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(NAR) VOL. III NO. 3 / JULY - SEPTEMBER 1992
[ BOI MEMORANDUM ORDER NO. 04-92, July 06, 1992 ]
RULES OF PROCEDURE TO GOVERN DEPORTATION PROCEEDINGS
Pursuant to Section 3, in relation to Section 37(c), of Commonwealth Act No. 613, as amended, otherwise known as "The Philippine Immigration Act of 1940", the following rules of procedure are hereby promulgated to govern the proceedings in deportation cases:
Rule I
General Provisions
SECTION 1. Scope - These rules shall apply to all proceedings before the Board of Commissioners, the Boards of Special Inquiries and the various offices and divisions involved in the handling of deportation cases.
SECTION 2. Nature of Deportation Proceedings - Deportation proceedings are not criminal, but administrative, in character. Subject to the requirements of due process, the deportation hearing shall be conducted for the purpose of ascertaining the truth without necessarily adhering to technical rules applicable to judicial proceedings.
SECTION 3. Jurisdiction - Deportation can be initiated under of two laws: (a) Section 8, Chapter 3, Title I, Book III of the 1987 Administrative Code [E.O. No. 292]; or (b) Section 37(a) of the Philippine Immigration Act of 1940.
The Board of Commissioners shall have exclusive jurisdiction to hear and decide deportation cases filed under Section 37(a) of the Philippine Immigration Act of 1940.
Cases initiated under the Administrative Code shall be decided by the Office of the President based on the report and recommendation submitted by the Board of Commissioners.
The Board of Commissioners shall be composed of the Commissioner of Immigration, as Chairman, and the two Associate Commissioners, as Members.
Rule II
Commencement of Deportation
Proceedings
SECTION 1. Complaints - A deportation case may be initiated by complaint of a government agency or a private citizen specifying the acts or ommissions complained of which must be stated in plain and concise language to enable the alien to know on what ground he is intended to be deported and the Board of Commissioners to pronounce a proper judgment.
All complaints shall be filed with the Office of the Commissioner.
SECTION 2. Form of Complaints - Generally, complaints shall be under oath, otherwise they will not be entertained. In the latter, case, the complainants may be advised to put their complaints under oath.
Complaints filed by government agencies in the regular discharge of their functions, as distinguished from mere referrals, need not be under oath. Referrals, however, shall be the subject of verification or case build-up by the Intelligence Division.
SECTION 3. Sufficiency of Complaints - A complaint for deportation is sufficient if it states the name of the alien, the acts or omissions, complained of, the name of the complainant, the approximate time of the commission of the offense, and the place wherein the offense was committed.
Complaints containing charges which are hearsay or mere generalities, or which are vague, and those filed solely for the purpose of facilitating the collection of money, including claims for support, shall not be entertained.
SECTION 4. Anonymous Complaints - Anonymous complaints including those where the address of the complainant is unknown and cannot be determined shall not be entertained. However, where the charge is serious and can be easily verified, the same shall be referred to the Intelligence Division for verification and/or case build-up by the Commissioner.
SECTION 5. Action On Complaints - All complaints received by the Office of the Commissioner shall be referred to the Chief of the Legal Division for determination of their sufficiency. All complaints found to be sufficient in form and substance shall be raffled for assignment to the Special Prosecutors by the Chief of the Legal Division before the end of the day when such complaints were received. All complaints which are found to be deficient, including anonymous complaints, shall be recommended by the Chief of the Legal Division to the Commissioner either for outright dismissal or for referral to the Intelligence Division for verification or case build-up. The Chief of the Legal Division may advise a private party to put his complaint under oath when it is otherwise sufficient in substance.
SECTION 6. Withdrawal of Complaint - The withdrawal of the complaint does not necessarily discharge the alien from deportation. When there is obvious truth or merit to the complaint, the same shall be given due course in accordance with these Rules notwithstanding the withdrawal of the complaint and/or desistance of the complainant.
Rule III
Preliminary Investigation
SECTION 1. Notice to show cause - Upon receipt of a complaint, the Special Prosecutor to whom the case was assigned shall immediately issue a notice directing the alien to appear before him on the date and time specified therein which shall not be more than ten (10) days from the date of the notice, to answer the charges and show cause why he should not be deported. A copy of the complaint shall be attached to the notice. The complainant shall also be notified of the scheduled hearing.
SECTION 2. Determination of prima facie case - Within ten (10) days from the date of the hearing, the Special Prosecutor shall determine whether a prima facie case exists against the alien based on the submissions of the alien, the complaint and other evidence on record. If he finds a prima facie case, he shall immediately prepare a charge sheet which must be filed with the Board of Special Inquiry before the end of the aforesaid ten-day period.
SECTION 3. Failure to Appear - If the alien fails to appear at the hearing despite notice duly served at the address given in the complaint or appearing in the Bureau’s records, or if he refuses to accept the notice, the Special Prosecutor shall determine whether on the basis of the complaint and evidence before him, a prima facie case exists against the alien and, if so, he shall file the corresponding charge sheet with the Board of Special Inquiry and recommend to the Commissioner the issuance of a mission order to secure the appearance of the alien before the Board of Special Inquiry.
If a prima facie case cannot be established from the available records, the Special Prosecutor may recommend to the Commissioner the referral of the case to the Intelligence Division for verification or case build-up.
SECTION 4. Complaint Based on Conviction - A complaint based on a final judgment of conviction for a crime shall be summarily disposed of, without need of preliminary investigation. The Special Prosecutor shall determine whether the crime committed involves moral turpitude or a violation of the law governing prohibited drugs, the Philippine Alien Registration Act of 1941, or the Revised Naturalization Laws of the Philippines and related laws. If it does, he shall forthwith institute deportation charges against the alien; otherwise, he shall recommend to the Commissioner the dismissal of the complaint and/or the alien’s immediate release.
Rule IV
Custodial Investigation
SECTION 1. When conducted - In all cases of arrests made pursuant to a mission order issued after determination of probable cause by the Commissioner of Immigration in accordance with Rule VI hereof, the arresting officer shall bring the arrested alien to the Special Prosecutor for custodial investigation. If the arrest is made after office hours and there is no Special Prosecutor who will conduct the custodial interrogation, the arrested alien shall remain under the custody of the Intelligence Division until the custodial interrogation is made at the next working day.
SECTION 2. Filing of Charge Sheet - Immediately after the custodial investigation, the Special Prosecutor shall determine whether a prima facie case exists against the alien. If there is a prima facie case, he shall file the corresponding charge sheet with the Board of Special Inquiry. If there is none, he shall recommend to the Commissioner the alien’s immediate release. The Special Prosecutor must act on the case within two (2) days from the date of the custodial investigation.
Rule V
The Charge Sheet
SECTION 1. Charge Sheet: Accusation in Writing - A charge sheet is an accusation in writing charging an alien with an offense prepared and subscribed by the Special Prosecutor and filed with the Board of Special Inquiry.
SECTION 2. Form of Charge Sheet - The charge sheet shall be written in clear, simple and concise language and in a systematic manner as to apprise the alien respondent of the nature of the charge against him and to enable him to prepare for his defense.
SECTION 3. Sufficiency of the Charge Sheet - The charge sheet is sufficient if it states the name of the alien complained of, the designation of the offense, the acts or omissions constituting the offense, the approximate time of the commission of the offense, and the place where the offense was committed.
Where an offense was committed by more than one person, all of them shall be included in the charge sheet. If the name cannot be determined, he must be described under a fictitious name with the statement that his true name is unknown.
Rule VI
Mission Order and Search Warrant
SECTION 1. Warrantless Arrest - The Commissioner may issue a mission order which authorizes the warrantless arrest of the suspected alien pursuant to the 1985 Rules on Criminal Procedure, Rule 113, Sections 5, 8, 11 and 13. The mission order shall be valid for ten (10) days from date of issue.
SECTION 2. When Mission Order May Issue - A mission order Against a particular alien may be issued upon request of the Special Prosecutor upon failure of the alien to appear after notice or his refusal to accept the notice, and there is reasonable ground to believe that the alien may be guilty of the offense charged. The Chief of the Intelligence Division may likewise request for the issuance of a mission order if, based on surveillance reports, he believes that an alien may be guilty of an offense. A mission order shall be enforced by the members of the Intelligence Division.
SECTION 3. Search Warrant - Whenever necessary, and upon the recommendation of the Special Prosecutor or the Chief of the Intelligence Division, the Commissioner may secure a search warrant from the court under Rule 126 of the same Rules on Criminal Procedure. The search shall be conducted pursuant to Section 6, 7, 10 and 11 thereof. A warrantless search may be made if it is incidental to a lawful arrest.
SECTION 4. Duties of the Arresting Officer - The arresting officer shall carry out the mission order without delay and with due regard to the human rights of the alien to be arrested.
The arresting officer shall advise the alien of (1) the reason for the arrest; (2) the alien’s right to counsel; (3) the alien’s right to remain silent.
The arresting officer shall bring the alien to the Intelligence Division for record and fingerprint check, which shall include a telephone call to the alien’s consulate or embassy. The arresting officer shall inform the consul of the alien’s arrest and request the consulate to make a records check of the alien.
On the day of the arrest, the arresting officer shall execute an affidavit of arrest and prepare a post operation report. He shall make a file consisting of the affidavit of arrest, post operation report, and the evidence seized, if any, and all other pertinent documents. He shall submit to the Office of the Commissioner a copy of the post operation report.
The arresting officer shall bring the alien to the Special Prosecutor for custodial investigation, provided that where the cause for the arrest was the alien’s failure to appear or refusal to accept the show-cause notice as provided for in Rule III, Section 3 hereof, the alien shall not be turned over for custodial investigation but shall be detained for purposes of the hearing before the Board of Special Inquiry.
RULE VII
Bail
SECTION 1. Bail Not a Matter of Right - Aliens, in deportation proceedings, have no inherent right to bail. The release on bail of arrested aliens shall be discretionary with the Commissioner of Immigration who shall have the power to exact cash bonds in Such amounts and under such conditions as he may prescribe to insure the appearance of aliens released from custody during the course of the deportation proceedings. No bail shall be allowed if there is already a deportation order by the Board of Commissioners, or when the evidence of guilt is strong and the probability of the alien jumping bail is high.
SECTION 2. Application for Bail - After the filing of a charge sheet, an application for release on bail may be fined by the alien personally with the Special Prosecutor assigned to the case. The Special Prosecutor shall evaluate the application in accordance with the immediately preceding section and submit his recommendation to the Commissioner of Immigration who shall either approve or deny the application.
SECTION 3. Conditions of Bail - All kinds of bail are subject to the following conditions:
a. the undertaking shall be in force at al stages of the proceedings until its final determination;
b. the alien shall appear before the Board of Commissioners whenever so required;
c. the failure of the alien to appear at any hearing without justification shall be deemed an express waiver of his right to be present and the hearing shall proceed in absentia;
d. the alien shall surrender himself for execution of the final order of deportation;
e. the bond shall answer for all expenses incident to the arrest and apprehension of the alien should the latter fail to appear before the immigration authorities, and for all other expenses incurred in connection with the deportation, exclusion and departure of the alien.
SECTION 4. Forfeiture of Bail and Re-arrest of Alien - In case of failure to comply with the conditions of the bail, the same shall be forfeited and the cash deposits shall be turned over to the National Treasury.
The alien released on bail who fails to comply with the conditions of the bail or attempts to escape justice may be re-arrested without the necessity of a warrant for his arrest.
SECTION 5. Cancellation of Bail - The bail shall be cancelled when its conditions are fulfilled, or upon the death of the alien, or upon the departure of the alien pursuant to an order of deportation, or his acquittal in the deportation case.
Rule VIII
Release of Alien
SECTION 1. When Alien May Be Released - An alien may be released if there is no prima facie case against him or if the alien applied for bail and the same was granted and the bail was filed and approved by the Commissioner.
SECTION 2. Order of Release - No alien shall be released except upon written order of the Commissioner.
Rule IX
Deportation Hearing
SECTION 1. Commencement of Proceeding - The deportation proceeding shall commence with the issuance by the Board of Special Inquiry of a subpoena and service thereof on the alien respondent and the complainant. The parties shall be notified of the date of the hearing which shall not be more than fifteen (15) days from the date of filing of the charge sheet with the Board. The parties shall be directed to present their witnesses and such additional evidence as they may have in their favor at the hearing.
SECTION 2. Rights of the Alien - At the scheduled hearing, the alien shall be informed of the charges against him. He shall be asked whether he admits or denies the allegations in the charge sheet.
In the course of the hearing, the alien shall have the right to be presumed innocent, to be present and be defended by counsel of his choice, to have compulsory process for the attendance of witnesses and production of evidence in his behalf, to confront and cross-examine the witnesses against him and to have a speedy, impartial and public trial.
The alien may be compelled to testify unless his alleged action constitutes a crime.
SECTION 3. Waiver of Presence - If any alien has been given reasonable opportunity to be present at a proceeding and without reasonable cause fails or refuses to attend or to remain in attendance at such proceeding, the Board may proceed to a determination in like manner as if the alien were present.
SECTION 4. Motion to Quash - At any time before entering his plea, the alien may move to quash the charges of deportation against him on any of the following grounds:
a. the Board has no jurisdiction over the offense charged or the person of the respondent;
b. the ground for deportation has been extinguished;
c. the facts stated in the charge sheet do not constitute a violation of immigration laws, rules or regulations;
d. the alien has been acquitted of the same charge.
If the motion to quash is denied, the alien shall enter his plea. If the motion is granted, the Board may either recommend the dismissal of the case or order the filing of an amended charge sheet, as the case may be.
SECTION 5. Admission of Charges - If the alien admits the allegations and concedes deportability, the Board shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the admission and forthwith submit his recommendation to the Board of Commissioners.
SECTION 6. Calendar of Cases - The Board shall calendar cases on a first-come, first-served basis. The case shall be calendared for four (4) consecutive hearings as far as practicable and shall be heard continuously until terminated. The hearing of the case shall be terminated within thirty (30) calendar days from the first scheduled hearing.
SECTION 7. Stipulation of Facts and Judgment on the Pleadings - To abbreviate the proceedings, the parties may, on the first scheduled hearing, be persuaded to enter into a stipulation of facts. After entering into a stipulation of facts and the issues shall have been determined, the parties may agree to submit the case for resolution based on the pleadings, stipulation of facts and their respective memoranda which they shall submit simultaneously within fifteen (15) days from the date of the first scheduled hearing. The Board of Special Inquiry shall make its findings and submit its recommendation to the Board of Commissioners within fifteen (15) days from submission of the memoranda.
SECTION 8. Conduct of the Proceedings - The deportation hearing shall be conducted with solemnity and the members of the Board of Special Inquiry shall comport themselves with the dignity and impartiality befitting their position as trier of facts.
The order of hearing shall be as follows:
a The prosecution shall present evidence to prove the charges;
b. The alien may present evidence to prove his defense;
c. Cross-examination by either parties, when proper and allowed by the Board;
d. Upon admission of the evidence, the case shall be deemed submitted for decision unless the Board directs the parties to submit memoranda, in which event, the case shall be deemed submitted for resolution upon submission of such memoranda. As a rule, both parties shall be entitled to present only two witnesses each, under examination in chief. Counsel shall conduct only direct and cross examination of the witness. They shall not conduct re-direct or re-cross examination. There will be no rebuttal or sur-rebuttal examination.
When after the Special Prosecutor has rested his case, the alien files a Demurrer to Evidence to dismiss the case on the ground of insufficiency of evidence, he is deemed to have waived the right to present evidence and to have submitted the case for decision on the basis of the evidence for the prosecution.
When it becomes manifest at any time before judgment, that a mistake has been made in charging the alien, and he cannot be deported based on the charge, the case shall be remanded to the Special Prosecutor for filing of the appropriate charge.
All proceedings before the Board of Special Inquiry shall be reduced in writing.
SECTION 9. Quantum of Evidence - In cases filed with the Bureau of Immigration, a fact may be deemed established if it is supported by substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
SECTION 10. Suspension of Proceedings - When the act committed by the alien constitutes a crime, the Board shall direct the Special Prosecutor to file the case in the proper Fiscal’s Office for prosecution, unless it has already been filed therewith or is actually pending in court. In both cases, the proceedings may be held in abeyance pending the outcome of the criminal case, unless the same act also constitutes a violation of immigration laws, in which case, the deportation proceedings may proceed independently of the criminal case.
Rule X
Summary Deportation
SECTION 1. Grounds for Summary Deportation - Summary deportation shall be observed in cases where the charge against the alien is overstaying or expiration of his passport. In such cases, the Board of Special Inquiry shall merely require the presentation of the alien’s valid passport and shall submit the appropriate recommendation on the basis thereof.
SECTION 2. Hearing and Judgment - Cases covered by the summary procedure must be heard and judgment rendered thereon by the Board of Commissioners within two (2) weeks from the time of filing of the charges with the Board of Special Inquiry.
Rule XI
Self-Deportation
SECTION 1 .Offer of self-deportation - An offer of self-deportation by the alien shall be granted provided there is no pending case in court against him. Self-deportation shall not be allowed as a means of evading criminal prosecution or civil liability.
The offer of self-deportation shall be approved by the Commissioner upon the favorable recommendation of the Special Prosecutor, the Chief of the Intelligence Division or the Board of Special Inquiry, as the case may be.
SECTION 2. Effect of Self-Deportation - Self-deportation shall bar the alien concerned from re-entry into the country. An application for voluntary deportation shall be treated as an offer of self-deportation and shall be acted upon accordingly.
Rule XII
Recommendation of Board of
Special Inquiry and File
SECTION 1. Action of Board of Special Inquiry - Each Board of Special Inquiry shall submit its recommendation to the Board of Commissioners, signed by all three members, on every case heard by it as a body, within fifteen (15) days from the conclusion of the deportation hearing. The recommendation, which shall be attached to the records of the case, shall contain a brief summary of the findings of facts and the Board’s recommendation on the case.
SECTION 2. Official File - Each Board of Special Inquiry shall keep a chronological file of all recommendations submitted to the Board of Commissioners.
Rule XIII
Decision
SECTION 1.Period to Decide Case - The Board of Commissioners shall, as a body, meet and deliberate on the recommendation and render a decision within fifteen (15) days from the transmittal of the records of the case together with the recommendation of the Board of Special Inquiry.
SECTION 2. Contents of Decision - The decision shall contain a statement of the charge, the name of the alien respondent and a brief statement of the material facts, findings and decision reached.
SECTION 3.Promulgation of Decision; Finality - The decision of the Board shall be returned to the Board of Special Inquiry for promulgation. Service of a copy of the decision at the last known or given address of the respondent or at the office of his counsel shall be deemed promulgation. The decision shall become final and executory after thirty (30) days from promulgation, unless within such period, the President shall order the contrary.
SECTION 4. Execution of Deportation Order - The Commissioner of Immigration shall issue a warrant of deportation to carry out a final order of deportation. The Intelligence Division shall execute the warrant of deportation and shall make a return to the Commissioner within ten (10) days from date of issuance of the warrant. If the warrant of deportation is unserved, the Intelligence Division shall submit a weekly status report until the said warrant is served and the deportation order is carried out.
Rule XIV
Costs of Deportation
SECTION 1. Cost of Transportation from Port of Deportation - The expense of travel from the port of deportation shall be borne by the owner or owners of the vessels by which the alien came if deportation proceedings are instituted within five (5) years after entry; otherwise, it shall be payable from funds of the Bureau of Immigration available for the purpose.
SECTION 2. Other Costs - Costs incurred in the course of the deportation proceedings shall be chargeable against the bond, if any, filed by the alien deportee.
Rule XV
Repealing Clause
All laws instructions, administrative orders, memorandum orders, rules and regulations, or parts thereof which are inconsistent with these Rules of Procedure are hereby repealed or modified accordingly.
Rule XVI
Effectivity
These Rules of Procedure shall be subject to the approval of the Secretary of Justice.
Upon such approval, the Rules shall be published in a newspaper of general circulation and shall take effect after fifteen (15) days from the date of publication.
Adopted: April 1992
General Provisions
SECTION 1. Scope - These rules shall apply to all proceedings before the Board of Commissioners, the Boards of Special Inquiries and the various offices and divisions involved in the handling of deportation cases.
SECTION 2. Nature of Deportation Proceedings - Deportation proceedings are not criminal, but administrative, in character. Subject to the requirements of due process, the deportation hearing shall be conducted for the purpose of ascertaining the truth without necessarily adhering to technical rules applicable to judicial proceedings.
SECTION 3. Jurisdiction - Deportation can be initiated under of two laws: (a) Section 8, Chapter 3, Title I, Book III of the 1987 Administrative Code [E.O. No. 292]; or (b) Section 37(a) of the Philippine Immigration Act of 1940.
The Board of Commissioners shall have exclusive jurisdiction to hear and decide deportation cases filed under Section 37(a) of the Philippine Immigration Act of 1940.
Cases initiated under the Administrative Code shall be decided by the Office of the President based on the report and recommendation submitted by the Board of Commissioners.
The Board of Commissioners shall be composed of the Commissioner of Immigration, as Chairman, and the two Associate Commissioners, as Members.
Commencement of Deportation
Proceedings
SECTION 1. Complaints - A deportation case may be initiated by complaint of a government agency or a private citizen specifying the acts or ommissions complained of which must be stated in plain and concise language to enable the alien to know on what ground he is intended to be deported and the Board of Commissioners to pronounce a proper judgment.
All complaints shall be filed with the Office of the Commissioner.
SECTION 2. Form of Complaints - Generally, complaints shall be under oath, otherwise they will not be entertained. In the latter, case, the complainants may be advised to put their complaints under oath.
Complaints filed by government agencies in the regular discharge of their functions, as distinguished from mere referrals, need not be under oath. Referrals, however, shall be the subject of verification or case build-up by the Intelligence Division.
SECTION 3. Sufficiency of Complaints - A complaint for deportation is sufficient if it states the name of the alien, the acts or omissions, complained of, the name of the complainant, the approximate time of the commission of the offense, and the place wherein the offense was committed.
Complaints containing charges which are hearsay or mere generalities, or which are vague, and those filed solely for the purpose of facilitating the collection of money, including claims for support, shall not be entertained.
SECTION 4. Anonymous Complaints - Anonymous complaints including those where the address of the complainant is unknown and cannot be determined shall not be entertained. However, where the charge is serious and can be easily verified, the same shall be referred to the Intelligence Division for verification and/or case build-up by the Commissioner.
SECTION 5. Action On Complaints - All complaints received by the Office of the Commissioner shall be referred to the Chief of the Legal Division for determination of their sufficiency. All complaints found to be sufficient in form and substance shall be raffled for assignment to the Special Prosecutors by the Chief of the Legal Division before the end of the day when such complaints were received. All complaints which are found to be deficient, including anonymous complaints, shall be recommended by the Chief of the Legal Division to the Commissioner either for outright dismissal or for referral to the Intelligence Division for verification or case build-up. The Chief of the Legal Division may advise a private party to put his complaint under oath when it is otherwise sufficient in substance.
SECTION 6. Withdrawal of Complaint - The withdrawal of the complaint does not necessarily discharge the alien from deportation. When there is obvious truth or merit to the complaint, the same shall be given due course in accordance with these Rules notwithstanding the withdrawal of the complaint and/or desistance of the complainant.
Preliminary Investigation
SECTION 1. Notice to show cause - Upon receipt of a complaint, the Special Prosecutor to whom the case was assigned shall immediately issue a notice directing the alien to appear before him on the date and time specified therein which shall not be more than ten (10) days from the date of the notice, to answer the charges and show cause why he should not be deported. A copy of the complaint shall be attached to the notice. The complainant shall also be notified of the scheduled hearing.
SECTION 2. Determination of prima facie case - Within ten (10) days from the date of the hearing, the Special Prosecutor shall determine whether a prima facie case exists against the alien based on the submissions of the alien, the complaint and other evidence on record. If he finds a prima facie case, he shall immediately prepare a charge sheet which must be filed with the Board of Special Inquiry before the end of the aforesaid ten-day period.
SECTION 3. Failure to Appear - If the alien fails to appear at the hearing despite notice duly served at the address given in the complaint or appearing in the Bureau’s records, or if he refuses to accept the notice, the Special Prosecutor shall determine whether on the basis of the complaint and evidence before him, a prima facie case exists against the alien and, if so, he shall file the corresponding charge sheet with the Board of Special Inquiry and recommend to the Commissioner the issuance of a mission order to secure the appearance of the alien before the Board of Special Inquiry.
If a prima facie case cannot be established from the available records, the Special Prosecutor may recommend to the Commissioner the referral of the case to the Intelligence Division for verification or case build-up.
SECTION 4. Complaint Based on Conviction - A complaint based on a final judgment of conviction for a crime shall be summarily disposed of, without need of preliminary investigation. The Special Prosecutor shall determine whether the crime committed involves moral turpitude or a violation of the law governing prohibited drugs, the Philippine Alien Registration Act of 1941, or the Revised Naturalization Laws of the Philippines and related laws. If it does, he shall forthwith institute deportation charges against the alien; otherwise, he shall recommend to the Commissioner the dismissal of the complaint and/or the alien’s immediate release.
Custodial Investigation
SECTION 1. When conducted - In all cases of arrests made pursuant to a mission order issued after determination of probable cause by the Commissioner of Immigration in accordance with Rule VI hereof, the arresting officer shall bring the arrested alien to the Special Prosecutor for custodial investigation. If the arrest is made after office hours and there is no Special Prosecutor who will conduct the custodial interrogation, the arrested alien shall remain under the custody of the Intelligence Division until the custodial interrogation is made at the next working day.
SECTION 2. Filing of Charge Sheet - Immediately after the custodial investigation, the Special Prosecutor shall determine whether a prima facie case exists against the alien. If there is a prima facie case, he shall file the corresponding charge sheet with the Board of Special Inquiry. If there is none, he shall recommend to the Commissioner the alien’s immediate release. The Special Prosecutor must act on the case within two (2) days from the date of the custodial investigation.
The Charge Sheet
SECTION 1. Charge Sheet: Accusation in Writing - A charge sheet is an accusation in writing charging an alien with an offense prepared and subscribed by the Special Prosecutor and filed with the Board of Special Inquiry.
SECTION 2. Form of Charge Sheet - The charge sheet shall be written in clear, simple and concise language and in a systematic manner as to apprise the alien respondent of the nature of the charge against him and to enable him to prepare for his defense.
SECTION 3. Sufficiency of the Charge Sheet - The charge sheet is sufficient if it states the name of the alien complained of, the designation of the offense, the acts or omissions constituting the offense, the approximate time of the commission of the offense, and the place where the offense was committed.
Where an offense was committed by more than one person, all of them shall be included in the charge sheet. If the name cannot be determined, he must be described under a fictitious name with the statement that his true name is unknown.
Mission Order and Search Warrant
SECTION 1. Warrantless Arrest - The Commissioner may issue a mission order which authorizes the warrantless arrest of the suspected alien pursuant to the 1985 Rules on Criminal Procedure, Rule 113, Sections 5, 8, 11 and 13. The mission order shall be valid for ten (10) days from date of issue.
SECTION 2. When Mission Order May Issue - A mission order Against a particular alien may be issued upon request of the Special Prosecutor upon failure of the alien to appear after notice or his refusal to accept the notice, and there is reasonable ground to believe that the alien may be guilty of the offense charged. The Chief of the Intelligence Division may likewise request for the issuance of a mission order if, based on surveillance reports, he believes that an alien may be guilty of an offense. A mission order shall be enforced by the members of the Intelligence Division.
SECTION 3. Search Warrant - Whenever necessary, and upon the recommendation of the Special Prosecutor or the Chief of the Intelligence Division, the Commissioner may secure a search warrant from the court under Rule 126 of the same Rules on Criminal Procedure. The search shall be conducted pursuant to Section 6, 7, 10 and 11 thereof. A warrantless search may be made if it is incidental to a lawful arrest.
SECTION 4. Duties of the Arresting Officer - The arresting officer shall carry out the mission order without delay and with due regard to the human rights of the alien to be arrested.
The arresting officer shall advise the alien of (1) the reason for the arrest; (2) the alien’s right to counsel; (3) the alien’s right to remain silent.
The arresting officer shall bring the alien to the Intelligence Division for record and fingerprint check, which shall include a telephone call to the alien’s consulate or embassy. The arresting officer shall inform the consul of the alien’s arrest and request the consulate to make a records check of the alien.
On the day of the arrest, the arresting officer shall execute an affidavit of arrest and prepare a post operation report. He shall make a file consisting of the affidavit of arrest, post operation report, and the evidence seized, if any, and all other pertinent documents. He shall submit to the Office of the Commissioner a copy of the post operation report.
The arresting officer shall bring the alien to the Special Prosecutor for custodial investigation, provided that where the cause for the arrest was the alien’s failure to appear or refusal to accept the show-cause notice as provided for in Rule III, Section 3 hereof, the alien shall not be turned over for custodial investigation but shall be detained for purposes of the hearing before the Board of Special Inquiry.
Bail
SECTION 1. Bail Not a Matter of Right - Aliens, in deportation proceedings, have no inherent right to bail. The release on bail of arrested aliens shall be discretionary with the Commissioner of Immigration who shall have the power to exact cash bonds in Such amounts and under such conditions as he may prescribe to insure the appearance of aliens released from custody during the course of the deportation proceedings. No bail shall be allowed if there is already a deportation order by the Board of Commissioners, or when the evidence of guilt is strong and the probability of the alien jumping bail is high.
SECTION 2. Application for Bail - After the filing of a charge sheet, an application for release on bail may be fined by the alien personally with the Special Prosecutor assigned to the case. The Special Prosecutor shall evaluate the application in accordance with the immediately preceding section and submit his recommendation to the Commissioner of Immigration who shall either approve or deny the application.
SECTION 3. Conditions of Bail - All kinds of bail are subject to the following conditions:
a. the undertaking shall be in force at al stages of the proceedings until its final determination;
b. the alien shall appear before the Board of Commissioners whenever so required;
c. the failure of the alien to appear at any hearing without justification shall be deemed an express waiver of his right to be present and the hearing shall proceed in absentia;
d. the alien shall surrender himself for execution of the final order of deportation;
e. the bond shall answer for all expenses incident to the arrest and apprehension of the alien should the latter fail to appear before the immigration authorities, and for all other expenses incurred in connection with the deportation, exclusion and departure of the alien.
SECTION 4. Forfeiture of Bail and Re-arrest of Alien - In case of failure to comply with the conditions of the bail, the same shall be forfeited and the cash deposits shall be turned over to the National Treasury.
The alien released on bail who fails to comply with the conditions of the bail or attempts to escape justice may be re-arrested without the necessity of a warrant for his arrest.
SECTION 5. Cancellation of Bail - The bail shall be cancelled when its conditions are fulfilled, or upon the death of the alien, or upon the departure of the alien pursuant to an order of deportation, or his acquittal in the deportation case.
Release of Alien
SECTION 1. When Alien May Be Released - An alien may be released if there is no prima facie case against him or if the alien applied for bail and the same was granted and the bail was filed and approved by the Commissioner.
SECTION 2. Order of Release - No alien shall be released except upon written order of the Commissioner.
Deportation Hearing
SECTION 2. Rights of the Alien - At the scheduled hearing, the alien shall be informed of the charges against him. He shall be asked whether he admits or denies the allegations in the charge sheet.
In the course of the hearing, the alien shall have the right to be presumed innocent, to be present and be defended by counsel of his choice, to have compulsory process for the attendance of witnesses and production of evidence in his behalf, to confront and cross-examine the witnesses against him and to have a speedy, impartial and public trial.
The alien may be compelled to testify unless his alleged action constitutes a crime.
SECTION 3. Waiver of Presence - If any alien has been given reasonable opportunity to be present at a proceeding and without reasonable cause fails or refuses to attend or to remain in attendance at such proceeding, the Board may proceed to a determination in like manner as if the alien were present.
SECTION 4. Motion to Quash - At any time before entering his plea, the alien may move to quash the charges of deportation against him on any of the following grounds:
a. the Board has no jurisdiction over the offense charged or the person of the respondent;
b. the ground for deportation has been extinguished;
c. the facts stated in the charge sheet do not constitute a violation of immigration laws, rules or regulations;
d. the alien has been acquitted of the same charge.
If the motion to quash is denied, the alien shall enter his plea. If the motion is granted, the Board may either recommend the dismissal of the case or order the filing of an amended charge sheet, as the case may be.
SECTION 5. Admission of Charges - If the alien admits the allegations and concedes deportability, the Board shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the admission and forthwith submit his recommendation to the Board of Commissioners.
SECTION 6. Calendar of Cases - The Board shall calendar cases on a first-come, first-served basis. The case shall be calendared for four (4) consecutive hearings as far as practicable and shall be heard continuously until terminated. The hearing of the case shall be terminated within thirty (30) calendar days from the first scheduled hearing.
SECTION 7. Stipulation of Facts and Judgment on the Pleadings - To abbreviate the proceedings, the parties may, on the first scheduled hearing, be persuaded to enter into a stipulation of facts. After entering into a stipulation of facts and the issues shall have been determined, the parties may agree to submit the case for resolution based on the pleadings, stipulation of facts and their respective memoranda which they shall submit simultaneously within fifteen (15) days from the date of the first scheduled hearing. The Board of Special Inquiry shall make its findings and submit its recommendation to the Board of Commissioners within fifteen (15) days from submission of the memoranda.
SECTION 8. Conduct of the Proceedings - The deportation hearing shall be conducted with solemnity and the members of the Board of Special Inquiry shall comport themselves with the dignity and impartiality befitting their position as trier of facts.
The order of hearing shall be as follows:
a The prosecution shall present evidence to prove the charges;
b. The alien may present evidence to prove his defense;
c. Cross-examination by either parties, when proper and allowed by the Board;
d. Upon admission of the evidence, the case shall be deemed submitted for decision unless the Board directs the parties to submit memoranda, in which event, the case shall be deemed submitted for resolution upon submission of such memoranda. As a rule, both parties shall be entitled to present only two witnesses each, under examination in chief. Counsel shall conduct only direct and cross examination of the witness. They shall not conduct re-direct or re-cross examination. There will be no rebuttal or sur-rebuttal examination.
When after the Special Prosecutor has rested his case, the alien files a Demurrer to Evidence to dismiss the case on the ground of insufficiency of evidence, he is deemed to have waived the right to present evidence and to have submitted the case for decision on the basis of the evidence for the prosecution.
When it becomes manifest at any time before judgment, that a mistake has been made in charging the alien, and he cannot be deported based on the charge, the case shall be remanded to the Special Prosecutor for filing of the appropriate charge.
All proceedings before the Board of Special Inquiry shall be reduced in writing.
SECTION 9. Quantum of Evidence - In cases filed with the Bureau of Immigration, a fact may be deemed established if it is supported by substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
SECTION 10. Suspension of Proceedings - When the act committed by the alien constitutes a crime, the Board shall direct the Special Prosecutor to file the case in the proper Fiscal’s Office for prosecution, unless it has already been filed therewith or is actually pending in court. In both cases, the proceedings may be held in abeyance pending the outcome of the criminal case, unless the same act also constitutes a violation of immigration laws, in which case, the deportation proceedings may proceed independently of the criminal case.
Summary Deportation
SECTION 2. Hearing and Judgment - Cases covered by the summary procedure must be heard and judgment rendered thereon by the Board of Commissioners within two (2) weeks from the time of filing of the charges with the Board of Special Inquiry.
Self-Deportation
SECTION 1 .Offer of self-deportation - An offer of self-deportation by the alien shall be granted provided there is no pending case in court against him. Self-deportation shall not be allowed as a means of evading criminal prosecution or civil liability.
The offer of self-deportation shall be approved by the Commissioner upon the favorable recommendation of the Special Prosecutor, the Chief of the Intelligence Division or the Board of Special Inquiry, as the case may be.
SECTION 2. Effect of Self-Deportation - Self-deportation shall bar the alien concerned from re-entry into the country. An application for voluntary deportation shall be treated as an offer of self-deportation and shall be acted upon accordingly.
Recommendation of Board of
Special Inquiry and File
SECTION 1. Action of Board of Special Inquiry - Each Board of Special Inquiry shall submit its recommendation to the Board of Commissioners, signed by all three members, on every case heard by it as a body, within fifteen (15) days from the conclusion of the deportation hearing. The recommendation, which shall be attached to the records of the case, shall contain a brief summary of the findings of facts and the Board’s recommendation on the case.
SECTION 2. Official File - Each Board of Special Inquiry shall keep a chronological file of all recommendations submitted to the Board of Commissioners.
Decision
SECTION 2. Contents of Decision - The decision shall contain a statement of the charge, the name of the alien respondent and a brief statement of the material facts, findings and decision reached.
SECTION 3.Promulgation of Decision; Finality - The decision of the Board shall be returned to the Board of Special Inquiry for promulgation. Service of a copy of the decision at the last known or given address of the respondent or at the office of his counsel shall be deemed promulgation. The decision shall become final and executory after thirty (30) days from promulgation, unless within such period, the President shall order the contrary.
SECTION 4. Execution of Deportation Order - The Commissioner of Immigration shall issue a warrant of deportation to carry out a final order of deportation. The Intelligence Division shall execute the warrant of deportation and shall make a return to the Commissioner within ten (10) days from date of issuance of the warrant. If the warrant of deportation is unserved, the Intelligence Division shall submit a weekly status report until the said warrant is served and the deportation order is carried out.
Costs of Deportation
SECTION 1. Cost of Transportation from Port of Deportation - The expense of travel from the port of deportation shall be borne by the owner or owners of the vessels by which the alien came if deportation proceedings are instituted within five (5) years after entry; otherwise, it shall be payable from funds of the Bureau of Immigration available for the purpose.
SECTION 2. Other Costs - Costs incurred in the course of the deportation proceedings shall be chargeable against the bond, if any, filed by the alien deportee.
Repealing Clause
All laws instructions, administrative orders, memorandum orders, rules and regulations, or parts thereof which are inconsistent with these Rules of Procedure are hereby repealed or modified accordingly.
Effectivity
These Rules of Procedure shall be subject to the approval of the Secretary of Justice.
Upon such approval, the Rules shall be published in a newspaper of general circulation and shall take effect after fifteen (15) days from the date of publication.
Adopted: April 1992
(SGD.) BAYANI M. SUBIDO, JR.
Acting Commissioner
Acting Commissioner