MOTION TO QUASH/DISMISS The CHARGE SHEET dated 27 October 2009

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE

BUREAU OF IMMIGRATION

MANILA

 

 

 

 

IN RE:   DEPORTATION CASE

AGAINST                 

 

 

D.C. NO.–MCL/LID–09–10/19–132

For :    Deportation under Sec. 37 (a) (7) of the Immigration Act

 

 

JEFFREY ALAN EVANS,

DOB: MARCH 27, 1962

American National

–         Respondent –

 

X—————————————X

 

 

 

MOTION TO QUASH/DISMISS

The CHARGE SHEET dated 27 October 2009

 

 

 

Respondent,  through counsel,  most respectfully state that:

 

 

 

  1. On 12 October 2009, the operatives of the Bureau of Immigration and elements of the Philippine National Police apprehended the herein respondents without the benefit of a warrant of arrest as required by the Constitution. His arrest was therefore could have been only based on a warrantless arrest provided by the Rules on Criminal Procedure.
  2. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on  warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

 

  1. For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[1] An close look at the hazy Joint Affidavit of Apprehension dated 12 October 2009  will reveal that none of these circumstances for a warrantless arrest were present at the time of the arrest of respondent.

 

  1. The respondent was informed that there was a Mission Order signed by Franklin Z. Littaua, the Executive Director and Chairman of the Regionalization Program directing Mr. Maclin D. Lanto, Immigration Area Director, IAO-X, Basher Pagriungan, Rashid Rangiris and Camid Musor to “validate the admission status, immigration documents, existence and sufficiency of investment in the country (for investor’s/retire’ss/13-quota visa holder), and activities of foreign subject national and, if found to be in violation of Philippine Immigration Law, bring him to the Bureau for further disposition.”

 

  1. By virtue of said Mission Order, herein respondent was deprived of his precious liberty and was detained in the Regional Office of the Bureau of Immigration in Davao City.

 

  1. The 1986 Philippine Constitution requires that prior to any detention and arrest, the person who stands to be arrested and detained must be given the opportunity to be heard. This requirement has two-fold aspect, substantive and procedural. The relevant portion of the provision of the Constitution is quoted as follows:

“ARTICLE III

BILL OF RIGHTS

 

Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be deprived the equal protection of the laws.”

 

 

 

  1. This was not observed in the case of herein respondents.

 

  1. The person who signed the Mission Order which caused the arrest and detention of the respondent for more than two weeks (2) was the Executive Director and Chairman of the Regionalization Program of Iligan City. According to Executive Order No. 287 issued on 04 September 2000 by President Joseph Estrada. Quoted is the pertinent provision of the said EO:

SECTION 1. Authority to Issue Mission Orders for Verification and Investigation of Suspected Illegal Aliens .–  Upon a well-founded and reasonable determination by the Commission of Immigration, based on available and verified civilian, immigration, or military intelligence reports, that an alien has committed, is actually committing or is about to about to commit an act of omission in violation of immigration laws, rules and regulations, or in violation of Philippine laws, rules and regulations, which may constitute grounds for deportation, the Commissioner of Immigration or in his absence, the Acting Commissioner of Immigration is hereby authorized, in the interest of national security, public safety and/or national interests, to issue a mission order directing appropriate officers of the Bureau of Immigration, whether organic or on detail, to conduct verification and investigation operations against the alien or aliens concerned, and if probable cause exists, to effect a warrantless arrest of such alien or aliens in accordance with Section 5, Rule 113 of the Rules of Court, if found in flagrante violating Philippine Immigration laws. (Emphasis supplied).

 

 

 

  1. Therefore. Mr. Franklin Z. Littaua  is not the authorized  person who must sign the Mission Order. Hence, the Mission Order was invalid for not being signed by the proper authority and if would follow that any arrest or investigation deriving its origin the invalid Mission Order is likewise invalid. An illegal act cannot produce a legal consequence.

 

  1. 10.       On 04 November 2009, counsel for herein respondent obtained a copy of the Charge Sheet against the respondent. Respondent maintains that the said Charge Sheet is not valid since the proper procedure was also not strictly observed. This is because issuance of the Charge Sheet was done without giving the respondent the reasonable opportunity to be heard as the Special Prosecutor was not able to conduct a preliminary investigation.

 

  1. Thus, with the procedural and substantive aspects of the due process requirement being disregarded by the operatives and officials of the Bureau of Immigration, they cannot perform a valid arrest, detention and institution of  deportation proceedings against the respondent.

 

 

  1. The Charge Sheet, in summary, charges him of the following:

 

  1. Respondent was apprehended around 12:30 P.M. “while having routing (sic) check  of Bangkok Restaurant which he owned, managed and operates (sic) at Iligan City.
  2. He is the owner and engaged in business of Internet Marketing Outsourcing named Team Bin Corporation in Iligan City.
  3. Records of Stenographic notes that he is president and managing director of Team Sir Jeff in Iligan City.

 

 

13.       The charges are vague.  The Charge Sheet did not include nor even mention the evidence or proof to substantiate the claims made by the arresting officers. There was no clarity as to the exact activity that respondent was doing at the time of his arrest.  The phrase “while having routing (sic) check (Probably routine check)  is vague and does not constitute a violation of any immigration law, rule or regulation.  What is a “routine check”?  The charges  failed to describe or particularize the offense attempted to be charged with sufficient definiteness, certainty or specificity to inform the defendants of the nature and causes of the accusations or to enable him to prepare his defense.

 

  1. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. “ [2]

 

15.       The charges are bereft of evidentiary support.  It is a mere presumption on the part of the arresting officers to make arrive at the conclusion that respondent owned Bangkok Restaurant without any proof whatsoever .  The said restaurant is owned by a certain Mylen J. Monte as proven by a Certification dated 03 September 2009, a record which on file with the Bureau of Immigration. It is said is the Certification that  on 31 August 2009  respondent  Jeffrey Evans “entered Bangkok Nights Resto-Bar premises without her permission and allegedly violated the Temporary Protection Order (TPO) of Civil Case Number 11-7172…”[3]  Now, if respondent is the owner of said Bangkok restaurant, then why would he need the permission of Mylen J. Monte to enter the said premises? This certification on file with the Bureau is the best evidence as to who is the real owner of  said Bangkok Restaurant!

 

  1. There was no preliminary investigation that was conducted!  The records will readily show that respondent was not even required to file his counter-affidavit or answer the charges against him. Under the Rules of Court, which is suppletory to all kinds of proceedings, it is a minimum requirement in a preliminary investigation to have the complaint accompanied by affidavit/s and supporting documents to establish probable cause. [4]

 

  1. At the time herein respondent was arrested and detained, he has a pending application for Special Visa for Employment Generation (SVEG) with the Bureau of Immigration. One of the essential requirements that the applicant must comply in order that his application may be granted is that the enterprise or assets of the foreign national, applying for the said Visa must actually provide employment to at least ten (10) Filipinos in accordance with the provisions of the labor code and other special laws. This requirement is found under Sec. 2 par. D of Executive Order No. 758.

 

  1. If ever that respondent was engaged in a trade or profession, his trade or business engagement is only in compliance to the condition and requirement laid by the law and hence does not constitute an actionable offense, warranting the immediate arrest and incarceration of the respondent.

 

PRAYER

 

 

IN VIEW THEREOF, it must respectfully prayed that the Charge Sheet against the respondent be quashed and the deportation proceedings be invalidated.

 05 November 2009, Quezon City.

 

 

 

AGUILAR SALVADOR & TRIA LAW OFFICES

Counsel for the Respondent

Room 210 Heart of the City Condominium

No. 40 Sgt. Esguerra Ave.,

South Triangle 1103 Quezon City

Tel. Nos.: 924-2299 / 928-8989

E-mail Address: lca@aguilarassociates.com

 

 

By:

 

 

Atty. Leonardo C. Aguilar Jr.

Roll of Attorneys’ No. 32825

PTR No. 1195158/07-JAN-09/QC

IBP No. 751741/O8-JAN-09/BUL

MCLE Comp. No. 11 – 0016855

 

 

 

 

 

 

 

Copy furnished:

 

Maclin D. Lanto

Rashid Ragiris

Basher Pagariungan

Camid Musor

Centro Mariano Building

2bd Floor Room 205

Osmena Street, Cagayan de Oro City

 

 

NOTICE OF H EARING

 

To: Legal and Investigation Division

 

Greetings:

 

            Please take notice that petitioner is submitting the foregoing motion for approval of this Honorable Office immediately upon receipt thereof.

 

 

                                                                                    Leonardo C. Aguilar

 

 

 


[1] People vs. Laguio Jr. G.R. No. 128587 March 16,2007

 

[2] Serapio v. Sandiganbayan (Third Division), 444 Phil. 499, 522 (2003).

[3] Annex “1”

[4] Rules of Court, Rule 112,Section 3

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