CO PEK, LIM WUN CHEE @ LIM UN CHU, ET AL., PETITIONERS-APPELLEES, VS. HON. MARTINIANO VIVO, IN HIS CAPACITY AS ACTING COMMISSIONER OF IMMIGRATION, RESPONDENT-APPELLANT.

On November 28, 1960, Lim Wun Chee and her minor children Chong Yum Ting
alias Co Yum Ting, Co Ngor alias Chong Nor Ngor, Co Yum Fai alias Hong
Yum Fax, Co Woon alias Chong Lai Woon, and Co Lai Lam alias
Chong Lai Lam, aged 13, 7, 6, 4 and 3, respectively, applied with the Philippine
Consulate General in Hongkong for non-immigrant passport visa to the
Philippines, allegedly to visit their husband/father, Co Pek alias
Chong Wing Fai, who has permanent residence at No. 1110 Sta. Elena, Manila,
Philippines. In connection with this application for visa, Lim Wun Chee executed
an affidavit stating that while in the Philippines, she and her aforenamed
children will never apply for any change of status as temporary visitors and
they shall stay in the Philippines for only 3 months, unless otherwise extended
by proper authorities. (Exh. 2, respondents). Temporary visitor’s visa (Cabinet
Policy) No. 210 was issued to them after Co Pek had filed with the Commissioner
of Immigration (in Manila) a cash bond of P30,000.00, on behalf of his wife and
children. The latter arrived in the Philippines on December 16, 1960.

On February 8, 1961, Co Pek’s application for naturalization was granted by
the Court of First Instance of Manila (Sp. Proc. No. 4257.)^[1] On April 13, 1961, the stay of Lim Wun
Chee and her children in the Philippines was extended until February 8, 1963, on
the strength of the so-called Cabinet Policy of February 29, 1956, authorizing
the Secretaries of Foreign Affairs and of Justice to pass upon applications for
extensions.

On January 15, 1962, however, the then Secretary of Foreign Affairs,
concurred in by the Secretary of Justice, nullified and declared without effect
the extensions of the stay of non-immigrants under the aforesaid Cabinet policy
of February 29, 1956. As, in view thereof, the Commissioner of Immigration
required Lim Wun Chee and her 5 children to leave the country on or before
September 9, 1962, Co Pek, Lim Wan Chee and their children petitioned the Court
of First Instance of Manila (in Civil Case No. 51499) to enjoin the respondent
Commissioner of Immigration from arresting and deporting petitioners Lim Wan
Chee and her children, and from confiscating the cash bond of P30,000.00 filed
in their behalf by petitioner Co Pek. A writ of preliminary injunction, as
prayed for by petitioners, was issued by the court on September 14, 1962 to
restrain their arrest and deportation during the pendency of the case. In the
meantime, petitioner Co Pek was able to take the oath of allegiance as a
Filipino citizen on April 30, 1962.^[2]

On July 11, 1963, the court (Judge Francisco Arca, presiding) rendered a
decision in the prohibition-case, granting the petition and declaring
petitioned, wife and minor children of Co Pek, also citizens of the Philippines
by reason of the latter’s naturalization. The Commissioner of Immigration,
therefore, was ordered to cancel the alien registry and immigration papers of
Lim Wun Chee and her children, and to refund to them the cash bond of
P30,000.00. The Solicitor General, on behalf of the Commissioner of Immigration,
appealed.

The legal provision pertinent to and applicable in the present appeal is
Section 15 of the Revised Naturalization law, which provides:

“SEC. 15. Effect of the naturalization of wife and children.—Any
woman who is now or may hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall be deemed a citizen of the
Philippines.

“Minor children of persons naturalized under this law who have been born in
the Philippines shall be considered citizens thereof.

“A foreign-born minor child, if dwelling in the Philippines at the time of
the naturalization of the parent, shall automatically become a Philippine
citizen, and a foreign-born minor child, who is not in the Philippines at the
time the parent is naturalized, shall be deemed a Philippine citizen only during
his minority, unless he begins to reside permanently in the Philippines when
still a minor, in which case, he will continue to be a Philippine citizen even
after becoming of age.

x x x x.”

Under this provision, for the wife of a naturalized
Filipino to be considered to have followed the citizenship of her husband, it
must be shown that she herself is capable of being naturalized. The phrase “who
might herself be lawfully naturalized”, used in the law, has been construed to
mean that the said wife is not disqualified to become a Filipino citizen,
and that she possesses all the qualifications for acquisition of
Philippine citizenship^[3]. Although it
may be true that petitioner Lim Wun Chee is not disqualified to become a
Filipino citizen, there is no proof that she also possesses all the
qualifications for citizenship in this country. The naturalization of her
husband did therefore, ipso facto make her a citizen of the Philippines.

There is a more important point that we would like to bring about in this
opinion. In tne affidavit executed by petitioner Lim Wun Chee before the
Philippine Consul in Hongkong on December 6, 1960, which document was one of the
bases for the issuance of the non-immigrant visa that enabled her and her 5
children to come to the Philippines, she declared under oath that they were
applying for the visa “to visit” their husband/father Co Pek, a permanent
resident of this country, and that “while in the Philippines, we (the affiant
and her children) shall never apply for any change of status as temporary
visitors; and that we shall stay in the Philippines for three (3) months, unless
otherwise extended by the proper authaities.” However, after they had succeeded
in gaining entry into the country on the foregoing allegations, these
immigrants, as petitioners in this prohibition case admitted:

“10. That to comply with the naturalization law in order that Co Pek could
take his oath as a naturalized Filipino citizen, it is required that his
minor children Co Yum Ting, Co Ngor, Co Yum Fai, Co Woon, and Co Lai Lam
continue their studies in a school duly recognized by the Government where
Philippine history, government and civics are taught as part of the schools
curriculum, x x x.” (Petition; italics supplied.)

By their own admission in this case, therefore, it has been established that
the coming to the Philippines of petitioner’s wife and children was intended to
insure the granting of petitioner Co Pek’s application for natural- ization and
his admission to Philippine citizenship.^[4]
The conduct of all of the herein petitioners-appellees could be nothing less
than a fraud or misrepresentation perpetrated on our government. In a similar
case,^[5] this method was censured by this
Court, thus:

“x x x if the purpose of these appellants had been from the beginning to take
residence until the husband Ong Tai should have become naturalized, on the
theory that the Cabinet resolution of February 29, 1956 authorized them to do
so, then they should have so stated in their application for entry, instead of
solemnly representing that they would be only temporary visitors. Under the
circumstances, their application for a temporary visitor’s visa appears to be a
fraud, perpetrated on the Immigration authorities of the Republic that denies
the holders thereof any right to favorable treatment.”

In another case,^[6] we said:

“x x x It is clear that if an alien 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 a temporary visa, the law
will not allow him subsequently to go back on his representation and stay
permanently, without first departing from the Philippines as he had promised. x
x x. Any other ruling would as stated in our previous decision, encourage aliens
to enter the Islands on false pretenses; every alien, so permitted to enter for
a limited time, might then claim a right to permanent admission, however flimsy
such claim should be, and thereby compel our government to spend time, money and
effort in examining and verifying fchether or not every such alien really has a
right to take up permanent residence here. In the meanwhile, the alien would be
able to prolong his stay and evade his return to the port whence he came,
contrary to what he promised to do when he entered. The dangers inherent in such
a ruling are self-evident.”

Referring again to Section 15 of the Revised Naturalization law quoted above,
it is noteworthy that a foreign-born minor child automatically becomes a
Philippine citizen, if said child is “dwelling in the Philippines at the
time of the naturalization of the parent.” It must be remembered that this
provision confers on a person a primary right, a status, the Philippine
citizenship. The term “dwelling” used in the law could not, therefore, be
referring to mere physical presence in this country. That the law must have
intended none other than domicile can also be inferred from the
requirement of permanent residence before foreign-born minors, who are not in
the Philippines at the time of the naturalization of their parents, can acquire
the unqualified status of a Filipino citizen.

It may here be stated that on September 13, 1966, and long after the issues
in this case have been deliberated upon and considered by this Court,
petitioners-appelles filed a manifestation and motion praying for the dismissal
of this appeal on the ground!that it has already become academic. It was therein
stated that petitioner Lim Wun Chee had voluntarily left the Philippines and
thereafter entered the country as a quota immigrant under Section 13(a) of
Commonwealth Act 613, as amended by Republic Act 503, and that the cash bond
filed with the Commission of Immigration was already refunded to them. Be that
as it may, in view of the facts obtaining in this case and to serve the ends of
justice and State-welfare, we find it necessary to pass upon the merits of this
appeal. It may be pointed out that even the minor children should have been
asked to depart first and allowed to re-enter as non-quota immigrants.

WHEREFORE, and for all the foregoing considerations, the decision of
the lower court appealed from is hereby re- versed and set aside. The attention
of the Solicitor General is hereby called to the facts uncovered by this case,
for appropriate action. No costs.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala,
Bengzon, J.P., Zaldivar and Ruiz Castro, JJ.,
concur.
Makalintal, J., concurs in the result.

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^[1] It appears from the decision in the
naturalization case that for having allegedly resided in the Philippines
continuously for more than 30 years, and having enrolled his children of
school age in government-recognized schools, Co Pek was exempted from filing a
declaration of intention. This petition for citizenship was filed on
February 16, 1960. His wife and minor children arrived in the Philippines only
on December 16, 1960. And yet, the representative of the Solicitor
General submitted the case for the government without introducing any
evidence except Exhibit “1”, which is the applicant’s own handwriting in
English with the corresponding Tagalog translation. (pp. 8-13,
Record.)

^[2] During the hearing of
Co Pek’s petition to take the oath, the representative of the Solicitor General,
when asked by the court, manifested that he was submitting the case for
resolution without memorandum or opposition. Considering only the
evidence presented by applicant, the court found the petition to be
well-taken,and authorized the oath-taking of Co Pek. This hearing was held on
March 29, 1963. The petition in this prohibition case where
certain admissions were made, was filed on September 5,
1962.

^[3] Lo San Tuang v.
Galang, L-18775, Nov. 30, 1963; Hua Suy v. Commissioner, L-13790, Oct. 31, 1963,
Sun Peck Young v. Commissioner, L-20784, Dec. 27, 1963; Tong Siok Sy vs. Vivo,
L-21136, Dec. 27, 1963; Lao Chay v. Galang, L-19977, Oct. 30, 1964.

^[4] Strangely, although the records of arrival
of the wife and children of petitioner Co Pek must have been available in the
immigration office, the representative of the Solicitor General failed to
present them, when Co Pek filed the petition in the naturalization case,
pursuant to Section 6 of the Naturalization law, as amended by Republic Act
535.

^[5] Lo Choy Fa, et al. v.
Commissioner, G.R. No. L-20597, Nov. 29, 1963.

^[6] Chiong Tiao Bing v. Commissioner, 52 O.G.
6551.