G.R. No. L-16932. September 29, 1961
JAN BAYER, PETITIONER AND APPELLANT, VS. THE HONORABLE BOARD OF COMMISSIONERS OF THE BUREAU OF IMMIGRATION, RESPONDENT AND APPELLEE.
DE LEON, J.:
for certiorari with preliminary injunction seeking to set aside “an
order of the Board of Commissioners of the Bureau of Immigration
compelling him to leave the country.” At the commencement of the
action, a writ of preliminary injunction was issued prohibiting the
arrest and deportation of petitioner pending the consideration and
resolution of his petition. After the parties had filed their
responsive pleadings, they presented a stipulation of facts. Based upon
this agreement of facts and the respective memoranda submitted by both
parties, the court rendered a decision dismissing the petition. The
petitioner appealed to the Court of Appeals but that court has
certified the case to Us on the ground that only questions of law are
involved.
The facts of the case as stipulated by the parties are as follows:
The petitioner is a Polish citizen, of legal age, single, and a
holder of an expired Polish passport. He arrived at Manila on March 17,
1949 and was allowed to land as transient under section 9 (b) of the
Philippine Immigration Act of 1940, as amended, and to remain herein
for a period which expired on May 15, 1949. Failing to leave within
this specified period, the petitioner was issued a warrant of arrest by
the immigration authorities. Deportation proceedings was accordingly
instituted under this warrant, but petitioner requested for an
extension of his temporary stay, and in a letter of the then Acting
Commissioner of Immigration, his petition was granted for a period
ending February 9, 1950. This was further extended to March 25, 1950 by
the same official.
On April 3, 1950, the said Acting Commissioner of Immigration, upon
petitioner’s request, allotted to the Philippine Consulate at Hongkong
Polish non-preference immigration quota No. 1 for the use of said
petitioner. Pursuant to this, he was advised to depart for Hongkong to
secure his visa from the Philippine consulate thereat, with the warning
that failure on his part to leave the country for that purpose would
render the allotment automatically cancelled. Upon petitioner’s failure
to leave, the Commissioner of Immigration, on November 6, 1950, issued
a second warrant for his arrest. The petitioner, however, requested
permission to have another quota number allotted to him for the year
1951, and acting favorably on this request, the Board of Commissioners,
under a decision dated December 28, 1950, suspended the deportation
proceedings then pending and allowed him to reside in the Philippines
until he could secure his new allotment, for which he was for a second
time required to depart for Hongkong to secure a visa. Having been
again unable to secure this visa, petitioner once more requested for
another immigration quota number for 1952, this time with the prayer
that the visa be waived by the Office of the President in order that he
would not have to leave the country for Hongkong. This was denied by
the said office on May 16, 1952.
In a letter dated August 11, 1952, from the Commissioner of
Immigration, the petitioner was granted a further extension of 20 days
ending August 31, 1952 to stay in the country. On account of his
failure to depart on or before that date, another warrant of arrest was
issued against him on November 24, 1952 and deportation proceedings was
again instituted.
Before the Board of Commissioners could render a decision, the
Commissioner of Immigration, on December 9, 1952, upon petitioner’s
filing of a cash bond of P3,000.00 and surety bond of P5,000.00, issued
an order releasing the latter temporarily from custody pending his
voluntary departure not later than June 1, 1953.
On May 26, 1953, Andres Soriano and Co. filed an application for
prearranged employment for the petitioner but this application was
denied by the Board of Commissioners on July 21, 1953.
On September 1, 1954, the petitioner, thru counsel, wrote the
Secretary of Foreign Affairs requesting that he be authorized to remain
in the Philippines and be allowed to pursue a lawful occupation. This
letter was indorsed to the Commissioner of Immigration, and on October
12, 1954 the First Deputy Commissioner denied the petition on the
ground that the Commissioner of Immigration is devoid of power or
discretion to permit alien temporary visitors or transients to remain
in this country for a period exceeding one year from the date of entry.
Petitioner was again given 15 days grace within which to depart
voluntarily.
On November 3, 1954, petitioner wrote direct to the President of the
Philippines begging that he be granted political asylum in this
country. This letter was indorsed to the Secretary of Foreign Affairs
who, on a return indorsement, dated November 17, 1954, also recommended
for the denial of the request, stating that there is a derogatory
information against the petitioner in the possession of the Military
Intelligence Service. It was on this same date that the petitioner
instituted the present proceedings.
The action must fail for being premature, it appearing that the
deportation proceeding object of the petition is still pending before
the Board of Commissioners of the Bureau of Immigration.
As shown from the facts narrated above, while it is true that
petitioner had been issued warrants of arrest, on three different
occasions, on account of his repeated violation of the conditions of
his permit to temporarily remain in this country, his expulsion had
always been stayed by the immigration authorities, in the latter’s
consideration to give him a chance to legalize his stay here, as when
on quite a number of times, they allowed him the opportunity to convert
his status from a temporary visitor to a non-quota immigrant. The
reason why deportation proceedings instituted under the last warrant
had not yet been terminated is that, before the Board of Immigration
Commissioners could render a decision thereon, petitioner made a
request for his temporary release under bond pending his voluntary
departure, which was granted on December 9, 1952, subject to certain
conditions, one of which is that “the petitioner shall depart herefrom
at his own expense as soon as conveniently possible, but in no case
later than June 1, 1953.” Petitioner made another violation of his
permit when he did not leave on or before the date just mentioned. And
again, the immigration authorities could not act upon this violation by
resuming deportation proceedings, because the petitioner, in an effort
to further prolong his stay, made appeals, first with the Secretary of
Foreign Affairs, and finally direct to the Chief Executive, to grant
him political asylum. It was upon denial of these requests that the
petitioner filed his petition for certiorari without waiting for the
decision of the immigration authorities on his proposed deportation.
In the case of Johnson vs. the Commissioner of Immigration, 101 Phil., 654; 56 Off. Gaz., (44) 6767, the petition for habeas corpus
questioning the authority of the immigration authorities to arrest and
detain the petitioner, was denied, for the reason that the same had
been filed before the Board of Commissioners of the Bureau of
Immigration has rendered its decision. As in that case, there appears
to be no order or decision of the immigration authorities in this
instance that could be the object of certiorari proceedings, and it
does not appear that they are unduly delaying their decision.
“Unless it is shown that the deportee is being
indefinitely imprisoned under the pretense of awaiting a chance for
deportation or unless the Government admits that it can not deport him
or unless the detainee is being held for too long a period our courts
will not interfere. * * *.” (Borovsky vs. Commissioner of Immigration and Director of Prisons, 84 Phil, 16., cited in Johnson vs. The Commissioner of Immigration, supra.)
In view of the foregoing, and without going into the other various
issues raised in this appeal, the decision of the lower court
dismissing the petition for certiorari is hereby affirmed, with costs
against the petitioner.
Bengzon, C. J., Padilla, Labrador, Concepcion, Reyes, J. B. L., and Paredes, JJ., concur.
Bautista Angelo, Barrera and Dizon, JJ., on leave, took no part.