NG HIN, PETITIONER AND APPELLEE, VS. THE COMMISSIONER OF IMMIGRATION, RESPONDENT AND APPELLANT.

Appeal from a decision of the Court of First Instance of Manila,
Hon. Froilan Bayona, presiding, declaring that an order of the
Commissioner of Immigration, annulling that of the First Deputy
Commissioner changing the status of the petitioner from “temporary
visitor” to “permanent resident,” is null and void, and restraining the
Commissioner of Immigration from carrying out the warrant of
deportation dated March 26, 1951, etc. The petition was decided upon a
stipulation of facts which is as follows:

“1. That appellee Ng Hin, a Chinese, was a permanent resident in this country prior to 1940;

“2.
That sometime in 1940, appellee left the country for China, and while
there, he secured a returning resident visa which was issued by the
American Consulate in Amoy, China in November 22, 1941. Said visa
however was not used;

“3. That on March 4, 1948, upon his
application, he was issued a returning resident visa but again, he did
not make use of the same and instead, applied for a temporary visitor
visa;

“4. That on November 26, 1948, provided with such,
temporary visitor’s visa, appellee arrived at the port of Manila and
was allowed to land as a temporary visitor’s;

“5. That upon
his request, appellee was granted by the appellant several extensions
for his temporary stay in this country, the last of which expired on
March 25, 1950;

“6. That upon his failure to leave the
country on said date, ‘Warrant of Arrest No. 1182’ was issued against
the appellee for violation of his stay in this country and deportation
proceedings was instituted against him (Annex A of the Answer to the
Amended Petition, p. 19, rec.);

“7. That after due hearing,
the Board of Commissioners promulgated its decision on June 14, 1950,
ordering the deportation of the appellee to the country of origin
(Annex E of the Answer to the Amended Petition, p. 20, rec.);

“8.
That pursuant thereto, a ‘Warrant of Deportation’ was issued on March
26, 1951, by the appellant herein (Annex C of the Answer to the Amended
Petition, p. 21, rec.),

“9. That three years thereafter,
i.e., on June 29, 3964, appellee filed with the apellant a petition for
correction of his status from temporary visitor to that of returning
resident (par. 2 of the Amended Petition, p. 95, rec.);

“10.
That on July 19, 1954, First Deputy Commissioner of Immigration
Francisco de la Rosa, issued an order allowing the correction to be
made, and cancelling and/or refunding the bonds filed for the
appellee’s temporary admission, (Annex D of the Answer to the Amended
Petition, p. 22, rec.);

“11. That on August 6, 1955; the
herein appellant in his communication to the appellee (Annex E, of the
Answer to the Amended Petition, p. 23, rec), set aside the said order
of the First Deputy Commissioner of Immigration dated July 19, 1954,
correcting the status of appellee from temporary visitor to returning
resident and, proceeded to enforce the Warrant of Deportation
previously issued against the appellee, at the same time, requiring the
latter to file a new cash bond of P3,000 and surety bond in the amount
of P7,000 within 72 hours from receipt to guarantee his temporary
release; and

“12. That on August 11, 1955, the appellee
instituted the instant proceedings for certiorari with preliminary
injunction in the Court of First Instance of Manila.”

Upon the above stipulation of facts the court below held that it is
not necessary for an alien who is a “permanent resident,” but who had
left the Philippines and is later admitted as “temporary visitor” in
order to join his family and arrange his affairs, to first leave the
Philippines and thereafter seek for his reentry as permanent resident,
citing the case of Chiong Tiao Bing and Chiong Tiao Siong vs. The Commissioner of Immigration, 99 Phil., 1020; 52 Off. Gaz. [15] 6551.

The Commissioner of Immigration has appealed to us from the said
decision, arguing that the decision of the court below has overlooked
certain important facts disclosed by the documentary evidence, namely,
that after the admission of petitioner-appellee on November 26, 1948,
as a temporary visitor, he had made several requests for the extension
of the period of his stay, which were granted up to March 25, 1950;
that upon petitioner’s failure to leave the country on the said date a
warrant for his arrest was issued and proceedings for deportation
instituted against him; that after due hearing, the Board of
Commissioners promulgated its decision on June 14, 1950 ordering
appellee’s deportation; and that pursuant thereto a warrant of
deportation was issued on March 26, 1951. So, it is argued, that
petition for correction of petitioner’s status was requested only after
over three years, since the warrant of deportation was issued. We find
this contention of the respondent-appellant well founded. The above
facts are contained in the stipulation of facts but appear to have been
actually ignored by the trial court and omitted in his findings of
facts.

It is next contended on behalf of the respondent-appellant that an
alien who has been admitted as a temporary visitor cannot change his
status without first departing from the country as expressly provided
by Section 9, last paragraph, of the Philippine Immigration Act of
1940, as amended by Republic Act No. 503. The provision ‘cited is as
follows:

“Sec. 9. * * *

“An alien who is admitted
as a nonimmigrant cannot remain in the Philippines permanently. To
obtain permanent admission, a nonimmigrant alien must depart
voluntarily to some, foreign country and procure from the appropriate
Philippine consul the proper visa and thereafter undergo examination by
the officers of the Bureau1 of Immigration at a Philippine port of
entry for determination of his admissibility in accordance with the
requirements of this Act.”

The above provision has been applied by us in the case of Chiong Tiao Bing, et al. vs. Commissioner of Immigration, supra; Ong Se Lun, et al. vs. Board of Immigration Commissioners, et al., 95 Phil, 785; Sy Hong, et al. vs. Commissioner of Immigration, G. R. No. L-10224, May 11, 1957.

The case cited by the court below is an exception to the application
of the rule contained in the last paragraph of Section 9 of the
Philippine Immigration Act of 1940, as amended, which exception was
justified by the circumstances of the case. In that case we said:

“But the circumstances of petitioners’ entry negates
any misrepresentation or estoppel. The state does not deny that they
originally had the right to return as permanent residents; that they
had been exercising efforts to have that right recognized since the
termination of the Pacific war, and that their acceptance of the
temporary visitor’s visa was due to their effort to escape from the
Communist forces that shortly afterwards took over their place of
residence in China. The Philippine Government was not therefore misled
as to the real claims of petitioners, that they were returning
residents; and hence, taking into account that petitioners were
themselves minors when they returned, we believed the Ong Se Lun ruling
does not apply to their case. In effect, the issuance of a temporary
visa in their favor appears as an assent on the part of the Philippine
authorities to their entry pending final decision on their right to
return. The decision in their favor was made in tile order of Deputy
Commissioner de la Rosa on June 25, 1954 (Exh. A), which could not be
validly revoked without notice to and due hearing of petitioners
herein. (Chiong Tiao Bing, et al. vs. Commissioner of Immigration, supra.)

In the case at bar the petitioner-appellee was admitted to the
Philippines since 1948, but he did not seek a correction of his status
until June 29, 1954 and only, after Ms deportation had been ordered on
June 14, 1950 and a warrant for his deportation issued on March 26,
1951. Had there been any special cause or reason why the general rule
should not apply to him, the petitioner-appellee should have taken
steps to make the correction as soon as his entry as a temporary
visitor was allowed in 1948. Note that while in the case of Chiong Tiao
Bing and Chiong Tiao Siong vs. The Commissioner of Immigration, supra,
in which an exception to the general rule was made, this Court found
that petitioner therein had to accept temporary visitor’s visa to
escape from communist forces and that the Government was not misled as
to the real claims of petitioners that they were returning residents.
No such circumstances have been proved or expressed in the stipulation
of facts. There is, therefore, no reason for making an exception to the
general rule clearly stated in the above-quoted provision of the law.

For the foregoing considerations, the decision appealed from is
hereby reversed and the injunction issued by the court below preventing
deportation of petitioner is hereby set aside, with costs against the
petitioner-appellee. So ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.