G.R. No.

L-1663

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1663 March 31, 1948

FLORETINA VILLAHERMOSA, petitioner-appellant,

vs.
THE COMMISSIONER OF IMMIGRATION, respondent-appellee.

Victoriano V. Valle for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon
for appellee.

BENGZON, J.:

This is an appeal from the order of Honorable Sotero Rodas, Judge of the
Manila Court of First Instance, denying the writ of habeas corpus requested by
Florentina Villahermosa on behalf of her son Delfin Co, who is under detention
by the immigration authorities for purposes of deportation.

In the night of March 24, 1947, a party of sixty-nine Chinese landed

clandestinely on the shores of Sto. Domingo, Ilocos Sur, in an attempt to evade
our immigration laws. Leading them was Delfin Co, a young man, 18 years old,
born in Paniqui, Tarlac, of a Chinese father named Co Sut, alias Yu Kui, and
Florentina Villahermosa his wife. Co Suy died in July 1940, and inn February
1946, Delfin left the Philippines for China on board S/S Cushman as a Chinese
repatriate, in company with his relative Co Chi Pe. However, due to financial
difficulties in China, he took steps to return; but having met a Chines (Co Soon
Tiong), who informed him of a plan to smuggle their compatriots into this
country, he agreed to lead the party to Ilocos Sur where his mother had relatives
who could render valuable assistance. The voyage was undertaken; but
unfortunately, the immigrants were discovered and apprehended immediately
after arrival, and on the 27th day of March, Delfin Co was examined by the
Commissioner of Immigration. Formal investigation of the case began on April
10, 1947. Four days later, the corresponding board recommended that said Delfin
Co be deported to China as a Chinese citizen. The Commissioner of
Immigration agreed with the board, and acting on this recommendation,
rendered a decision ordering the deportation of Delfin Co.

It appears that on April 29, 1947, Florentina Villahermosa, after knowing the
apprehension of her son Delfin, filed in the civil registry of Tarlac under
Commonwealth Act No. 63 an oath of allegiance for the purpose of resuming
her Philippine citizenship which she had lost upon her marriage to Co Suy. On
the strength of such reacquisition of Philippine citizenship by Florentina, it was
contended before the immigration authorities that Delfin, being a minor,
followed the citizenship of his mother, and was a national not subject to
deportation. These contentions were overruled. They were repeated before the
court of first instance in this habeas corpus proceeding and were likewise
rejected. Appellant stresses he same defense.

There are two reasons why Delfin Co must be returned to China. First, he is not
now a Filipino citizen; and second, granting that he is, at the time he entered
this country from China he was a Chinese subject to deportation, and any
subsequent change in his status can not erase the taint of his unlawful,
surreptitious entry.

Section 1 of Article IV of the Constitution enumerates those who are citizens of

the Philippines, as follows:

(1) Those who are citizens of the Philippine Islands at the time of the
adoption of the Constitution.
 (2) Those born in the Philippine Islands of foreign parents who, before
adoption of this Constitution, had been elected to public office in the
Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and upon reaching
the age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

Delfin Co's claim to citizenship can only be predicated, if at all, on paragraph 4

of the above section. But, being a minor he has not had the opportunity to elect
Philippine citizenship, and therefore he is as yet an alien, his father being a
Chinese.

We have heretofore held1 that, after the Constitution, mere birth in the
Philippines of a Chinese father and Filipino mother does not ipso facto confer
Philippine citizenship and that jus sanguinis instead off jus soli is the
predominating factor on questions of citizenship, thereby rendering obsolete
the decision in Roa vs. Collector of Customs, 23 Phil., and U.S. vs. Lim Bin, 36 Phil.,
and similar cases on which petitioner's counsel relies.

Nevertheless, it is contended that Florentina Villahermosa being a Filipina,

Delfin Co, should likewise be a Filipino. Commonwealth Act No. 63 does not
provide that upon repatriation of a Filipina her children acquire Philippine
citizenship. It would be illogical to consider Delfin as repatriated like his
mother, because he never was a Filipino citizen and could not have reacquired
such citizenship.

While his Chinese father lived, Delfin was not a Filipino. His mother was not a
Filipina; she was Chinese. After the death of such father, Villahermosa
continued to be a Chinese, until she reacquired her Filipino citizenship in
April, 1947. After that reacquisition Delfin could claim that his mother was a
Filipina within the meaning of paragraph 4, section 1 of Article IV of the
Constitution; but, according to that same Organic Act, he had to elect
Philippine citizenship upon attaining his majority. Until he becomes of age and
makes the election, he is the Chinese citizen that he was at the time of his
father's demise2.

It does not help petitioner's case to assert that as a mother she has a right to
retain custody of her minor son and to keep him here. Where such son has
violated the immigration laws and rendered himself liable to deportation no
rule or principle should frustrate the Government's action by the interposition
of the mother's right to custody. This consideration becomes stronger where, as
in this case, the re-assumption of Philippine citizenship by Villahermosa has all
the earmarks of an attempt to impede the banishment of Delfin Co, who by the
way, besides being guilty of violating our laws, has not shown any signs of
eagerness to adopt our ways of life.

This petition is moreover to be denied on the strength of precedents heretofore

established, because Delfin was a Chinese when he arrived here; and any
posterior change of status can not affect the legality of his detention for
purposes of deportation.

In Juan Co vs. Rafferty, 14 Phil., 235, a Chinaman claimed the right to enter the
Islands, and being refused by the customs officials, gave bond that he would
present himself for deportation if the claim were disallowed. While under
bond, he was adopted as a son by another Chinaman domiciled herein, in legal
form. Held: he is subject to deportation, because such adoption had no effect
upon his right to enter or remain in the Islands. This Court said that the status
of an immigrant and his right to stay here is to be determined as of the time of
his entry (U.S. vs. Ju-Toy, 198 U.S., 253, 263) and that he could not do afterwards
anything to render valid what was originally an illegal entry.

A Chinese person, not a merchant at the time he applies to enter the

Islands, will not be permitted to remain here upon the theory that he
became a merchant during the time he was waiting for the decision of the
 proper authorities, (Tan Guam Sien vs. Collector of Customs, 31 Phil., 56.)
(See also, U.S. vs. Chan Sam, 17 Phil., 448)

We declare that Delfin Co is not now a Filipino. We also declare that he having
entered this country surreptitiously is subject to deportation.

The decision of the lower court denying his petition for habeas corpus is
affirmed. With costs.

Paras, Pablo, Briones, and Padilla, JJ., concur.

Separate Opinions

HILADO, J., concurring:

I concur in the foregoing decision. Besides, I will only point out that petitioner,
by the very purpose for which she filed the oath of allegiance mentioned
therein, made herself unworthy and disqualified to be repatriated under
Commonwealth Act No. 63.

Section 4 of said Act provides that repatriation shall be effected by merely

taking the necessary oath of allegiance to the Commonwealth of the Philippines
(now Republic of the Philippines) and registration in the proper civil registry.
Allegiance requires the person pledging it, among other things, to respect and
obey the laws of the country to which the pledge is made. But here the person
taking the oath of allegiance did so for the express purpose of legalizing, so to
say, a most serious violation of the immigration laws of the Philippines by her
son. An oath of allegiance taken for that end is, an affront to the sovereign,
besides the criminal responsibilities it entails.

PERFECTO, J., dissenting:

The majority decision fails to abide by one of the elemental rules of law,
enunciated by human wisdom.
That rule is stated in article 18 of the Civil Code as follows:

Children, while they remain under parental authority, have the nationality
of their parents.

That rule is reaffirmed by the Naturalization Law, No. 2927, as amended by Act
No. 3448. It provides that children under 20 years of age and residing in the
Philippines shall become citizens upon naturalization of their parents.

The rule is founded on human nature. Because minor children depend on their
parents for their sustenance, support and protection, it stands to reason that
they should follow the nationality of said parents. They have to live under the
same roof with their parents and as near enough to them to enjoy parental care
and protection. Minor children have to follow their parents wherever the latter,
by political, moral, mental and economic exigencies, have to establish their
abode.

To accept the majority's position is to justify its inevitable consequences, one of

them being the possibility of a fratricidal battle, should the nation of one
happen to be at war with that of the other. One shudders at the mere thought
that parents, as soldiers of one belligerent nation, should fire in murderous
battle against their own children fighting in the enemy trenches, while the
children aim their guns at the very authors of their lives.

There is unanimity of opinion that petitioner Florentino Villahermosa is a

FIlipino citizen. There is no question that she was born of Filipino parents in
Lapog, Ilocos Sur, in March 1905. She is living in Paniqui, Tarlac, the province of
Ambassador Romulo. Since her birth she has resided in the Philippines. She
never went to China. She is a widow. She is the mother of Delfin Co, a minor of
18 years. She is the mother of another minor named Benjamin Co, who is living
with her. There should not be any question that under express statutory
provisions, Delfin Co follows the nationality of his mother. His mother is a
Filipino citizen. Delfin Co is a Filipino citizen.
When on July 8, 1940, her Chinese husband died, Florentina Villahermosa must
have felt that she regained her FIlipino citizenship. She was ignorant of the
provisions of Commonwealth Act No. 63, so she failed to file her oath of
allegiance required by it. Because her son came into trouble, she happened to
learn about the legal requirement on March 25, 1947, and took the oath which
was filed on the 29th of the same month with the civil registrar of Paniqui,
Tarlac.

That the purpose of the said oath of allegiance is, by her repatriation, to keep
her son at her side and within the folds of this country, appears to have
provoked some indignation, as if petitioner has committed a crime or, at least, a
reprehensible act. There is absolutely no ground for taking such an attitude.
Petitioner had only exercised a right expressly granted to her by law. The
statutory provision does not deal with motives or purposes. It is as impersonal
as the constitutional provisions guaranteeing fundamental rights without
taking into consideration the purposes and motives for the exercise of said
rights.

That the petitioner had exercised a right expressly granted to her by law for the
benefit of her son or for the purpose of protecting him against an action
harmful to him, is only logical. There is nothing objectionable in her taking
advantage of the law to give tangible expression to her maternal love, which is,
without any doubt, universally considered the most sublime feeling nature has
infused in human hearts. The feeling is so elemental that it is not unknown
even to the lowest phila of the animal kingdom. That even the fiercest wild
animals are not devoid of such feeling is a wonder that cannot fail to move he
most indifferent person. Many perceive in that fact the operation of an infinite
intelligence taking care of all living things.

That petitioner had only obeyed the mandates of nature, that she yielded to an
unconquerable feeling, the one most praised my moralists, defied by spiritual
and religious leaders, the subject of glowing eulogium in eloquent prose and
inspired poetry, whenever and wherever literature has flourished, instead of
causing criticism, should only merit panegyric and be acclaimed, she having
followed the noblest impulses of her nature.

Since his birth on May 31, 1928, Delfin Co has been a resident of the Philippines
until February 2, 1946, when, probably yielding to the youthful lust for
adventure, without the consent or knowledge of his mother, he stealthily went
to China. Having returned on March 29, 1947, to the Philippines, his place of
residence, it is only natural that he should want to remain here and that his
mother should exert all efforts so that he should not go away again. By the
repatriation of Florentino Villahermosa, Delfin Co became ipso facto a Filipino
citizen. As a resident of the Philippines and as a FIlipino citizen, he is entitled to
stay.

The unfortunate fact that a character by the name of Co Soon Tiong was able to
persuade him to smuggle a bunch of Chinese into this country, by landing them
in Lapog, Ilocos Sur, in consideration of a free passage to the Philippines, is no
reason to deprive him of the right to remain in the country of which he is a
resident and a citizen.

There are indications that he is entitled to more pity than blame, by his failure
to resist the wiles of a scheming person, who took undue advantage of his
immaturity. His anxiousness to return to his country and be at his mothers side
must have been too strong for him to refuse a free passage, a mere pittance
when, as amply publicized, to secure entrance of Chinese immigrants,
middlemen or procurators earn thousands of pesos per person.

Did Delfin Co commit any crime or offense punishable by law? If he did, let
him be prosecuted and sentenced through due process of law, and if
deportation is the punishment provided by law by competent courts of justice,
let the judgment be rendered and enforced. But it is admitted on all sides that
there is no law punishing the act of Delfin of rendering help to the smuggling of
a bunch of Chinese in question. If he did not commit any crime or offense, only
a subverted sense of justice may justify punishing him with deportation.
We vote, with the revocation of the appealed order of the lower court, to declare
null and void the order of the Commission on Immigration deporting Delfin Co
to Amoy, China.

TUASON, J., dissenting:

With regret I am constrained to disagree with the views of the majority. I shall
briefly state the reasons for my dissent..

1. Article 18 of the Civil Code is explicit in its provision that "Children, while
they remain under parental authority, have the nationality of their parents."
Delfin Co has become, in my opinion, a Filipino citizen by reason of his
mother's reacquisition of Philippine citizenship after her husband's death. I see
no difference, and no valid reason for differentiating, between a legitimate child
of a Filipino mother by a deceased foreign father and a Filipino mother's
illegitimate child. The latter under the rules of international law as well as the
Civil Code takes the citizenship of its mother.

The intention of the framers of the Constitution to withhold Philippine

citizenship from the child of a Filipino mother and an alien father until the
child reaches the age of majority, does not create an exception to the general
rule. It is my humble and considered opinion that the deferment of conferring
Filipino citizenship on such a child extends only to those cases in which both
parents are alive and retain their foreign nationality, or where the father having
died, the mother has not chosen to regain her original citizenship.

It is not good law which prevents minor child of a citizen of the country, a child
to whom by law and by nature she owes protection, from joining its parent. I do
not believe that the Constitutional Convention could ever have contemplated
such an inadmissible and irrational situation.

I do not share the apprehension of some members of the Court that if a child
like Delfin Co should follow the citizenship of her mother his citizenship would
be at the mercy of being changed as often as its mother changes her citizenship
by marriage or otherwise. If that should happen, there is nothing wrong or
ridiculous about it. On the contrary, I think it is more in accordance with
natural law. That is what happens in the case of an illegitimate child of a
Filipino mother marrying a foreigner or obtaining another citizenship; and
there is in this connection no perceptible difference between an illegitimate
child and a legitimate child whose father is dead. If a mother can and wants to
change her citizenship daily, certainly it is natural rather than queer that her
minor child, which depends upon her for care and support, should not be left
stranded.

2. The decision says: "This petition is moreover to be denied on the strength of

precedence heretofore established, because Delfin was a Chinese when he
arrived here; and any posterior change of status can not affect the legality of the
detention for the purposes of deportation." I do not think that this doctrine is
applicable to the present case. The principle established by the decisions cited
on this point is that an immigrant can not take advantage of his unlawful entry
to acquire the conditions imposed by the immigration laws. In the language of
this Court (U.S. vs. Chan Sam, 17 Phil., 448-456), "to say to him (immigrant) that
if by any means he can gain an unlawful entry in the Islands he will be relieved
of the consequences flowing from his unlawful act if at any time after he gains
his unlawful entrance he changes his status and assumes the occupation of one
of the privileged classes, would be to set a premium on the unlawful but
successful evasion by Chinese laborers of the laws prohibiting their entrance into
the Islands." And in Tan Guan Sien vs. Collector of Customs, 31 Phil., 56, the Court
had the same idea when it said, "The law does not contemplate that Chinese
persons may, by one method or another, gain an entrance into the territory of
the United States without the 'section six certificate', and after such entrance
become such a merchant, and then as such, insist upon his right to remain." In
these two cases, and in the case of Juan Co vs. Rafferty, 14 Phil., 235, in which the
immigrant was adopted by a resident while the immigrant's right to enter was
under investigation, the changes in the immigrant status were effected by him
or with his intervention and could not have been accomplished in his absence.
In the case at hand the conversion of the immigrant to Philippine citizenship
was entirely independent of his will and of his presence in the Philippines. The
bond that binds the petitioner and her child existed before the latter entered
the Philippine territory and not from the date of her repatriation only. It is the
legal and absolute right of the immigrant's mother to reclaim her Philippine
citizenship regardless of any mental reservation, her motives or her attitude
toward her country. The legality of her reacquisition of Philippine citizenship is
nowhere challenged. Assuming then that Delfin Co's nationality follows that of
his mother, as we believe it does, has Co forfeited his right to be with her as a
result of his entering the Philippines unlawfully? I know of no law which
sanctions such punishment for an immigrant's fault. If, on the other hand, the
theory is that the immigrant must first be purged of his sin by deportation after
which he may be allowed to come back and settle here, the Court would be
adopting an empty ceremony that would lead to no useful purpose nor enhance
the prestige of the administration of law.

FERIA, J.:

I concur in this dissenting opinion.

Footnotes

1Tan Chong vs. Secretary of Labor, no. 47616, September 16, 1947;45 Off.
Gaz., 1269.

2The debates of the constitutional Convention show that the child born of
the Filipino mother married to a foreigner "is not yet a Filipino" and "will
be one if he prefers to be so upon reaching the age of majority". (Aruego,
Framing of the Philippine Constitution, Vol. I, p. 209.)

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