In the Philippine legal system, a foreign national facing criminal charges often finds themselves caught between two powerful jurisdictions: the Bureau of Immigration (BI), which seeks to deport "undesirable aliens," and the Regional Trial Courts (RTC), which seek to exercise jurisdiction over the person for the crimes alleged.
The interplay between administrative deportation and judicial prosecution is governed by specific statutes, Department of Justice (DOJ) circulars, and Supreme Court jurisprudence.
1. The General Rule: Judicial Priority
Under Philippine law, a foreigner who has a pending criminal case cannot be summarily deported until the case is terminated. This is rooted in the principle that the State’s interest in prosecuting a crime and according due process to the accused (and the victim) takes precedence over the administrative convenience of removal.
- Section 22(e) of Commonwealth Act No. 613 (The Philippine Immigration Act of 1940): While the BI has the power to deport, it cannot do so if the alien has a pending criminal case where the penalty involved is more than just a fine.
- The "Clearance" Requirement: Before a deportation order is executed, the BI must secure a Court Clearance. If a judge has issued a Hold Departure Order (HDO) or if the case is simply active, the BI is legally barred from putting the foreigner on a plane.
2. The Legal Dilemma: Administrative vs. Judicial Detention
Even if a foreigner is granted bail in their criminal case, they are often not released to the public. Instead, they are transferred to the BI Detention Center (Camp Bagong Diwa).
The BI argues that while the court has jurisdiction over the crime, the BI has jurisdiction over the right to stay. If the foreigner’s visa is cancelled or expired, they are technically an "undocumented alien," justifying administrative detention despite the posting of bail in the criminal court.
3. Available Remedies
A. Motion to Suspend Deportation Proceedings
If the BI initiates a deportation case (via a Charge Sheet) while a criminal case is pending, the respondent's counsel should file a Motion to Suspend.
- Basis: The resolution of the criminal case is a prejudicial issue or a statutory bar to deportation under Section 22(e) of CA 613.
- Objective: To prevent a Summary Deportation Order (SDO) from being issued until the court renders a judgment (Acquittal or Service of Sentence).
B. Petition for Habeas Corpus
If a foreigner is held in BI detention indefinitely because their criminal case is moving slowly, a Petition for a Writ of Habeas Corpus may be filed in the RTC.
- Grounds: While the BI has the right to detain for deportation, the detention becomes "arbitrary" or "oppressive" if the deportation cannot be carried out due to the pending criminal case.
- Jurisprudence: The Supreme Court has ruled in various instances that if the government cannot deport the alien within a reasonable time due to circumstances beyond the alien's control (like a pending trial), continued detention may be unconstitutional.
C. Application for "Recognizance" or Administrative Bail
Under the 2015 BI Omnibus Rules, a foreigner may apply for provisional release (Bail/Recognizance) for administrative purposes.
- This is separate from the criminal bail.
- It requires the approval of the Board of Commissioners and usually necessitates a Filipino guarantor and the posting of a cash bond.
D. The "Self-Deportation" / Voluntary Departure Strategy
In some cases, a foreigner may prefer to leave rather than face trial and detention.
- Requirement: This requires a Motion to Withdraw/Dismiss the criminal case (often via an Affidavit of Desistance from the private complainant) and a subsequent Motion for Voluntary Deportation before the BI.
- Effect: The foreigner is blacklisted but avoids the squalor of long-term administrative detention.
4. Key Limitations and Jurisprudential Rules
| Scenario | Legal Status |
|---|---|
| Conviction | The foreigner must first serve their sentence in a Philippine penitentiary. After the sentence is served, they are immediately turned over to the BI for deportation. |
| Acquittal | The BI regains full authority. If the foreigner's visa is expired, they will be deported regardless of the acquittal in the criminal case. |
| Dismissal via Desistance | Common in estafa or private crimes. Once the court dismisses the case, the BI can proceed with deportation immediately. |
5. The "Blacklist" Consequences
Any foreigner deported while a criminal case is pending or after its conclusion is automatically placed on the Permanent Blacklist. This is governed by Memorandum Circular No. SBM-2014-001, which ensures that those who have violated Philippine Penal Laws or Immigration Laws are barred from re-entry, unless a Lifting of Blacklist is granted by the DOJ/BI years later.
Summary of the Process
- Arrest: Foreigner is arrested for a crime.
- Inquest/Charging: Criminal case is filed in court; BI issues a Mission Order.
- BI Detainer: Even if bail is paid in court, the BI "holds" the foreigner.
- Trial: Case proceeds. Deportation is stayed by law.
- Termination: Once the court case ends, the BI executes the deportation.