period;

b.     The applicant files a written request to the Executive Director for the revalidation of his or her visa within 15 days from his or her return to the Philippines;

c.     The BOC-approved visa has not expired, upon his or her return to the Philippines; and

d.     The applicant is not among the class of excluded aliens under CA 613, under Sec. 29 as amended.

 

2.       In case the appliant did not secure a grace period before departure:

a.     The applicant returns to the Philippines within three months with a valid entry visa;

b.     The applicant files a written request to the Executive Director for a grace period of one month within 15 days from his or her return to the Philippines;

c.     The BOC-approved visa has not expired, upon his or her return to the Philippines; and

d.     The applicant is not among the class of excluded aliens under CA 613, under Sec. 29 as amended.

 

III. However, revalidation shall not be disallowed in cases where:

 

1.       The applicant has not returned to the Philippines within 90 days or three months from the date of his last departure;

 

2.       The Commissioner of Immigration determines that:

a.     Revalidation shall result in the circumvention of immigration laws, rules and regulations; or

b.     The applicant poses or will pose a threat or menace to national security, public safety or public health.

 

The Executive Director shall ensure compliance with this Memorandum Order.  He shall post certified true copies of this… (yada, yada)

 

Revalidation – when an approved visa application was not implemented – no stamp on passport because alien left the country.

 

Recognition as a Filipino Citizen

BI Law Instruction No. RBR-99-002

 

Any child born of a Filipino parent may be recognized as a Filipino under existing laws, only after submission to the Commissioner of the original or certified true copy of the following requirements:

 

1.       Petition by way of a letter-request made under oath by the Filipino parent or legally appointed guardian; if the child is of age, i.e. 18 years old, he/she must apply on his/her own capacity.

In default or parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated:

a.     the surviving grandparent, as provided in Art. 214

b.     the oldest brother or sister, over 21 years of age, unless unfit or disqualified; and

c.     the child’s actual custodian, over 21 years of age, unless unfit or disqualified.

When the appointment of a judicial guardian over the property of the child becomes necessary,t he same order of preference shall be observed.

2.       Authenticated Birth Certified of the child;

3.       Birth Certificate of the Filipino parent;

4.       Affidavit of Citizenship executed by the applicant’s Filipino parent attesting to his or her citizenship at the time of the birth of the child;

5.       Photocopy of the child’s passport, if he/she has one;

6.       Photocopy of the Filipino parent’s passport, if he/she has one;

7.       Proof of Filipino citizenship of a parent at the time of the birth of the child other than the parent’s passport in No. 6 or the child’s passport in No. 5 hereof.

 

In case the letter request is made by a person on behalf of any of the persons enumerated in No. 1 hereof, the parent or legally appointed guardian, he or she must be duly authorized by way of a power of attorney to file such petition.

            All documents issued by foreign governments and those executived in a foreign country shall be duly authenticated by the authorized Officer of the Philippine Consulate of the Embassy which has jurisdiction over them.

            Any communication/statement/document in a language other than English or Filipino shall be officially translated under seal of the authorized officer of the appropriate foreign embassy otherwise it shall be inadmissible.

X X X

            [A]ny Identification Certificate issued by the Bureau peursuant to an Order of Recognition shall prominently indicate thereon the date of confirmation by the Secretary of Justice.

 

 

Order of Recognition:

à This is where alien with dual citizenship applies to recognize RP citizenship

à So a peson can use foreign passport to travel and can stay in RP without a visa

à when he leaves, just apply for clearance using foreign passport