TAN SENG PAO, PETITIONER AND APPELLEE, VS. COMMISSIONER OF IMMIGRATION, ET AL., RESPONDENTS AND APPELLANTS.

On July 30, 1958, petitioner Tan Seng Pao filed with the Court of
First Instance of Manila, a petition for a writ of habeas corpus
alleging, inter alia, that on October 12, 1949, respondent
Commissioner of Immigration issued a warrant for his arrest as a result
of which he was apprehended and taken into custody by respondent and or
his agents and deputies; that thereafter; deportation proceedings were
instituted against him and on February 1, 1950, a decision was rendered
by the Board of Immigration Commissioners convicting him and holding
him liable to deportation; that no steps were thereafter taken by
respondent to effectuate said decision, or if steps were taken, the
same were ineffectual or inadequate, as he was still being detained by
respondent at the Immigration Detention Station; that on May 8, 1958,
petitioner, through counsel, filed a motion for reconsideration of said
decision, in order to give respondent an opportunity to correct and/or
grant administrative relief, in connection with petitioner’s “illegal
continued detention”; that although 2 months had elapsed from the
filing of petitioner’s motion for reconsideration, no definite step was
taken by respondent to resolve the same, and there is no prospect of
any action thereon in the immediate future; that on July 1, 1958,
petitioner’s counsel called respondent’s attention to the pendency of
said motion for reconsideration and urged for an early investigation,
but respondent took no action thereon; and that the non-execution of
the order of deportation and respondent’s inaction on his said motion
for reconsideration for an unreasonable length of time, had rendered
petitioner’s continued detention without authority of law and in gross
violation of the Constitution and the Universal Declaration of Human
Eights, because said non-execution of the order of deportation has
rendered the same functus oficio.

On August 1, 1958, respondent Commissioner of Immigration filed his return to the writ stating, inter alia,
that petitioner’s motion for reconsideration of the decision of the
Board of Immigration Commissioners dated February 1, 1950, was still
pending, although one of the members of said board had already given
his vote on said motion; that petitioner failed to file with him a
petition for release on bail pending execution of the order of
deportation and has not, therefore, exhausted all administrative
remedies and, consequently, his petition is premature, thereby giving
the court no jurisdiction nor justification to entertain the same; and
that if there was any delay in the deportation of petitioner, it was
not due to the fault of the Government or any of its officials,
inasmuch as diplomatic negotiations have ceaselessly been undertaken to
effect petitioner’s immediate deportation to his country of origin.

After submission by the parties of their respective memoranda, the
petition was submitted for decision. On August 8, 1958, the court
rendered a decision granting the petition, subject to the conditions
stated in the dispositive part thereof, which reads:

“WHEREFORE, the Court hereby orders the release from
custody of the herein petitioner under the terms and conditions as made
by the Supreme Court in an almost similar case (Victor Borovsky vs.
Commissioner of Immigration and Director of Prisons, supra), which are
as follows: ‘The petitioner shall be placed under the surveillance of
the immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be available
when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to.
this Court or to the Court of First Instance of Manila for decision in
case of abuse. He shall also put up a bond for the above purpose in the
amount of P5,000.00 with sufficient surety or sureties, which bond the
Commissioner of Immigration is authorized to exact by Section 40 of
Commonwealth Act No. 613.’ “

From the aforementioned decision, respondent appealed to us.

Respondent Commissioner of Immigration claims that the lower court
should not have entertained petitioner’s petition for habeas corpus
inasmuch as the latter’s motion for reconsideration of the decision of
the Board of Immigration Commissioners, filed on May 8, 1958, was still
pending with said board.

There is some merit in this contention. In submitting said motion
for reconsideration, petitioner has invoked the authority of the
aforementioned board to reconsider its decision. His filing, hardly two
months thereafter, with the lower court of a petition for a writ of
habeas corpus was improper and premature, because said board has yet to
act on his said motion for reconsideration. In the case of Johnson vs. Commissioner of Immigration (101 Phil., 654; 56 Off. Gaz. [44] 6767), we held:

“Without need of going into all the questions raised, we think the petition for habeas corpus
must be denied as premature, the same having been filed before the
Board of Commissioners of the Bureau of Immigration, the agency
primarily entrusted with the final determination of petitioner’s right
to stay permanently in the Philippines, has rendered its decision.

‘In
the absence of exceptional circumstances, habeas corpus proceeding to
prevent deportation is premature if proceedings are still pending
before the Commissioner of Immigration,’ (U. S. ex rel. Loucas vs. Commissioner of Immigration, D.C.N.Y., 49 P 2d 473 cited in 89 C.J.S. p. 528.)

“No
exceptional circumstances have been shown to take this ease out of the
general rule. It is not even claimed, and indeed it does not appear,
that the Board has been unduly delaying its decision. There is,
therefore, in our opinion no justification for judicial interference.”

In the instant case, although a decision has already been rendered
by the Board of Immigration Commissioners ordering the deportation of
petitioner, the deportation proceedings may be considered still pending
because petitioner himself, by filing said motion for reconsideration,
has sought to have its decision reversed. It may be stated, in this
connection, that petitioner’s motion for reconsideration has, at the
time of the filing of the petition for habeas corpus with the lower
court, been partly acted upon by the immigration authorities, as it
appears that one of the members of the Board of Immigration
Commissioners had already given his vote thereon. It cannot, therefore,
be claimed that said board had been unduly delaying its decision, to
warrant judicial interference.

Furthermore, petitioner failed to file with respondent a petition
for release on bail while awaiting deportation, a practice which is
usually done by deportees and, therefore, has not exhausted
administrative remedies before filing the petition for habeas corpus
with the lower court. That respondent might require excessive bail
which petitioner would then not be able to furnish is not, in our
opinion, a legal excuse for his failure to file said petition with
respondent.

Respondent finally contends that the lower court erred in granting
petitioner the writ of habeas corpus, on the main ground that he had
been under detention by the immigration authorities for 8 years since
he was ordered deported, without said order having been carried out.
The lower court considered said long continued detention of petitioner
as unreasonable, citing the cases of Mejoff vs. Director of Prisons (90 Phil., 70); Borovsky vs. Commissioner of Immigration, et al. (90 Phil., 107; 47 Off. Gaz., 136); Chirskoff vs. Commissioner of Immigration, et al. (90 Phil., 256); and Andreau vs.
Commissioner of Immigration, et al. (90 Phil., 347), wherein this Court
granted the writ of habeas corpus to petitioners in said cases, as they
had been under detention by the immigration authorities from 2 to 4
years, while awaiting deportation.

It is to be noted, however, that this Court was constrained to grant
the release of petitioners in said eases, because “there was no ship or
country which would take them.” Petitioners therein were stateless
Russians who have no country to which they may be deported or which
would be willing to accept them. In the instant case, petitioner is a
Chinese citizen and not a stateless alien, and has a known country,
Formosa (from whence he came), to which he may be removed. If there is
any delay in the shipment of petitioners from this country, it is not
due to the fault or negligence of the Government or of its officers. If
diplomatic negotiations which have been pursued relentlessly by our
Government have not yielded tangible results leading to the immediate
or early removal of petitioner and other aliens similarly Situated, the
delay should not be considered a ground for declaring the order of
deportation functus oficio. Otherwise, it would be within the
power of the countries of undesirable aliens ordered deported from this
country to render ineffective or unenforceable warrants of deportation,
by simply frustrating all diplomatic efforts aimed at their removal
from this country.

In conclusion, we hold and declare that, as long as the continued
detention of a deportee is not attributable to the fault or negligence
of the Government or of its officers, and his deportation is not
rendered impossible by his citizenship status by reason of which no
country or ship will accept him, warrant for his deportation should
stand in all its force and vigor, rather than be declared functus oficio.

Wherefore, the judgment of the court a quo, as well as
the order granting petitioner’s release on bail pending this appeal,
are reversed and set aside, without pronouncement as to costs. It is so
ordered.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, and Gutierrez David, JJ., concur.
Reyes, J.B.L., J., on leave, took no part.