·
Entry, Admission, Exclusion, Registration, Monitoring,
Repatriation & Deportation of foreigners within the national territory of
the Philippines
·
Not part of international law
·
Incidents of sovereignty
·
not a crime, not a felony
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
[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?
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
·
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
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
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)
[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.
·
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
working permit to aliens from
countries w/ w/c Phils has treaties
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
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
·
signed by applicant
·
notarized –> to make it a public document
à falsity
will lead to criminal charge
(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
·
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
·
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.
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
·
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.
·
One of the grounds cited by petitioner alien is
constitutional right to bail.
SC implicitly agrees with it.
·
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.
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.
·
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.
·
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.
·
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.”
[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.
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.
·
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.
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.
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
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.
·
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.
·
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
[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.
·
There’s no judicial declaration of citizenship
·
The alien woman who marries a Filipino must instead file a
petition for cancellation of ACR
Sec. 8 and 9.
(Repealed)
·
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
·
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.
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
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