HON. MARTINIANO P. VIVO, AS ACTING COMMISSIONER OF IMMIGRATION, PETITIONER, VS. HON. GAUDENCIO CLORIBEL, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BR. VI, ET AL., RESPO…

Vivo versus Cloribel

The Case

This is a special civil action for certiorari and prohibition with preliminary injunction, brought before the Supreme Court by the Commissioner of Immigration against Judge Gaudencio Cloribel of the Court of First Instance of Manila, Branch Six, and against a Chinese resident and his wife and minor children who had entered the country as temporary visitors. The Commissioner asks the Court to review and set aside the preliminary injunction issued by the respondent Judge, which restrained the Commissioner from arresting the visitors or requiring them to leave the country, and to set aside the Judge's later order refusing to dissolve that injunction. The case matters because it fixes who holds the power to extend the stay of aliens, and because it teaches that an extension of stay is a matter of grace, not of right.

Procedural History

On September 17, 1962, Co Chin, in behalf of his wife and children, filed a petition for prohibition with preliminary injunction before the Court of First Instance of Manila, docketed as Civil Case Number 51626 and assigned to Branch Six under Judge Cloribel. The next day, September 18, 1962, the respondent Judge ordered the Commissioner to answer within ten days and, pending consideration of the petition, granted a writ of preliminary injunction upon a bond of 4,000 pesos, enjoining the Commissioner from arresting the visitors or requiring them to leave and from confiscating the cash bond posted in their behalf. The Commissioner filed his answer on October 16, 1962. On January 7, 1964, the Commissioner filed a motion to dissolve the writ, on the ground that even assuming the validity of the extension, the authorized period of stay up to June 24, 1963 had already expired. On March 30, 1964, the respondent Judge denied the motion, stating only that it was not well taken. The Commissioner then filed this special civil action before the Supreme Court on July 25, 1964. The Court required the respondents to answer but issued no preliminary injunction, and the parties submitted the case for decision upon the filing of memoranda in lieu of oral argument.

Facts

On January 9, 1961, Sy King Fong and her minor children Co Belo, Co E. Khon and Co Shan Shan applied for and were granted a passport visa at the Philippine Consulate General in Hongkong, for the purpose of visiting Sy King Fong's husband and the children's father, Co Chin, a Chinese resident in the Philippines. Co Chin posted with the Bureau of Immigration a bond of 28,000 pesos, undertaking that his wife and children would depart on or before the date specified, would maintain the status under which they were admitted, and would not violate any limitation or condition of their admission. They arrived on January 17, 1961 for an authorized stay of three months, or up to April 17, 1961, while Co Chin's application for naturalization was pending.

On February 3, 1961, the Commissioner was informed by letter from the Office of the President that the President had authorized an extension of their stay for another three months, up to July 17, 1961. On June 24, 1961, Co Chin's petition for naturalization was granted by the Court of First Instance of Manila, and the judgment was not appealed. On July 3, 1961, the visitors requested another extension of three months, up to October 17, 1961, and this was granted. On August 17, 1961, they wrote the Secretary of Justice, through the Secretary of Foreign Affairs, requesting an extension of two years from June 24, 1961, revealing for the first time that the naturalization petition had been granted. The Secretary of Foreign Affairs approved their change in category from temporary visitors to special non-immigrants under Section 47(a)(2) of the Philippine Immigration Act of 1940, as amended, and extended their stay to a period expiring on June 24, 1963. On August 24, 1961, the Secretary of Justice approved the extension up to June 24, 1963, subject to the condition that they secure reentry permits to Hongkong valid at least two months over and beyond their extended stay and maintain their cash bonds. The Commissioner, however, extended their stay only up to October 17, 1962.

After the 1961 national elections, a change of administration came. The new Secretaries of Foreign Affairs and of Justice maintained that the power to extend the stay of aliens was vested by law in the Commissioner of Immigration, not in them. On August 29, 1962, the Commissioner, with the approval of the new Secretary of Justice, issued Immigration Circular Number V-101, abrogating all extensions of stay of temporary visitors who arrived in 1961 and prior years. On August 31, 1962, the Commissioner required the visitors to leave the country on September 18, 1962. They did not comply; instead, they filed the petition for prohibition below.

Issues

• Whether or not the respondent Judge acted in excess of jurisdiction and with grave abuse of discretion in issuing the writ of preliminary injunction and in refusing to dissolve it after the extended period of stay had expired.
• Whether or not appeal, or a motion for reconsideration, was an adequate remedy that barred the Commissioner's resort to certiorari and prohibition.
• Whether or not the Secretaries of Foreign Affairs and of Justice had authority to extend the visitors' stay and to change their status from temporary visitors to special non-immigrants.
• Whether or not the grant of the naturalization petition in favor of Co Chin entitled his wife and children to remain in the Philippines as citizens by operation of law.

Applicable Provisions

Section 9 of the Philippine Immigration Act of 1940 provides:

An alien who is admitted as a non-immigrant, 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 Bureau of Immigration at a Philippine port of entry for determination of his admissibility in accordance with the requirements of this Act.

This provision binds the visitors, who entered as non-immigrants, to depart before seeking permanent admission, and it defeats any claim to remain permanently on the strength of their temporary admission.

Ruling

On the first issue, the Court held that the respondent Judge acted against the law, and therefore in abuse of discretion and excess of jurisdiction, in refusing to dissolve the preliminary injunction after June 24, 1963. The Court relied on its earlier ruling in a case with facts alike in all respects, where it held that an extension of an alien's period of stay is a matter of grace, and not of right, and should be strictly interpreted. Here, the indorsements of the Secretaries specified a definite period of stay up to June 24, 1963, which had long expired, and the visitors were required to secure reentry permits valid at least two months over and beyond their extended stay. The Court noted that the precedent was promulgated on December 27, 1963, three months before the respondent Judge issued his questioned order on March 30, 1964, and observed that judges are supposed to keep track of current jurisprudence.

On the second issue, the Court held that appeal was not the adequate remedy. The respondent court seemed to be dragging its feet: although the case was instituted on September 17, 1962 and issues were joined on September 27, 1962, no action was taken until the motion to dissolve was filed on January 7, 1964, and even after the longest extension had expired, the court refused to dissolve the writ. Appeal cannot promptly relieve the aggrieved party from the injurious effect of the order, and the aliens would meanwhile unduly prolong their illegal stay. A motion for reconsideration would likewise not have availed, since the court took almost three months to resolve the motion for dissolution.

On the third issue, the Court held that the Cabinet Resolution of February 29, 1956 did not support the action of the two Secretaries. The administration and enforcement of the immigration laws lie with the Bureau of Immigration; the Cabinet has no power to amend or modify the law; and temporary visitors cannot have their status changed to special non-immigrants without first departing from the country.

On the fourth issue, the Court held that the naturalization of Co Chin did not improve the position of his wife and children. The marriage of an alien woman to a Philippine citizen does not automatically make her a Philippine citizen; she must establish in appropriate proceedings that she has all the qualifications and none of the disqualifications required by law. As to foreign-born minor children, they are extended citizenship if dwelling in the Philippines at the time of the naturalization of the parent, and dwelling means lawful residence. Since their lawful period of stay had already expired and they had already been required to leave before the father was supposed to have taken his oath, they were no longer lawfully residing here.

Doctrine

An extension of an alien's period of stay is a matter of grace, not of right, and should be strictly interpreted. The power to extend the stay of temporary visitors is vested by law in the Commissioner of Immigration, not in the Secretaries of Foreign Affairs and of Justice, and the Cabinet cannot amend or modify the law. Temporary visitors cannot have their status changed to special non-immigrants without first departing from the country, consistent with the last paragraph of Section 9 of the Philippine Immigration Act of 1940. The marriage of an alien woman to a Philippine citizen does not automatically confer citizenship on her; she must establish in appropriate proceedings that she has all the qualifications and none of the disqualifications required by law. Foreign-born minor children are extended citizenship only if dwelling in the Philippines at the time of the naturalization of the parent, and dwelling means lawful residence.

Disposition

The Court granted the petition, set aside the preliminary injunction issued by the respondent Judge and his order refusing to dissolve it, and held that the Commissioner of Immigration was entitled to enforce the immigration laws against the visitors.

Remember This

The single line worth memorizing is that an extension of an alien's stay is a matter of grace, not of right, and is strictly interpreted. Examiners use this case to test the limits of administrative authority over aliens and the rule that a preliminary injunction cannot be used to defeat the clear objectives of the immigration law.