G. R. No. L-21732. October 17, 1966
SANTOS CHAN, SO MING LEE AND AMBROSIO CABO CHENG, PETITIONERS-APPELLANTS, VS. EMILIO L. GALANG, IN HIS CAPACITY AS COMMISSIONER OF IMMIGRATION, RESPONDENT-APPELLEE.
Philippines on
May 6, 1957, as a temporary
visitor until July 13, 1957,
upon a P1,000 cash bond filed by Ambrosio Cabo Cheng.
She contracted marriage with Santos Chan, a Filipino citizen, on July 8, 1957. And due thereto she
petitioned the Commissioner of Immigration, on July 10, 1957, for the
cancellation of her alien certificate of registration, and for her permanent
stay in the Philippines. . Pending resolution of her petition, she requested for
a 30-day extension of her permit to remain in this country, which request was
denied. As she failed to depart on July
13, 1957 – the date of expiration of her permitted stay – the bond
posted for her was ordered forfeited.[*]
Subsequently, on July 31, 1957, the Commissioner of Immigration wrote to So
Ming Lee, denying her request for reconsideration of the confiscation of the
bond and her petition for the cancellation of her alien certificate of
registration due to the finding that both So and Chan having previous marriages
– So claimed to be a divorcee – their marriage to each other was without force
and effect so that she could not have acquired Filipino citizenship. The
Commissioner advised So to leave within three days from
receipt of his letter or else appropriate action would be taken for her
departure.
On August 2, 1957, a petition for certiorari, prohibition and mandamus was
filed by So Ming Lee, Santos Chan and Ambrosio Cabo Cheng, before the Court of First Instance of Manila
praying for (1) annulment of the Commissioner of Immigration’s order denying So
Ming Lee’s petition for cancellation of her alien certificate of registration
and confiscation of the bond; (2) declaration of So Ming Lee as a Filipino
citizen, under Section 15 of Commonwealth Act 473; (3) refund of cash bond to
Cheng; and (4) restraint of the arrest of So Ming Lee and of deportation
proceedings against her.
Subsequently, a preliminary injunction was prayed for. Because a warrant was
issued for So’s arrest, the court, upon petitioners’
request, temporarily restrained the authorities from arresting her.
Instead of answering, as required by the court, the Commissioner filed a
motion to dismiss on the ground that the petition had no cause of action and
that it was premature because deportation proceedings had not yet been
terminated so that the Court of First Instance had no jurisdiction to review the
Commissioner’s actuations. To the motion to dismiss, petitioners filed an
opposition, denying its alleged grounds and stating further that the petition
may also be construed as one for declaratory relief.
In its order of August 29, 1957, the court below dismissed the petition,
declaring It premature and finding that in ordering So Ming Lee’s arrest
preliminary to deportation proceedings, the respondent Commissioner was only
complying with Section 37 of the Immigration Act of 1940; that the Board of
Immigration Commissioners had not yet decided on So’s
right to stay, so as to justify interference by the courts; and that the proper
remedy is habeas corpus. Appeal was taken therefrom by
petitioners to the Court of Appeals which Court certified the case to Us as involving questions purely of law.
At issue are, mainly, these two questions: First, did the trial court err in
acting upon the motion to dismiss and ruling that the petition was premature?
Second, should the petition be considered as also for a declaratory relief?
Petitioners argue that in a suit for certiorari once the court orders the
respondent to answer according to Section 6 of Rule, 67 of the Rules of Court
(now Section 6 of Rule 65), the respondent cannot move to dismiss. They maintain
that there are only two stages when the court may dismiss a special civil action
for certiorari, prohibition and/or mandamus, that is, first, upon the filing of
the petition but before the order to answer; and second, upon the filing of the
answer.
The rule in ordinary actions may be applied to special civil actions by
virtue of Section 1 of Rule 65 (now Section 1 of Rule 62) provided it is not
inconsistent with the provisions on special civil actions. There is no such
inconsistency that bars the application here of the rule (Rule 8, now Rule 16)
allowing the filing of a motion to dismiss before filing an answer.
Furthermore, in Arvisu v Vernara,[1] also a
petition for certiorari, where a motion to dismiss upon the ground that appeal
was the remedy – filed after an answer was required – was granted, this Court,
sustaining the dismissal, held that: “On principle, dismissal would also be
proper if, before the answer is filed, the attention of the court is called to
the fact that from its own allegations, the; petition appears to be without
merit.”
The petitioners asked the Commissioner to cancel her alien certificate of
registration on the ground that by virtue of So Ming Lee’s marriage to a
Filipino citizen, she is also a Filipino. Time and again We have said 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.[2] If it were otherwise, our laws could easily be
circumvented by the alien’s marriage to a Filipino. Temporary stay being a mere
privilege, temporary visitors are subject to deportation upon the expiration of
the period of their stay.[3]
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.[4]
The alien’s remedy is to leave the country and then apply for re-entry.[5]
From all the above considerations, therefore, it follows that the disputed
issue of citizenship – upon which So Ming Lee premises her alleged right to stay
and not to be deported – should first be threshed out in the Board of
Commissioners, instead of in the courts. This is in accordance with Section 37
of the Immigration Act of 1940, as amended:
“(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: x x x x“(b) Any alien who remains in the
Philippines, in
violation of any limitation, or condition under which he was admitted as a
nonimmigrant; x x x x“(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.”
And with regard to respondent Commissioner’s having looked into So Ming Lee’s
citizenship, it is well settled that 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.[6] It is not correct
to say that the question of citizenship should be determined exclusively by the
courts.[7]
Petitioners further allege abuse of discretion when respondent Commissioner
confiscated the bond, the petition for the cancellation of the alien certificate
of registration then being pending. 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.[8] An alien’s bondsman seeking refund of
the cash bond because of marriage of the alien to a Filipino husband, without
proof that the alien herself may be naturalized, does not sufficiently show
cause to obtain release of the bond. Stated otherwise, 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.[9]
And as mentioned, this proof should first be given in the proceedings 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 (Sec. 5, Rule 64, formerly Sec. 6, Rule 66,
Rules of Court). This is one such case, for the proper
forum in which to first resolve the dispute herein is the Board of
Commissioners.
WHEREFORE, the order of dismissal appealed from is hereby affirmed,
with costs against appellants.
SO ORDERED.
Concepcion, C.J., Reyes, J. B. L., Dizon, Regala, Makalintal, Zaldivar, Sanchez
and Ruiz Castro, JJ., concur.
[*] Also because of the failure
to produce her as required.
[1] 90 Phil. 621,
623-623.
[2]
King Tee v. Galang, G.R. No. L-18351, March 26, 1965; Brito v. Commissioner of Immigration, G.R. No.
L-16829, June 30, 1965, and
other cases therein cited.
[3]
Ong Se Lun v. Board of
Immigration Commissioners, 95 Phil. 785; Hao Yeng v. Commissioner of Immigration, G.R. No.
L-12342, April 20,
1959.
[4]
Choy King Tee v. Galang, supra, no to 2; Brito 7. Commissioner,
supra, note 2.
[5]
Kua Suy v. Commissioner,
G.R. No. L-13790, Oct.
31, 1963.
[6] Brito v. Commissioner, supra, note
2.
[7] Miranda v.
Deportation Board, 94 Phil. 531.
[8] Far
Eastern Surety & Insurance Go. v. Court of Appeals,
55 O.G. 9890; Shiu Shun Man v. Galang, G.R. No. L-16486, Dec. 20, 1961; Ng Kua To v. Galang, G.R. No. L-19140,
Feb. 29,
1964.
[9]
Ly Giok v. Galang, G.R.
No. L-10760, May 17,
1957.