LAM SHEE, PETITIONER AND APPELLANT, VS. HONORABLE JOSE P. BENGZON, ACTING COMMISSIONER OF IMMIGRATION, RESPONDENT AND APPELLEE.

This
is a petition for a writ of habeas corpus filed by Lam Shee in the
Court of First Instance of Manila against respondent in which, among
other things, she prays that the latter be ordered to produce the
person of her minor son Mah Shu Fong and that, after the necessary
hearing, he be set at liberty and be returned to the custody of
petitioner.

Respondent answered the petition stating in
substance that said minor is subject to deportation it appearing that
“he was not lawfully admissible at the time of entry” pursuant to
section 37—a, paragraph 2, of the Philippine Immigration Act
(Commonwealth Act No. 613). After due hearing, the court rendered
decision denying the petition, with costs against petitioner. From this
decision petitioner has appealed.

In 1936, petitioner came
to the Philippines as the wife of a resident Chinese merchant and was
issued landing certificate of residence No. 122881, dated June 25,
1936. When she came she brought along her second child, having left
behind in China her oldest son, minor Mah Shu Fong, and since then up
to the death of her husband in 1944 three more children were born to
them who are now living with her. On September 24, 1947, her oldest
son, Mah Shu Fong, then 17 years of age, arrived in the Philippines
bringing with him the requisite travel papers bearing a visa of
the Philippine Vice-Consul at Hongkong. After an investigation
conducted by the Board of Special Inquiry of the Bureau of Immigration,
said minor was allowed to land as a preference quota immigrant in a
decision rendered by said board and was issued immigrant certificate of
residence No. 26143.

On July 14, 1949, a warrant was issued
for his arrest on the ground that when he entered the Philippines on
September 24, 1947, his mother, petitioner herein, was not lawfully
admitted into the Philippines for permanent residence. Upon being
arrested, the Board of Commissioners of Immigration caused an
investigation to be made of the charge during which said minor was
represented by counsel, and upon the evidence submitted in said
investigation the board found that the charge was well founded and
rendered a decision decreeing his deportation. And acting upon the
recommendation of the board, respondent herein, then Acting
Commissioner of Immigration, issued a warrant for his deportation. This
gave rise to the present petition for a writ of habeas corpus.

The evidence shows that the herein minor Mah Shu Fong is a Chinese
citizen who was admitted into this country on October 14, 1947 by
virtue of a preference quota visa issued to him by the Philippine Vice-Consul at Hongkong; that said preference quota visa
was issued to him upon the claim that he is the minor child of Lam
Shee, petitioner herein, who was in turn admitted into this country for
permanent residence on the strength of the representation made by her
before the immigration officials that she was the wife of a resident
merchant named Ham E; that it turned out that Lam Shee was not the real
wife of Ham E, but of another Chinese by the name of Mah Sek; and on
the strength of such misrepresentation which disqualifies Lam Shee to
land as the lawful wife of a Chinese resident merchant, the court
concluded that her minor son, Mah Shu Fong, “was not lawfully
admissible at the time of entry” under section 37-a, paragraph 2, of the Philippine Immigration Act of 1940.

We agree with the lower court that the law applicable to the case at bar is section 37—a,
paragraph 2, of the Philippine Immigration Act of 1940, because there
is no question under the facts then proven before the immigration
officials that said minor was not lawfully admissible to the
Philippines when he came on September 24, 1947 because of the admission
made by her mother Lam Shee that she gained entrance through
misrepresentation. The phrase “not lawfully admissible” used in said
section 37—a, paragraph 2, is broad enough to cover all cases of illegal entry, not necessarily those referred to in section 29—a
of the same Act. If this were the intention of the law, paragraph 2
above adverted to would have contained an express reference to said
section 29—a. If such reference has not been made the clear
intention must have been to include in said phrase not only all those
cases belonging to the “excluded classes” mentioned therein. However,
granting arguendo that the claim of counsel for petitioner is correct, still we believe that the case at bar comes under section 29—a,
paragraph 17, which refers to persons not properly documented under the
Act because it cannot be disputed that the credential of the minor when
he came to this country was tainted with some irregularity.

There is however an important circumstance which places this case
beyond the reach of the resultant consequence of the fraudulent act
committed by the mother of the minor when she admitted that she gained
entrance into the Philippines by making use of the name of a Chinese
resident merchant other than that of her lawful husband, and that is,
that the mother can no longer be the subject of deportation proceedings
for the simple reason that more than 5 years had elapsed from the date
of her admission. Note that the above irregularity was divulged by the
mother herself, who in a gesture of sincerity, made an spontaneous
admission before the immigration officials in the investigation
conducted in connection with the landing of the minor on September 24,
1947, and not through any effort on the part of the immigration
authorities. And considering this frank admission, plus the fact that
the mother was found to be married to another Chinese resident
merchant, now deceased, who owned a restaurant in the Philippines
valued at P15,000 and which gives a net profit of P500 a month, the
immigration officials then must have considered the irregularity not
serious enough when, in spite of that finding, they decided to land
said minor “as a properly documented preference quota immigrant”
(Exhibit D). We cannot therefore but wonder why two years later the
immigration officials would reverse their attitude and would take steps
to institute deportation proceedings against the minor.

Under the circumstances obtaining in this case, we believe that much as
the attitude of the mother should be condemned for having made use of
an improper means to gain entrance into the Philippines and acquire
permanent residence there, it is now too late, not to say unchristian,
to deport the minor after having allowed the mother to remain even
illegally to the extent of validating her residence by inaction, thus
allowing the period of prescription to set in and to elapse in her
favor. To permit his deportation at this late hour would be to condemn
him to live separately from his mother through no fault of his thereby
leaving him to a life of insecurity resulting from lack of support and
protection of his family. This inaction or oversight on the part of the
immigration officials has created an anomalous situation which, for
reasons of equity, should be resolved in favor of the minor herein
involved.

Wherefore, the decision appealed from is reversed. Petition is granted, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.