HON. MARTINIANO P. VIVO, AS (ACTING) COMMISSIONER OF IMMIGRATION, PETITIONER, VS. HON. RICARDO C. PUNO, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH XXIV, LIM CHUY …

In this proceeding for certiorari and prohibition, petitioner,
the then Acting Commissioner of Immigration, Martiniano P. Vivo, would
challenge on jurisdictional grounds the validity of an order of respondent
Judge, the Hon. Ricardo C. Puno, in a pending prohibition case before his sala,^[1]
denying a motion of petitioner to dissolve a writ of preliminary injunction and
to dismiss the petition observing “that the issues involved in this
incident at bar refer to matters of law and of fact relating to the issues in
the main cause which should be resolved after trial on the merits.”^[2]
It is petitioner’s contention that respondent Judge was without jurisdiction to
entertain the afore­said prohibition case before him, instituted by private
respondents in this petition to prevent the deportation of the three of them,
the wife and two minor children^[3]
of the fourth party litigant, the husband and father.^[4]

The petition alleged that on February 27, 1960 the wife and the
two minor children arrived and were admitted to the Philip­pines being
authorized to stay initially for only one month after arrival as non-immigrant
temporary visitors, which period of temporary stay was extended, after repeated
requests, to October 28, 1960.^[5]
It was likewise admitted in the petition that the husband and father of the
other three respondents, Lim Chuy Tian, did apply for naturalization on
December 2, 1960, a decision in his favor being granted on October 31, 1961 and
after the expi­ration of the two year period having been allowed to take his
oath of allegiance.^[6]

It was on the basis of such Filipino citizenship granted
respondent Lim Chuy Tian that he, his wife and two minor children filed Civil
Case No. 58597 before respondent Judge maintaining that by virtue of his
naturalization both his wife and minor children, had become citizens and could
not be required to leave the country anymore. 
The prayer in such proceeding before respondent Judge was for petitioner
before us, as acting Commissioner of Immigration, being enjoined and restrained
from ordering the arrest and deportation of such wife and minor children.  As already noted, petitioner Acting
Commissioner of Immigration, as respondent in that lower court proceeding,
sought the dismissal of the petition on the ground of lack of juris­diction and
the dissolution of the writ of preliminary injunction theretofore issued.

Respondent Judge, in the aforesaid challenged order, denied such
plea to dissolve the writ of preliminary injunction and to dismiss the
petition.  The matter was elevated to us
in this suit for certiorari and prohibition with preliminary injunction filed
on October 25, 1965.  We gave due course
to the petition on October 27, 1965 issuing at the same time a preliminary
injunction.  In the answer of private
respondents, while there was no denial of the allegation that the last
extension granted would allow the stay of the wife and minor children as non-immigrant
temporary visitors only up to October 28, 1960, stress was laid on the
naturalization of the father resulting, according to them, in the benefits of
the Revised Naturalization Act being extended to the wife and minor children
who, therefore, should be deemed Filipino citizens entitled to remain in this
country permanently.

The decisive question, therefore, is whether such alleged
naturalization of respondent Lim Chuy Tian resulted in his wife and two minor
children, the other private respondents, becoming Filipinos? A negative response
is called for in the light of the controlling precedents.  The naturalization of the husband did not
automatically confer citizenship on the wife. 
Nor could the two minor children be considered naturalized as they were
not within legal contemplation “dwelling in the Philippines at the time of
the naturalization of the parent.”^[7]
This petition is meritorious.

The wife, respondent Tan Soat Kiat, cannot be considered a
Filipino citizen in the light of our constant ruling from Ly Giok Ha v. Galang^[8]
that marriage to a Filipino does not result in a foreign wife becoming a
Filipino citizen unless she herself may be naturalized.  That would require that she should have all
the qualifications and none of the disqualifications under the law.  Kua Suy v. Commissioner of Immigration^[9]
is squarely in point.

Neither are the two minor children entitled to the benefits of
the pertinent provision of the Naturalization Act.  As was held in the same Kua Suy decision:
“As to the minor children, it is to be observed that the same section
(paragraph 3) of the naturalization law extends citizenship to a foreign-born
minor child ‘if dwelling in the Philippines at the time of the naturalization
of the parent’, and, of course, ‘dwelling’ must necessarily be construed to
mean ‘lawful residence’.  Since prior to
the time the father of these appellees took his oath of allegiance (on 24
August 1959) the lawful period of stay of those children had already expired in
1957, and they had been already required to leave the Islands, plainly they
were no longer lawfully residing therein and have no right to be considered as
also naturalized.  The Naturalization Act
was certainly not intended to be an excuse for violations of our immigration
laws.”^[10]

There was a reaffirmation of the above principle in Vivo v.
Cloribel.^[11]
Thus: “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. 
Since prior to the time the father of respondents visitors was supposed
to have taken his oath of citizenship (June 24, 1963), their lawful period of
stay had already expired and they had been required to leave, they were no
longer lawfully residing here.” As a matter of fact, in another decision
of the same year, Co Pek v. Vivo,^[12] “dwelling” was identified
with the concept of domicile.  Thus:
“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.”

WHEREFORE, this petition for certiorari and prohibition is
granted, declaring null and void and setting aside the questioned order of respondent
Judge, the Hon. Ricardo C. Puno, and permanently restraining him or his
successor from taking cogni­zance of and assuming jurisdiction over said Civil
Case No. 58597 pending before him.  The
writ of preliminary injunction issued by us on October 27,1965 is hereby made
permanent.  With costs against private
respondents.

Concepcion, C.J., Zaldivar, Sanchez, Castro, Capistrano,
Teehankee and Barredo, JJ., concur.

Dizon, J., reserves his vote.

Makalintal, J., did not take
part.

Reyes, J., is on official trip.

^[1]
Civil Case No. 58597 of the Court of First Instance of Manila, Annex B,
Petition.

^[2]
Order of July 14, 1965, Annex G,
Petition.

^[3]
Respondent wife in this petition is Tan Soat Kiat alias Chan Shuet Kit and the minor children are Lim Lily and Lim Tai
Li.

^[4]
The husband and father of the two minor children is respondent Lim Chuy Tian.

^[5]
Petition, III, par. 4.

^[6]
Ibid, par. 7.

^[7]
Section 15, Commonwealth Act No. 473 as amended.

^[8]
101 Phil. 459 (1957).

^[9]
SCRA 300 (1963).

^[10]
Ibid, p. 305.

^[11]
18 SCRA 713, 722 (1966).

^[12]
18 SCRA 954, 959-960 (1966).