THIRD DIVISION
G.R. No. 204105, October 14, 2015
GERONIMO S. ROSAS, Petitioner, v. DILAUSAN MONTOR AND IMRA-ALI M. SABDULLAH, Respondents.
D E C I S I O N
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari 1 assailing the March 9, 2012 Decision2 and October 16, 2012 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 05497 which affirmed the Office of the Ombudsman's (OMB's) March 2, 2007 Decision4 and July 4, 2008 Order5 in OMB-V-A-05-0036-A finding petitioner Geronimo S. Rosas, Regional Director of the Bureau of Immigration Mactan International Airport Station, guilty of grave misconduct.
The facts follow:
On December 7, 2004, Jafar Saketi Taromsari (Taromsari) and Jalal Shokr Pour Ziveh (Ziveh), both Iranian nationals, arrived in the Philippines at the Mactan-Cebu International Airport (MCIA). After staying in a hotel in Cebu City for a few days, they left for Narita, Japan on December 14, 2004.
On December 16, 2004, Japanese immigration authorities discovered that Taromsari and Ziveh had counterfeit or tampered Mexican and Italian passports and used falsified names: "Jaime Humberto Nenciares Garcia" for Ziveh and "Marco Rabitti" for Taromsari. For using these fraudulent passports and lack of entry visa, the Japanese immigration authorities denied entry to Taromsari and Ziveh and sent them back to the Philippines. Taromsari and Ziveh arrived at MCIA on the same day at 6:45 p.m. and admitted at the detention cell of the Bureau of Immigration (BI) Cebu Detention Center.6
In a Memorandum7 dated December 15, 2004 addressed to BI Commissioner Alipio F. Fernandez, petitioner Geronimo S. Rosas, Senior Immigration Officer and Alien Control Officer of Cebu Immigration District Office, who was then also designated as Regional Director, gave the following report:
On flight PR 433 from Narita International Airport, Japan on Thursday, 16th of December 2004 at 18:45 Hours, passengers JAFAR SAKETI TAROMSARI @ Marco Rabitti (Italian) and JALAL SHOKR POUR ZIVEH @ Jaime Humberto Nenciares Garcia (Mexican), both Iranian nationals, were boarded back to Mactan-Cebu International Airport after caught by the Japanese Immigration authorities thereat for using fake and fraudulent Italian and Mexican passports, respectively.
During the investigation conducted by Atty. Serafin A. Abellon, Special Prosecutor in the presence of Regional Director Geronimo S. Rosas, subjects admitted that they bought the Italian and Mexican passports from a certain "KURAM" in Tehran, Iran, whom they allegedly attached their respective pictures substituting the pictures of the real owners and paid US$3,000 at US$1,500.00 each, for the purpose of traveling in comfort without the requirement of entry visa to Japan and finally, to work thereat, considering that JAFAR SAKETI TAROMSARI had worked there before for three (3) years from 1999 to 2002 and earned a lot of money until he was caught and deported by Japanese Immigration authorities, that they both arrived in the Philippines for the first time at MCIA on December 07, 2004 on board MI 566 from Singapore using Italian and Mexican passports under the names of MARCO RABITTI and JAIME HUMBERTO NECIARES GARCIA, respectively. Subsequently, they left for Narita, Japan on December 14, 2004 and were sent back to MCAI on December 16, 2004.
That the acts committed by the subjects are plain violations of our PIA of 1940 as amended under Section 29 (a) (14) and therefore, they are excludable. Recommend inclusion of their names in the Blacklist.
In view of the foregoing, this Office finds [petitioner] Rosas guilty of Grave Misconduct. Considering the gravity of the offense and the fact that this is not the first time [petitioner] Rosas is administratively sanctioned, the penalty of DISMISSAL is hereby imposed pursuant to Rule XIV, Section 23 of the Omnibus Rules Implementing Book V of Executive Order No. 292.
However, finding no conspiracy between [petitioner] Rosas and respondents Elmer Napilot and Ramon Ugarte, the case against Napilot and Ugarte is hereby dismissed for want of substantial evidence.
SO DECIDED.16ChanRoblesVirtualawlibrary
WHEREFORE, in view of the foregoing premises, the Petition for Review dated November 2, 2010 is hereby DISMISSED.
SO ORDERED.20ChanRoblesVirtualawlibrary
WHETHER PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL FOR THE PURELY DISCRETIONARY ACTS OF THE ASSIGNED IMMIGRATION OFFICERS IN ORDERING THE EXCLUSION OF THE IRANIAN NATIONALS NOTWITHSTANDING THE OVERWHELMING EVIDENCES THAT WOULD SHOW THAT PETITIONER ROSAS HAS NO INVOLVEMENT AND PARTICIPATION IN RENDERING THE SAID EXCLUSION ORDER AND NOTWITHSTANDING THAT THE SAID EXCLUSION ORDER WAS VALIDLY AND PROPERLY ISSUED BY THE IMMIGRATION OFFICERS UNDER THE PREVAILING CIRCUMSTANCES;
WHETHER OR NOT PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL SANS ANY SPECK OF EVIDENCE THAT HE GAVE UNWARRANTED BENEFIT TO THE IRANIAN NATIONALS AND THAT HE WAS MOTIVATED BY CORRUPT MOTIVES WHEN HE SUBMITTED AN INCIDENT/RECOMMENDATORY REPORT TO THE COMMISSIONER OF IMMIGRATION AFFIRMING THE EXCLUSION ORDER OF THE ASSIGNED IMMIGRATION OFFICERS AGAINST THE IRANIAN NATIONALS;
WHETHER OR NOT PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL FOR NOT INITIATING THE DEPORTATION AND CRIMINAL PROCEEDINGS AGAINST THE IRANIAN NATIONALS WHICH UNDER THE LAW CAN ONLY BE EXERCISED BY THE IMMIGRATION COMMISSIONER WHO WAS FULLY INFORMED OF THE CIRCUMSTANCES PERTAINING TO THE INCIDENT INVOLVING THE IRANIAN NATIONALS;
WHETHER THE COURT OF APPEALS HAS SUBSTANTIAL BASIS TO CONCLUDE THAT THE DELAY IN THE EXCLUSION OF THE IRANIAN NATIONALS APPEARED TO BE IRREGULAR AND DEVIATED FROM THE NORM NOTWITHSTANDING THE OVERWHELMING EVIDENCES ON RECORD THAT WOULD SHOW THAT THE SAME HAS FACTUAL AND LEGAL BASIS; AND
WHETHER OR NOT THE, COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE SETTLED FACTS AND EVIDENCES THAT WOULD SHOW THAT PETITIONER ROSAS HAS NOT DONE ANY MISCONDUCT IN RELATION TO THE INCIDENT INVOLVING THE IRANIAN NATIONALS.22ChanRoblesVirtualawlibrary
x x x Deporting a person who is already in the country, and therefore enlarged, is depriving him of a privilege which he, at least at the time, is enjoying in the United States; whereas a person being denied the privilege to enter is not deprived of any liberties which he had theretofore enjoyed. The gate is simply closed and he may not enter.
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 "round for deportation as charged against the alien:
x x x x
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;cralawlawlibrary
x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary
Sec. 45. Any individual who:
x x x x
(c) Obtains, accepts or uses any immigration document, knowing it to be false; or
x x x x
Sec. 46. Any individual who shall bring into or land in the Philippines or conceal, harbor, employ, or give comfort to any alien not duly admitted by any immigration officer or not lawfully entitled to enter or reside within the Philippines under the terms of the immigration laws, or attempts, conspire with, or aids another to commit any such act, and any alien who enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by willful, false, or misleading representation or willful concealment of a material fact, shall be guilty of an offense, and upon conviction thereof, shall be fined not less than five thousand pesos but not more than ten thousand pesos, imprisoned for not less than five years but not more than ten years, and deported if he is an alien. Dismissal by the employer before or after apprehension does not relieve the employer of the offense.
x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary
Q Do you understand why you were sent back to [MCIA] from Narita, Japan? A. Yes sir, we were caught using fake Italian and Mexican passports by Japanese Immigration officers at Narita International Airport, Japan. Q. What fake passports are you referring to? A. We were using fake Italian and Mexican passports in entering the Philippines at [MCIA]. x x x x Q. Where are these Italian and Mexican passports, you mentioned? A. The Japanese Immigration authorities confiscated them. Q. What was your purpose in going to Japan with fake passports? A. Our only purpose is to find jobs there, so that we can support financially our family in Tehran, Iran but Iranians are required to secure entry visas and it is very difficult to get entry visas from their embassy. Italians and Mexicans are not required entry visas to Japan. Q. Can you narrate to us how did you and your friend able to reach our country? A. First, we applied entry visas at the Thailand Embassy in Tehran, Iran using our Iranian passports, which visa application was granted to us on October 26, 2004. W[e] went to Bangkok, Thailand via Dubai and stayed there for one (1) month and came back to Iran. The last time we left Tehran, Iran again via Dubai on December 02, 2004 to Bangkok, Thailand. Our destination this time [was] to reach Japan via Malaysia & Cebu, Philippines. We arrived Malaysia in December 06, 2004. Q. What travel documents were you using from Bangkok to Malaysia? A. We were using our Iranian passports, sir. Q. From Malaysia to Mactan-Cebu, what travel documents were you using? A. From Malaysia, we left on December 06, 2004 and passed by Singapore where we spent about ten (10) hours at the airport, we were using our Iranian passports, we finally boarded Silk Air to [MCIA] and upon arrival in [MCIA], we were using Italian and Mexican passports. x x x x Q. Are you aware that you are violating our Immigration laws in the country? A. Yes, sir, but we have to use fake travel documents because of our desire to work and earn a living. x x x x Q. Have you been to Japan? A. Yes, sir. I was there for three (3) years, 1999 to 2002 and I earned a lot of money but I was caught and departed back to Iran.38
Endnotes:
*Designated additional Member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Raffle dated September 30, 2015.
** Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes, per Special Order No. 2084 dated June 29, 2015.
*** Designated additional Member in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated October 22, 2014.
1 Under Rule 45 of the Rules of Court.
2 Rollo, pp. 36-46. Penned by Associate Justice Eduardo B. Peralta, Jr. with Associate Justices Edgardo L. Delos Santos and Gabriel T. Ingles concurring.
3 Id. at 47-48. Penned by Associate Justice Gabriel T. Ingles with Associate Justices Edgardo L. Delos Santos and Pamela Ann Abella Maxino concurring.
4 Id. at 87-100. Penned by Graft Investigation and Prosecution Officer Nelia C. Lagura.
5 Id. at 119-123. Penned by Graft Investigation and Prosecution Officer II Nelia C. Lagura.
6 OMB Records, p. 6.
7Rollo, p. 341.
8 Id. at 203.
9 OMB Records, p. 26.
10 Id.at 7.
11 TSN, April 3, 2008, p. 5 I (OMB Clarificatory Hearing), rollo, p. 319.
12 Id. at 49-52.
13 RA No. 3019, Section 3(e) provides:
SEC. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
14 Rollo, pp. 53-65.
15 Petitioner initially stated Section 29(a)(14) as (he basis for exclusion but explained that there had been a clerical error and said that it should have read as Section 29(a)(17). Rollo, p. 57.
16 Rollo, pp. 99-100.
17 Id. at 101-103.
18 Supra note 5.
19 Under Rule 43 of the Rules of Court.
20Rollo, p. 45.
21 Supra note 3.
22 Id. at 14-15.
23Office of the Ombudsman v. Amalio A. Mallari, G.R. No. 183 161, December 3, 2014, p. 16.
24Gupilan-Aguilar v. Office of the Ombudsman, G.R. No. 197307, February 26, 2014, 7 17 SCRA 503, 532.
25 Office of the Ombudsman v. Amalio A. Mallari, supra note 23.
26Secretary of Justice v. Koruga, 604 Phil. 405 (2009).
27 Id. at 419.
28 PHILIPPINE IMMIGRATION ACT of 1940, Section 10 provides:
Sec. 10. Presentation of unexpired passport. - Nonimmigrants must present for admission into the Philippines unexpired passports or official documents in the nature of passports issued by the governments of the countries to which they owe allegiance or other travel documents showing their origin and identity as prescribed by regulations, and valid passport visas granted by diplomatic or consular officers, except that such documents shall not be required of the following aliens:
(a) A child qualifying as a nonimmigrant, born subsequent to the issuance of the passport visa of an accompanying parent, the visa not having expired; and
(b) A seaman qualifying as such under Section 9 (c) of this Act.
29 PHILIPPINE IMMIGRATION ACT of 1940, Section 6 provides:
Sec. 6. Powers of Immigration Officer. - The examination of aliens concerning their right to enter or remain in the Philippines shall be performed by Immigrant Inspectors with the advice of medical authorities in appropriate cases. Immigrant Inspectors are authorized to exclude any alien not properly documented as required by this Act, admit any alien complying with the applicable provisions of the immigration laws and to enforce the immigration laws and regulations prescribed thereunder. Immigrant Inspectors are also empowered to administer oaths, to take and consider evidence concerning the right of any alien to enter or reside in the Philippines, and to go aboard and search for aliens on any vessel or other conveyance in which they believe aliens are being brought into the Philippines. Immigrant Inspectors shall have the power to arrest, without warrant, any alien who in their presence or view is entering or is still in the course of entering the Philippines in violation of immigration laws or regulations prescribed thereunder.
30 PHILIPPINE IMMIGRATION ACT of 1940, Section 29 provides:
Sec. 29. (a) The following classes of aliens shall be excluded from entry into the Philippines:x x x x
- Idiots or insane persons and persons who have been insane;
- Persons afflicted with a loathsome or dangerous contagious disease, or epilepsy:
- Persons who have been convicted of a crime involving moral turpitude;
- Prostitutes, or procurers, or persons coming for any immoral purposes;
- Persons likely to become, public charge;
- Paupers, vagrants, and beggars;
- Persons who practice polygamy or who believe in or advocate the practice of polygamy;
- Persons who believe in or advocate the overthrow by force and violence of the Government of the Philippines, or of constituted lawful authority, or who disbelieve in or are opposed to organized government, or who advocate the assault or assassination of public officials because of their office, or who advocate or leach principles, theories, or ideas contrary to the Constitution of the Philippines or advocate or teach the unlawful destruction of property, or who are members of or affiliated with any organization entertaining or teaching such doctrines;
- Persons over fifteen years of age, physically capable of reading, who cannot read printed matter in ordinary use in any language selected by the alien, but this provision shall not apply to the grandfather, grandmother, father, mother, wife, husband or child of a Philippine citizen or of an alien lawfully resident in the Philippines;
- Persons who are members of a family accompanying an excluded alien, unless in the opinion of the Commissioner of Immigration no hardship would result from their admission;
- Persons accompanying an excluded person who is helpless from mental or physical disability or infancy, when the protection or guardianship of such accompanying person or persons is required by the excluded person, as shall be determined by the Commissioner of Immigration;
- Children under fifteen years of age, unaccompanied by or not coming to a parent, except that any such children may be admitted in the discretion of the Commissioner of Immigration, if otherwise admissible;
- Stowaways, except that any stowaway may lie admitted in the discretion of the Commissioner of Immigration, if otherwise admissible;
- Persons coming to perform unskilled manual labor in pursuance of a promise or offer of employment, express or implied, but this provision shall not apply to persons bearing passport visas authorized by Section Twenty of this Act;
- Persons who have been excluded or deported from the Philippines, but this provision may be waived in the discretion of the Commissioner of Immigration: Provided, however, That the Commissioner of Immigration shall not exercise his discretion in favor of aliens excluded or deported on the ground of conviction for any crime involving moral turpitude or for any crime penalized under Sections Forty-Five and forty-Six of this Act or on the ground of having engaged in hoarding, black-marketing or profiteering unless such aliens have previously resided in the Philippines immediately before his exclusion or deportation for a period often years or more or are married to native Filipino women;
- Persons who have been removed from the Philippines at the expense of the Government of the Philippines, as indigent aliens, under the provisions of section forty-three of this Act, and who have not obtained the consent of the Board of Commissioners to apply for readmission; and
- Persons not properly documented for admission as may be required under the provisions of this Act.
31 6 F.2d 336 (W.D. Wash. 1925). Based on the U.S. Citizenship and Immigration Services, the United States, in April 1997 eliminated the distinction between exclusion and deportation and consolidated both under a process called Removal, (last accessed August 20, 2015).
32 Ledesma, Ronaldo. AN OUTLINE OF PHILIPPINE IMMIGRATION AND CITIZENSHIP LAWS, Rex Printing Company; Quezon City, Manila, 1999. p. 169.
33 Ledesma, Ronaldo. AN OUTLINE OF PHILIPPINE IMMIGRATION AND CITIZENSHIP LAWS, Rex Printing Company; Quezon City, Manila, 1999. p. 171.
34 PHILIPPINE IMMIGRATION ACT of 1940, Section 25 provides:
Sec. 25. Period of detention of aliens. - For the purpose of determining whether aliens arriving in the Philippines belong to any of the classes excluded by the immigration laws, the Period examining immigration officers may order such aliens detained on board the vessel bringing them or in such other place as the officers may designate, such detention to be for a sufficient length of time to enable the officers to determine whether they belong to an excluded class and their removal to such other place to be at the expense of the vessel bringing them.
35 PHILIPPINE IMMIGRATION ACT of 1940, Sections 37 provides:
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:(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of this Section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause for deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court, or judge thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported.
- Any alien who enters the Philippines after the effective date of this Act 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;cralawlawlibrary
- Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;cralawlawlibrary
- Any alien who, alter the effective date ol this Act, 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;cralawlawlibrary
- Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;cralawlawlibrary
- 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;cralawlawlibrary
- Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry;cralawlawlibrary
- Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a nonimmigrant;cralawlawlibrary
- 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 leaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, lo the dissemination of such doctrines;cralawlawlibrary
- 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 (he Commissioner may fix and approved by the Department Head;cralawlawlibrary
- Any alien who, at any time within five years alter 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;cralawlawlibrary
- Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;cralawlawlibrary
- 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;cralawlawlibrary
- Any alien who defrauds his creditor by absconding or alienating properties to prevent them from being attached or executed;
(c) 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.
(d) 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 lo a statement of the facts in connection with his arrival as shown by any record in the custody of the Bureau of Immigration.
(e) Any alien under arrest in a deportation proceeding may lie released under bond or under such other conditions as may be imposed by the Commissioner of Immigration.
36Secretary of Justice v. Koruga, supra note 26, at 419.
37 Id.
38Rollo, pp. 342-344.
39Office of the Ombudsman v. Apolonio, 683 Phil. 553, 571 (2012).
40 Id. at 571-572.
41Civil Service Commission v. Ledesma, 508 Phil. 569, 579-580 (2005).
42Pleyto v. PNP-CIDG, 563 Phil. 842, 911 (2007).
43 OMB Records, p. 6.