Deportation of Foreigners

Who has jurisdiction over deportation of foreigner cases?

It is beyond cavil that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and that the Board of Commissioners has jurisdiction over deportation proceedings. Nonetheless, Article VIII, Section 1 of the Constitution has vested power of judicial review in the Supreme Court and the lower courts such as the Court of Appeals, as established by law. Although the courts are without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government and are not empowered to execute absolutely their own judgment from that of Congress or of the President, the Court may look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion, when the act of the legislative or executive department is contrary to the Constitution, the law or jurisprudence, or when executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. (G.R. No. 166199)

 How can a foreigner be expelled from the Philippines?

The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such privilege is not absolute or permanent and may be revoked. However, aliens may be expelled or deported from the Philippines only on grounds and in the manner provided for by the Constitution, the Philippine Immigration Act of 1940, as amended, and administrative issuances pursuant thereto.

Sec. 37. (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:

(1)    Any alien who enters the Philippines by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than at a designated port of entry;

(2)    Any alien who enters the Philippines who was not lawfully admissible at the time of entry;

(3)    Any alien who is convicted in the Philippines and sentenced for a term of one year or more for a crime involving moral turpitude committed within five years after his entry to the Philippines, or who, at any time after such entry, is so convicted and sentenced more than once;

(4)    Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;

(5)    Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management of a house of prostitution, or is a procurer;

(6)    Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry;

(7)    Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a nonimmigrant;

(8)    Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines;

(9)    Any alien who commits any of the acts described in sections forty-five and forty-six of this Act, independent of criminal action which may be brought against him: Provided, That in the case of an alien who, for any reason, is convicted and sentenced to suffer both imprisonment and deportation, said alien shall first serve the entire period of his imprisonment before he is actually deported: Provided however, That the imprisonment may be waived by the Commissioner of Immigration with the consent of the Department Head, and upon payment by the alien concerned of such amount as the Commissioner may fix and approved by the Department Head;

(10) Any alien who, at any time within five years after entry, shall have been convicted of violating the provisions of the Philippine Commonwealth Act Numbered Six Hundred and Fifty-Three, otherwise known as the Philippine Alien Registration Act of 1941,  or who, at any time after entry, shall have been convicted more than once of violating the provisions of the same Act;

(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;

(12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four hundred and seventy-three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship;

(13) Any alien who defrauds his creditor by absconding or alienating properties to prevent them from being attached or executed;

Is a foreigner convicted of a crime in the Philippines be deported?

Yes, except if the judge when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported. Hence, the foreigner will finish his sentence in Philippine prison.

 What is due process in deportation cases?

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.

Who bears the burden of proof in a deportation case involving entry?

In any deportation proceeding involving the entry of an alien the burden of proof shall be upon the alien to show that he entered the Philippines lawfully, and the time, place, and manner of such entry, and for this purpose he shall be entitled to a statement of the facts in connection with his arrival as shown by any record in the custody of the Bureau of Immigration.

Can a detained foreigner be released through bond?

Yes, any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration.

Where will the foreigner be deported?

An alien ordered deported shall, at the option of the Commissioner of Immigration, be removed to the country whence he came, or to the foreign port at which he embarked for the Philippines, or to the country of his nativity or of which he is a citizen or subject, or to the country in which he resided prior to coming to the Philippines.

CGRLAW & Associates

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email: claude.requino@cgrlaw.ph

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R.A. No. 4200: Anti-Wiretapping Law

Can a person privy or party to the conversation be liable to anti-wiretapping law when he records the conversation?

Yes. There is no distinction in the law whether the person who made the recording was privy to the conversation or not. The determining factor is that the recording was made without the consent and knowledge of all the parties.

Is the nature of the conversation material?

No. The substance of the conversation need not be specifically alleged in the information. What RA 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated in the law. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorded would suffice to constitute an offense. (G.R. No. 93833)

What is private communication?

Private communication includes private conversation. In its ordinary signification, communication connotes the act of sharing or impairing, as in conversation, or signifies the process by which meanings or thoughts are shared between individuals through common system or symbols. These definitions are broad enough to include verbal or non-verbal, written or expressive communications of meanings or thoughts.

Is listening through an extension phone a violation?

No. There must be a physical interruption through wiretap or a deliberate installation of a device or arrangement for that purpose. An extension telephone is for ordinary official use.

CGRLAW & Associates

5F First Global Building, 122 Gamboa Street
corner Salcedo Street, Legaspi Village, Makati City
Tel. No. (+63 2) 985 4322
email: claude.requino@cgrlaw.ph

            info@cgrlaw.ph

website: http://www.cgrlaw.ph

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. You are hereby notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.

Management Prerogative to Transfer Employee Security Guards

Is transfer of a security guard equivalent dismissal?

No. In cases involving security guards, a relief and transfer order in itself does not sever employment relationship between a security guard and his agency. An employee has the right to security of tenure, but this does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where his service, as security guard, will be most beneficial to the client. (G.R. No. 160940)

Can the agency transfer its security guard?

Yes. The right to transfer employees from one office to another- provided there is no demotion in rank or diminution of salary, benefits and other privileges- is judicially recognized as a prerogative inherent in the employer's right to effectively control and manage the enterprise. (G.R. No. 118159)

To repeat for emphasis, the security guard's right to security of tenure does not give him a vested right to the position as would deprive the company of its prerogative to change the assignment of, or transfer the security guard to, a station where his services would be most beneficial to the client. Indeed, an employer has the right to transfer or assign its employee from one office to area of operation to another, or in pursuit of its legitimate business interest, provided there is no diminution in rank or diminution of salary, benefits, and other privileges, and the transfer is not motivated by discrimination or bad faith, or effected as a form of punishment ot demotion without sufficient cause.

Is the lapse of 6 month off-detailed period equivalent to constructive illegal dismissal?

No. It is manifestly unfair and unacceptable to immediately declare the mere lapse of six month period of floating status as a case of constructive dismissal, without looking into the peculiar circumstances hat resulted in he security guard's failure to assume another post. (G.R. No. 198538)  

DECLARATION OF NULLITY OF MARRIAGE: PSYCHOLOGICAL INCAPACITY

Is the defendant spouse required to be personally examined by a psychologist to declare marriage void by reason of psychological incapacity?

No. There is no requirement that the defendant spouse be personally examined by a psychologist. What matters is whether the totality of evidence presented is adequate to sustain a finding of psychological incapacity. (G.R. No. 180668)


Are irreconcilable differences a ground for psychological incapacity?

No. The aw requires that the psychological incapacity be a downright incapacity, not refusal or neglect or difficulty, much less ill will. The mere showing of irreconcilable differences and conflicting personalities does not constitute psychological incapacity. (G.R. no. 166579)


Do you need psychologist to determine psychological incapacity?

Yes. In the task of ascertaining the presence of psychological incapacity as a ground for the nullity of marriage, the courts, which are concededly not endowed with expertise in the field of psychology, must of necessity rely on the opinions of experts in order to inform themselves on the matter, and thus enable themselves to arrive at an intelligent and judicious judgment. Indeed, the conditions for the malady of being grave, antecedent and incurable demand the in-depth diagnosis by experts. (G.R. No. 166357, 14 Janaury 2015)

PRIVACY: CCTV AND SURVEILLANCE CAMERAS

Can any person take pictures of your home without your consent? Can your neighbour install a CCTV that would pry to your property? NO NO.

In this day and age, video surveillance cameras are installed practically everywhere for the protection and safety of everyone. The installation this cameras, however, should not cover places where there is reasonable expectation of privacy, unless the consent of the individual, whose right to privacy would be affected was obtained. Nor should these cameras be used to pry into the privacy of another's residence or business office as it would be no different from eavesdropping, which is a crime under Republic Act No. 4200 or the Anti-Wiretapping Law. (Hing v. Choachuy, G.R. No. 179736)

Clearly, it is a violation of one's right to privacy when CCTV or cameras are installed in a place that a person expects privacy. A CCTV that overlooks the neighbor's property is illegal. Taking pictures of the property or house of another without the owner's consent is illegal. Nevertheless, an individual's right to privacy should not be confined to his house or residences as it may extend to places where he has the right to exclude the public or deny them access. The phrase "prying into the privacy of another's residence," therefore, covers places, locations, or even situations which an individual considers as private. As long as his right is recognized by society, other individuals may not infringe on his right to privacy.

The right to privacy is the right to be let alone.

The right to privacy is enshrined in our Constitution and in our laws. It is defined as "the right to be free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities." It is the right of an individual "to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters in which the public is not necessarily concerned." Simply put, the right to privacy is "the right to be let alone."

The Bill of Rights guarantees the people’s right to privacy and protects them against the State’s abuse of power. In this regard, the State recognizes the right of the people to be secure in their houses. No one, not even the State, except "in case of overriding social need and then only under the stringent procedural safeguards," can disturb them in the privacy of their homes.

The right to privacy under Article 26(1) of the Civil Code covers business offices where the public are excluded therefrom and only certain individuals are allowed to enter.

Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to privacy and provides a legal remedy against abuses that may be committed against him by other individuals. It states:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence;

x x x x

This provision recognizes that a man’s house is his castle, where his right to privacy cannot be denied or even restricted by others. It includes "any act of intrusion into, peeping or peering inquisitively into the residence of another without the consent of the latter." The phrase "prying into the privacy of another’s residence," however, does not mean that only the residence is entitled to privacy. As elucidated by Civil law expert Arturo M. Tolentino:

Our Code specifically mentions "prying into the privacy of another’s residence." This does not mean, however, that only the residence is entitled to privacy, because the law covers also "similar acts." A business office is entitled to the same privacy when the public is excluded therefrom and only such individuals as are allowed to enter may come in. x x x (Emphasis supplied)

Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not be confined to his house or residence as it may extend to places where he has the right to exclude the public or deny them access. The phrase "prying into the privacy of another’s residence," therefore, covers places, locations, or even situations which an individual considers as private. And as long as his right is recognized by society, other individuals may not infringe on his right to privacy. The CA, therefore, erred in limiting the application of Article 26(1) of the Civil Code only to residences.

The "reasonable expectation of privacy" test is used to determine whether there is a violation of the right to privacy.