Return Of Writ

This is the Return Of Writ filed by the Bureau of Immigration on December 2, 2009. I have marked up the false statements. Considering I was illegally arrested on 12 October 2009, that they completed their charge sheet on 27 October 2009 and I was notified of the charge sheet on 4 November 2009, and a judge granted them time to respond on 22 October 2009 and no fewer than 13 Lawyers for the government put their names on it – I have to ask the question: Is this the best they could do?

My apologies for any formatting changes and maybe a misspelled word or two. This document was provided in hard copy. It had to be scanned in, run through an OCR, corrected then posted. As of this writing my lawyers are reviewing my response. The preliminary response can be found here.

REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
ELEVENTH JUDICIAL REGION
BRANCH 14
DAVAO CITY

JEFFREY ALANS EVANS, herein represented by his counsel ATTY. REY EDUARDO T. DELOS REYES,

Petitioner,

– versus –                              Sp. Proc. Case No. 10508-09

THE BUREAU OF IMMIGRATION, HON. MARCELINO C. LIBANAN, BI COMMISSIONER, FRANKLIN Z. LITTAUA, Chairman, Regionalization Program, ATTY. FAIZAL V. HUSSEIN, MACLIN D. LANTO, REGIONAL Director, IAO X, ATTY. CHRIS VILLALOBOS, SVEG, Over-all Coordinator, and/or ROWENA

REGALADO,         Immigration          Area
Director, Area 9, Davao City.

Respondents.

x————————————- x

RETURN OF THE WRIT

RESPONDENTS, by counsel, to this Honorable Court, respectfully state:

  1. Petitioner prays for his immediate release and discharge

from confinement at the Detention Center of respondent Bureau of Immigration ‘s Davao District Office at J.P. Laurel Ave., Bajada, Davao City. However, said prayer cannot be granted in the present petition for habeas corpus.

  1. Evans vs. BI                                                                                                                 2

Sp. Proc. Case No. 10508-09

Return of the Writ

2.        It must be borne in mind that a writ of habeas corpus under Section 1; Rule 102 of the Revised Rules of Court extends “to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.” The function of the special proceeding of habeas corpus is to inquire into the Legality of one’s detention (Ilagan vs. Enrile, 139 SCRA 349 [1985]) or to determine whether the confinement or detention is valid or lawful (Tung Chin Hui vs. Rodriguez, 350 SCRA 31 [2001], citing Sombong vs. Court of Appeals, 252 SCRA 663 [1996]). If it is, the writ cannot be issued. More specifically, its vital purposes are to obtain immediate relief from illegal confinement to liberate those who may be imprisoned without sufficient cause and to deliver them from unlawful custody (Herrera, Remedial Law, Vol.                    1996 ed., p.300).

  1. Measured by the foregoing legal yardstick, the instant
    petition fails to show that petitioner was unlawfully restrained of his liberty. In the instant case, there is a valid ground for the arrest and detention of petitioner. His violation of the immigration laws makes him an undesirable alien, thus, warrants the dismissal of this, case. {Except that there is no proof of any law broken}
  2. It is worthy to stress that herein petitioner is a tourist or a
    visiting alien in the country. He is only holding a tourist visa and his stay in the Philippines is subject to the provisions of E.O. 408. As such, he can not engage in any business in the country, unless permitted-to do so under certain conditions and requirements of appropriate laws. However, petitioner, without the necessary permit to engage in business in the Philippines and in violation of his tourist status, illegally put up a business, {This is a false statement}recruited and hired employees for his Internet Marketing Outsourcing System known as Team Sir Jeff in Iligan City.

Evans vs. BI

Sp.,Proc. Case No. 10508-09

Return of the Writ

 

3

 

  1. A copy of said Memo-Report is hereto
    attached as Annex “1”, for easy reference.
  2. Acting on said Memo-Report, respondent Maclin D. Lanto
    sent on October 8, 2009, a Memorandum to respondent Commissioner Libanan requesting for the Issuance of a Mission Order against herein petitioner, a copy of said is hereto attached as Annex “2”. Finding merit in the request, respondent Franklin Z. Littaua, Executive Director and Chairman of the Regionalization Program of the Bureau of Immigration (BI), issued, on the same day, Mission Order No. MCL/A­X-09-0002 recommending that petitioner be subjected to deportation proceedings and to place him under the Immigration Blacklist. {This is a lie. Read the mission order}A copy of said Mission Order is hereto attached as Annex “3”, for easy reference.
  3. On the basis of the Mission Order, petitioner was arrested {This is false because the mission order was not followed.}
    by the BI operatives on October 12, 2009. The apprehending officers of BI likewise executed a Joint Affidavit of Apprehension attesting to the arrest of petitioner, an implementation of the Mission Order. A copy of said Joint Affidavit is hereto attached as Annex “4”. Thereafter, an. After-Mission Report was submitted to inform the

 

 

  1. Evens vs. BI                                                                                        4

Sp. Proc. Case No. 10508-09

Return of the Writ

x—————————- x

Bureau of the incident, a copy of said After-Mission Report is hereto attached as Annex “5”.

8.          On October 12, 2009, respondent Maclin D. Lanto
requested to respondent Rowena Regalado, Immigration Area Director, Area 9, Davao City, to detain and take custody                                                of petitioner
considering that the Bureau’s Area 10 ( Regions 10 and 13) in Cagayan de Oro City has no detention facility for erring aliens. Consequently, petitioner was detained and placed under the custody of the Davao City Immigration Office, per Commitment Order dated October 12, 2009. Copies of said request for transfer and Commitment Order are hereto attached as Annexes “6” and “7”.

9.          The matter of petitioner’s arrest was subsequently referred
to the Legal Investigation Division of the 131 for investigation on his acts of violation of immigration laws. Accordingly, on October 27, 2009, petitioner was charged with violation of Section 37 (a) (7) of the Philippine Immigration Act of 1940, as amended, and is now facing a deportation case with the Bureau of Immigration entitled “In Re: Deportation Case Against Jeffrey Alan Evans, DOB: March 27, 1962, American national, Respondent, docketed as D.C. No.- MCL-LID10/19-132.” The accusation against petitioner Jeffrey Alans Evans is contained in the Charge Sheet, a copy of which is hereto attached as Annex “8”.

  1. Indeed, with the foregoing facts, it can be concluded that  there is a valid ground to arrest and detain petitioner {This is with no crime and no real investigation by the BI}and to ultimately institute deportation proceedings against him. His apprehension is in accord with Section 37 (a) (7) of the Philippine Immigration Act, as amended, which provides that an alien who remains in the Philippines may be deported for violation of any limitation or condition under which he was admitted.
    1. Evans vs. BI                                                                                        5

Sp. Proc. Case No. 10508-09

Return of the Writ

x ——————– x

  1. It is settled that the right of the State to admit aliens includes its right to expel them. This power of the State is an absolute attribute of its sovereignty and is essential to its self-preservation (RP. Ledesma, Outline of Philippine Immigration and Citizenship Laws, Vol.1 2006 Ed., p.284). As such, it can order deportation of aliens and forbid their stay in the country for violation of immigration laws when their presence has become undesirable so as to injure its security, safety and peace. The State has a right to shield itself from objectionable aliens, like herein petitioner.
  2. However, petitioner assails his arrest and detention. He admits that he is an incorporator and the Corporate President of Team Sir Jeff, an Internet Marketing Outsourcing Services, but argues that “the organization and incorporation of such corporation is a prerequisite to the application for Special Visa for Employment Generation (SVEG)” (petition, p.2).
  3. Petitioner’s argument is implausible. He tries to convince this Honorable Court that he can operate a business despite his tourist visa. But, he can not succeed in doing so. Records show that the Articles of Incorporation and By-laws of his business Team Sir Jeff Corp. were approved by the Securities and Exchange Commission (SEC) of the Cagayan de Oro Extension Office on June 17, 2009 (Annex “B” of the petition). He wrote a letter-request to the Bureau for Special Visa for Employment Generation (SVEG) on July 16, 2009 (Annex “E” of the petition). However, said request for SVEG was disapproved by the Bureau on September 30, 2009 {This is another lie. Read the letter. The application is being held in abeyance}, thus:
    1. Evans vs. BI                                                                                                               6

Sp. Proc. Case No. 10508-09

Return of the Writ

30 September 2009

MR. JEFFREY ALAN EVANS

26 Oxford Street, No. 4 Celdran Village Tubod, Iligan City

Dear Mr. Evans,

We acknowledge receipt of your application for Special Visa for Employment Generation under Executive Order No. 758.

In as much as we want to process your application, we inform you that Mr. Harold Pacasum, have instituted a complaint against you for undesirability and for working without permit. Right now, we are holding in abeyance the processing of your application for SVEG until such time that we have validate the imouted allegation that you are in breach of the condition of your stay as nonimmigrant under Section 37 (a) (7) of CA 613, as amended.

Rest assured that once you are cleared of these charges, we will start processing your application.

We hope that we have enlightened you on this matter.

ATTY. ROY M. ALMORO Commissioner-in-Charge SVEG-One Stop Shop

A copy of said letter is hereto attached as Annex “9.”

Indeed, the disapproval of petitioner’s application for SVEG disqualifies him to operate a business in the Philippines.

14. To disapprove the report of the Bureau of Immigration, petitioner now {This statement is intentionally misleading. I have never claimed ownership of these properties. I have claimed ownership of the contents. This is due to an unpaid loan.}disowns the Internet cafe and the resto-bar, Bangkok Nights, asserting that said businesses are owned and operated by Mylen Monte. Records however show that the internet cafe “Games and Chat Zone Area II” was registered with the Bureau of Internal Revenue (BIR) on October 26, 2006 while Bangkok Nights Restobar was registered with BIR on October 2, 2007. Interestingly, said Mylen Monte was the former girlfriend of herein petitioner. Also, it may be noted that the registration of said establishments were made before the law on SVEG was passed in February 2009. Since the SVEG was inexistent yet, petitioner’s businesses may not have been registered under his name and were placed under the name of his girlfriend, {There is no proof to this claim. An NBI report and 6 affidavits along with my passport records and court records show different.} although he had put investment on it and owns the contents of the same, just as to circumvent the law disallowing a tourist to own business in the Philippines.

15. In fact, in a case entitled “People of the Philippines vs. Butch Moldes” filed with the Municipal Trial Court in Cities of Iligan City, Branch 2, docketed as Criminal Case No. 08-910,08-911, petitioner stood a witness, and admitted his ownership of a local business, thus:

Pros.Alonto II:

Yes, your Honor, I have Mr. Jeff Evans, private complainant. Your Honor, I would like to call to the witness stand Mr. Jeff Evans.

 

Court:                           Swear the witness.

xxx xxx xxx

Sp. Proc. Case No. 10508-09

Return of the Writ x– x

Court Interpreter: Please state your name, age, and other
personal circumstances.

A:                        Jeffrey Evans, 47 years old, divorced, a

Resident of Celdran Village, Tubod, Iligan City and the President and Managing Director of a local business:

(TSN, August 27„ 2009, p.13)

On cross-examination, he elaborated his business activities,

thus:

You stated that you are the president and managing director of a local business, what business is that?

A:         Timser(sic) Jeff

xxx xxx xxx

And you heard Mr. Zerna testified that you were his employer, is that correct?

A:      Yes.

  1. Q:      You employed Mr. Zerna in           the       same

business that you have just mentioned.

A:       Not at that time.

Q:                                                  What business was that at that time?

A:        Lyndon Zerna at one time was a manager

at Bangkok Nights.

Q:     That is the same       business that you run

together with your partner?

A:     I don’t describe it as I run together. That’s

the business that I invested and own the contents of.

{The fact that they have bolded this statement tells me they are concentrating on the word invested. Let me say that I consider making a loan for principal + interest an investment. (In the case of my ex-girlfriend, not a very good one) Banks view loans they make as investments.  And here is an article about loans as investments. Lets not play word games. There are too many jobs in the balance.}

But you allowed you girlfriend to be the one

to handle that business, is that correct?

  1. Evans vs. BI                                                                                                                9

Sp. Proc. Case No. 10508-09

Return of the Writ x

A:             Not, that would not be a correct statement

because the business            had a manager,
the manager was Lyndon Zerna.

Q:     That was why Mr. Lyndon Zerna said you

were his employer?

A:      I wasn’t his employer        the       day       that

happened         but I had previously invested in
the business where he worked, so he viewed me as his employer.

Q:        So, in other words, at that time that he

incident happened, Mr. Zerna was no longer your employee, is that

correct?

A:       That is correct.

{The person they refer to “Lyndon” has worked for Mylen and has also worked for me. The lawyers intent here was to confuse the facts. It is clearly explained in my response. We also have an affidavit showing when Lyndon worked for who. I will say here that Bangkok Nights Restobar was open for about two years. If you count the time I was out of the country and the time I was not allowed by my ex girlfriend to go into the bar, I had access to the bar for less than three months. And while Immigration thinks it is “Interesting” that Mylen Monte is an ex-girlfriend, they do not take notice of her court filings claiming ownership of everything that were filed by the same attorney who was asking the questions.}

(TSN, Ibid., pp. 115-117)

  1. Thus, taking into account the foregoing circumstances, the primary point of inquiry lies on whether or not the detention of petitioner is valid.

The answer is NO.

Prescinding from the foregoing circumstances, there were reasons to arrest and detain the petitioner and charge him for violation of immigration laws.

  1. Once a party detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued (Rodriguez vs. Bonifacio, 344 SCRA .599 [2000], citing Bernarte vs. Court of Appeals, 263 SCRA 323 [1996]). The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court, and
    1. Evans vs. BI                                                                                                                10

Sp. Proc. Case No. 10508-09

Return of the Writ

the term “court” includes quasi-judicial bodies like the Bureau of. Immigration (Rodriguez vs. Bonifacio, supra).

18.     The Supreme Court, in the above-mentioned case of Rodriguez, explained that “even granting that the arrest was initially illegal, the filing of the Charge Sheet cured whatever incipient infirmity there was in his arrest.” Indeed, it is fundamental that a writ of habeas corpus will not be granted when the confinement is or has become legal, although such confinement was illegal in the beginning (Matsura vs. Director of Prisons, 77 Phil 1050 [1947], cited in Harvey vs. Defensor-Santiago, 162 SCRA 849 [1988]).

  1. Moreover, a petition for issuance of a writ of habeas corpus cannot be resorted to when there is another remedy available (Luna vs. Plaza, 26 SCRA 310). If petitioner claims that the charges against him are untrue, he should ventilate the said claim in the deportation proceedings, initially, in the Board of Special Inquiry and, finally, in the Board of Commissioners. Ergo, petitioner should present his evidence in the deportation proceedings with the Board of Special Inquiry and espoused his defense.
  2. Since, the charge admittedly originated from the Bureau of Immigration, the relief there from or the consequential results should accordingly be addressed to and obtainable from said body, not in this Honorable Court (Roxas & Co., Inc. vs. Court of Appeals, 321 SCRA 106 [1999]). Otherwise, it would allow the petitioner to present simultaneous remedies, from this Honorable Court and the Bureau of Immigration, which would cause havoc to the rule on hierarchical order and sequence. He should not be allowed to resort to shortcuts in procedures but must follow and observe steps in securing administrative remedies.
    1. Evans vs.  BI                                                                                                                11

Sp. Proc. Case No. 10508-09

Return of the Writ

x —————- x

  1. Lastly, the instant petition should be dismissed for being moot and academic. It is worthy to stress that at present, petitioner had already been released provisionally in recognizance of his counsel, per Order of this Honorable Court dated October 22, 2009. The elements of restraint and involuntary deprivation of freedom are now imaginary.
  2. All told, as Jeffrey Alan Evans was lawfully arrested for violation of the Philippine Immigration Act of 1940, as amended, thus, the present petition for habeas corpus should be dismissed.

PRAYER

WHEREFORE, it is respectfully prayed that the present petition be DISMISSED for lack of merit.

Makati City for the City of Davao, December 1, 2009.

AGNES VST DEVANADERA
Solicitor General

Roll No.18350

IBP Lifetime Roll No. 05084-1/18/05
MCLE Exemption No. 11-000024

RENAN E. RAMOS

Assistant Solicitor General
Roll No. 33792

IBP Lifetime Roll No. 04290
MCLE Exemption No 11-000703

Sp. Proc. Case No. 10508-09

Return of the Writ x x

 

DIN

  1. Solicitor General

Roll No. 26880

IBP No 711273 – 12/30/08
MCLE Exemption No. 11-000711

 

MARISSA B. D                    RUZ-GALANDINES

Assistant Solicitor General
Roll No.37023

IBP No. 773124 – 01/09/09
MCLE Exemption No. 111-000364

BERNARD. HERNANDEZ
Assistant Solicitor General

Roll No. 34618

IBP No. 786592 – 03/18/09
MCLE Exemption No. 111-000506

 

ERIC EMEG 0 . PANGA istant Solicit r General Roll No. 39 77

IBP Lifeti e No 04291 MCLE Exemption          No. 111-000365

 

 

DANIL • . LEYVA

Senior St e Solicitor

Roll No. 40077

IBP Lifetime No 04292

MCLE Compliance o. 11-0010388

 

NELIA A. BJNDILLA-BUSTRIA
Senior State Solicitor

Roll No. 42181

IBP Lifetime Roll No. 02531 – 07/25/01
MCLE Compliance No. 111-0003756

ROLANDO B. FALLER

Senior State Solicitor

Roll No. 42144

IBP Lifetime No. 03240

MCLE Compliance No. 11-0001084

  1. Evans vs. BI                                                                                                                                                      13

Sp. Proc. Case No. 10508-09

Return of the Writ

x ————————— x

 

M.L. CARMELA P Alt INO-CAGAMPANG

State Solicitor

  1. Roll No. 7916        – 06/17/09

MCLE Compliance- No. 11-0011319

 

WALTE O . JUNIA

State Solicitor

Roll No. 40819

IBP No. 777162 – 01/22/09
MCLE Compliance No. II- 0018571

OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo St., Legaspi Village Makati City

Tel. No. 818-63-81 to 89

Copy ‘Furnished:

Atty. Rey Eduardo T. Delos Reyes Delos Reyes Law Office

Counsel for the Petitioner

2nd Floor Major Building (Grageda) 165 Bonifacio St., Davao City

Atty. Bienvenido Chy

Legal-Chief-BID

2/F Bureau of Immigration Building Magallanes Drive, Intramuros, Manila

EXPLANATION

The foregoing Return of the Writ is being filed and served by registered mail due to lack of manpower to e1 e personal filing and service.

NELIA  A. BANDILLA-BUSTRIA
Senior. State Solicitor

BGH/NABB/jsc

pr/D,Dhlr-r, of 1ho IA/rii

 

JONA

NES

itor

No. • 3918

IBP N .777164 – 01/22/09
MCLE Compliance. No. 11-0009438

 

 Mail this post

Technorati Tags: , ,


Leave a Reply