HON. MARTINIANO P. VIVO, AS (ACTING) COMMISSIONER OF IMMIGRATION, PETITIONER, VS. HON. GAUDENCIO CLORIBEL, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH VI, CHUA PIC…

This is another case involving Chinese nationals who came to the Philippines
allegedly for a visit but thereafter refuse to leave.  And one where the improvident issuance of an ex-parte preliminary injunction, followed by judicial
inaction, actually extended the stay of aliens beyond the period authorized by
law, and even beyond what the visitors had asked for.

The private respondents herein, Chua Pic
Luan, a Chinese mother, and her minor children, Uy Koc Siong and Uy
Tian Siang, arrived from Hongkong, and were admitted in the Philippines
as temporary visitors on 16 October
1960, with an initial authorized stay of three (3) months.  The husband and father of these aliens, Uy Pick Tuy, had applied for
naturalization, and the Court of First Instance of Manila (in its Civil Case
No. 43163) granted his petition therefor only on 11 April 1961.  Meanwhile, said temporary visitors petitioned
for an indefinite extension of their stay. 
Acting thereon, and purportedly in accordance with a Cabinet Resolution
on 29 February 1956 granting them concurrent jurisdiction to act on petitions
for extension of stay of temporary visitors, the Secretary of Foreign Affairs, Felixberto Serrano, on 16 May 1961, authorized the change
in category from temporary visitors to that of special non-immigrants under
Section 47(a) (2) of the Immigration Law for a period of stay extending up to
11 April 1963; and the Secretary of Justice, Alejo Mabanag, on 8 June 1961, approved the extension thus authorized,
subject to the condition that Chua Pic Luan, Uy Koc Siong,
and Uy Tian Siong shall secure reentry permits to Hongkong
valid at least two months over and beyond their extended stay, and that they
shall maintain their cash bonds filed with the Bureau of Immigration and to pay
the corresponding fees.  But the herein
petitioner, Commissioner of Immigration, refused to recognize the said
extension further than 16 June 1962, and denied acceptance of payment of the
extension fees.

Thereupon, the respondents, on 4 June 1962, requested the Office of the President of the Philippines
to extend their stay up to 11 April
1963 in order to coincide with their hoped – for and forthcoming
oath-taking of allegiance of Uy Pick Tuy.  The request was
referred to the Immigration Commissioner. 
The latter, on 11 June 1962, informed the respondents, through counsel,
that the new Secretary of Justice, Jose Diokno, had
ruled in January, 1962 that the Cabinet Resolution of 29 February 1956 had no
force and effect, and forthwith denied the request for extension of stay of the
respondents and advised them to leave the country voluntarily not later than 16
June 1962; otherwise, they would be proceeded against, in accordance with law.

The respondents did not leave the country on the date specified,
but instead filed a petition for mandamus
with injunction, docketed as Civil Case No. 50671 in the Court of First
Instance of Manila, to restrain the Commissioner of Immigration from issuing a
warrant for their arrest and from confiscating their bond for their temporary
stay and to order the Commissioner to implement the extension previously
authorized and approved by Secretaries Serrano and Mabanag.

His Honor, Judge Federico Alikpala, to
whose sala the case was assigned, denied the prayer
for preliminary injunction for lack of a prima facie showing and set the
case for hearing on 13 July 1962.  On the said date, which was pre-­selected
with the conformity of petitioner’s counsel, said counsel did not appear but
another lawyer appeared to ask for postponement.  Judge Alikpala
denied the postponement and dismissed the case without prejudice.

On 19 July 1962,
the herein respondents re-filed the same petition with the same court, which
was docketed as Civil Case No. 50993. 
The petition alleged three grounds therefor,
namely:  (1) the extension of the stay of
the petitioners (herein respondents) up to 11 April 1963 was authorized and
approved by the Sec­retaries of Foreign Affairs and of Justice; (2) they were
due for eventual conversion into Filipino citizens by virtue of the granting of
Uy Pick Tuy’s petition for
natural­ization, which had not been appealed, and he was due to take his oath
of al­legiance on 11 April 1963; and (3) their departure from the Philippines
would work great injury and injustice to themselves.  As before, the petition prayed for a
preliminary injunction.  This time, the
case was assigned to the sala of herein co-respondent
Judge Gaudencio Cloribel.

On 21 July 1962,
respondent judge, ex-parte and without
hearing, issued an order granting preliminary injunction, and, on a bond of
P3,000.00, issued the writ on 24 July
1962.

On 3 August 1962, the Immigration Commissioner filed his answer
(as respondent therein) stating, in defense, inter alia,
that the visitors’ authorized stay expired on 16 June 1962; that their change
in category from temporary visitors to special non-immigrants and the extension
of their stay up to 11 April 1963 by the Secretaries of Foreign Affairs and of
Justice was invalid, as subsequently ruled by their successors in office, and
that it is the Commissioner of Immigration who is vested by law with power to
grant extensions of stay; that the petition filed was not the proper remedy;
that the Solicitor-General will oppose the oath-taking of Uy
Pick Tuy; and that, even if Tuy
will become a Filipino citizen, his wife would not automatically become a
Filipino citizen, as she has yet to show that she, herself, can be lawfully
naturalized.

Three (3) years passed without the case having been heard.

Then, on 14 September
1965, the Commissioner filed a motion to dismiss the case for the
unreasonable length of time that the petitioners had failed to prosecute their
case, and that even the final relief that they sought, which was to implement
the extension up to 11 April 1963,
had already expired.  But, on opposition
of herein respondents, the court, on 26
October 1965, denied the motion to dismiss for being “not well
taken”.

On 9 December 1965,
the Immigration Commissioner filed with the Supreme Court the present original
action of certiorari and prohibition
with preliminary injunction, contesting the respondent court’s order of 21 July 1962 granting preliminary
injunction ex-parte, the writ of preliminary
injunction of 24 July 1962,
and the order of 26 October 1965
denying the motion to dismiss.

This Court required the respondents to answer, and on 16 December 1966, on motion of the
petitioning Commissioner, it restrained the private respondents from
representing themselves to be Filipinos and from exercising any of the rights
and privileges of Filipino citizens, until further orders from the Court.

The conclusions derivable from the foregoing chain of uncontested
facts are:  that herein private
respondents secured admission to the Philippines as tem­porary visitors by
falsely pretending to come for a visit but, actually, with the intent to stay
permanently; that, knowing that their authorized stay would expire on 16 June
1962, private respondents filed their petition in court for injunction, then
delayed its adjudication, the better to prolong their stay; and that private
respondents have thus succeeded in prolonging their stay in the country even
beyond the date that they had originally sought and asked for, which was 11
April 1963, upon the respondent court’s compounded abuse of discretion,
inaction and excess of jurisdiction.

Which was, in law, the expiry date of the respondents’ stay:  the
16th of June 1962, as fixed by the Immigration Commissioner, or 11 April 1963, as author­ized and
approved by the Serrano-Mabanag indorsements?  This question, as well as the question of
whether temporary visitors may change their status to special non-immigrants
without first departing from the country, were specifically answered by this
Court in Lim Chiok, et al., vs. Vivo, L-20513, 26 December 1963, in the following
manner:

“. . . The so-called Cabinet Resolution of February 29, 1956 did not specifically authorize
the Secretaries of Foreign Affairs and of Justice to extend the stay of
temporary visitors.  It could not legally
do so because under the express provi­sions of the Immigration Law, it is the
Commis­sioner of Immigration who is vested with the power and authority to
grant such extensions.  And, the Cabinet
has no power to amend or modify the law. 
We so declared in Ang Liong
vs. Commissioner of Immigration (51 O. G. 2893)^[1]
when we said:  ‘The Secretary of Foreign
Affairs is not authorized to admit into the Philippines aliens for temporary
stay, or extend the period authorized by the Commissioner of Immigration for their
stay in the Philippines.’

“Neither can the two Secretaries authorize the change of
status from temporary visitors to special non-immigrants.  The law and our decisions on the matter are
clear on this point:  temporary visi­tors
can not have their status changed to special non-immigrants without first
departing from the country.” (citing authorities)

As early as 1956, in fact, this Court had already ruled that the
period of stay of alien temporary visitors could not be extended without first
departing from the Islands; and in Chiong Tiao Bing vs. Commissioner of Immigration (28 Sept­ember
1956), 99 Phil. 1021, 1023, we ruled:

“No officer can relieve him of the departure requirements of
Section 9 of the Immigration Act, under the guise of ‘change’ or ‘correction’,
for the law makes no distinctions, and no officer is above the law.  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 to examining and verifying
whether 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 damages inherent in such ruling are
self-evident.”

That the Cabinet Secretaries acted as alter
egos of the President, as now claimed by the respondents, is not true;
because the President, when a request for ex­tension was made directly to him,
did not affirm the acts of the Secretaries but referred the matter to the
Commissioner.  The respondents knew that
said Secre­taries did not act as alter egos of the President;
otherwise, they would not have written the President after they received
the Secretaries’ indorsements.  And when the Immigration Commissioner
insisted upon private respondents departing from the Islands,
they did not dare ask the President for relief.

The other reason given by the respondents do support their
petition filed with the court below is their expectation to follow the
citizenship of Uy Pick Tuy
when he should take his oath of allegiance as a Filipino citizen.^[2]
Such ex­pectation is legally baseless.

As to the wife, Chua Pic Luan, she does
not, under Section 15 of the Revised Naturalization Law, automatically become a
Filipino citizen on account of her marriage to a naturalized Filipino citizen,
since she must first prove that she possesses all the qualifications and none
of the disqualifications for naturaliza­tion.^[3]

By having misrepresented before Philippine consular and
administrative authorities that she came to the country for only a temporary
visit when, in fact, her intention was to stay permanently; and for having
intentionally delayed court processes the better to prolong her stay,
respondent Chua Pic Luan demonstrated her incapacity
to satisfy the qualifications exacted by the third paragraph of Section 2 of
the Revised Naturalization Law, that she must be of good moral character and
must have conducted herself in a proper and irreproachable manner during the
entire period of her residence in the Philippines in her relation with the
constitu­ted government.

And, having lawfully resided in the Philippines
only from her arrival on 16 October
1960 to 16 June 1962,
she (Chua Pic Luan) also failed to meet the required
qualification of continuous residence in the Philippines
for ten (10) years, her stay beyond 16
June 1962 being illegal.

As to the foreign born minors, Uy Koc Siong and Uy
Tian Siong, our
pronouncement in Vivo vs. Cloribel, L-23239, 23 November 1966, 18 SCRA 713,
applies to them:

“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 . . . their lawful period of stay had expired and they had already
been required to leave, they were no longer lawfully residing here (Kua Suy, et al. v. The Commissioner
of Immigration, L-13790, October 31,
1963).”

Nor can these temporary visitors claim any right to a stay coterminous
with the result of the naturalization proceeding of their husband and father, Uy Pick Tuy, because their
authorized stay was for a definite period, up to a fixed day, a circumstance
incompatible with the termination of the naturalization pro­ceeding, which is
uncertain and can not be set at a definite date.^[4]

It is contended for the respondents that two-year old respondent Uy Tian Siong
cannot, under Article 363 of the Civil Code, be separated from his mother; that
husband Uy Pick Tuy has the
right to fix the residence of the family (Article 110), to the company of his
wife (Article 109) and those of his minor children (Article 316), and said wife
and children are obliged to obey and live with him (Articles 109, 311, 357);
and that to make said wife and children depart from the Philippines is
destructive of family solidarity (Articles 218-221).  These arguments are beside the point.  Said laws govern the relations between
husband and wife inter se or between private persons,^[5]
not the relations between visiting aliens and the sovereign host-country.  Respondents seem to have forgotten that they
came here for a visit, and, as visitors, they have no right to impose upon
their host a period of stay of their own choosing.  Furthermore, being still aliens,^[6]
they are not in a position to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that family rights and
duties are governed by their personal law, i.e., the laws of the nation to
which they belong even when staying in a foreign country (cf. Civil Code,
Article 15).

The date insisted upon by the Commissioner as the terminal date
of stay of the respondents (16 June
1962) had already passed when respondent judge issued his writ of
preliminary injunction (24 July 1962).  This fact should have cautioned him to issue
notice to the Immigration Commissioner and hold a hearing before issuing the
writ.  But respondent judge never did
hold a hearing, either on the preliminary injunction or on the merits, so that
it is mild to say that his ex-parte
preliminary injunction was improvidently issued.

The date insisted on by the respondents as their terminal date of
stay (11 April 1963) had,
likewise, long expired when the Commissioner filed his motion to dismiss (14 September 1965) in the court
below.  Plainly, the case had by then
become moot and academic,^[7]
and the court was left with no further controversy to adjudicate.  Hence, the respondent, Judge Cloribel, whimsically and arbitrarily denied the motion, in
open disregard of the public interest and of the national policy expressed in
the Immigration Act.

Thus, the respondent judge, by refusing to dismiss the case,
allowed these alien visitors to remain in the country for as long as the case
remained pending in his docket; in effect, he abusively arrogated unto himself
the power to grant ex­tensions of stay to temporary visitors, a faculty that,
under the law, belongs to the Commissioner. 
Thus, respondent judge, instead of applying and interpreting the law,
has effectively disregarded the same and violated its policy. 

WHEREFORE,
the order granting preliminary injunction on 21 July 1962, the writ of
preliminary injunction on 24 July 1962, and the order of 26 October 1965, all
issued in Civil Case No. 50993 of the Court of First Instance of Manila, are
all hereby set aside, and the respondent judge is hereby permanently restrained
from taking cognizance and assuming jurisdiction over said Civil Case No.
50993, except to dismiss it as moot and academic.  The preliminary injunction heretofore issued
by this Court is hereby made permanent. 
Costs against private respondents.

Concepcion, C.J., Dizon,
Makalintal, Sanchez, Castro, Angeles, Fernando, and Capistrano, JJ., concur.

Zaldivar, J., did not take part.

^[1]
106 Phil. 793, at pages 799-800, promulgated 29 December 1959. 
Ruling reiterated in Vivo vs. Arca,
L-21728, 27 December 1963,
and in Vivo vs. Cloribel, (23 November 1966) 18 SCRA 713.

^[2] Uy Pick Tuy took his oath of allegiance
in August, 1963 but the Solicitor-General moved for the cancellation of his
naturalization certificate on 16 March
1966 (Rollo, pages 68-69).

^[3]
Lee Suan Ay, et al. vs. Galang,
et al., 106 Phil. 706; Austria,
et al. vs. Conchu, L-20716, 22 June 1965; Lo Beng
Ha Ong vs. Republic, L-24503, 28 September 1968.

^[4]
Vivo vs. Arca, L-21728, 27 December 1963.

^[5]
Lo Bang Ha Ong vs. Republic, supra.

^[6] Vivo
vs. Cloribel,
supra.

^[7] Kua Suy vs. Commissioner of Immigration, L-13790, 31 October 1963; Vivo vs. Cloribel (1966) 18 S.C.R.A., 713,
722; Vivo vs. Cloribel
(1958) 22 S.C.R.A., 159, 164.