RESPONSE TO DEMARCHE REQUEST: TRAVEL DOCUMENT

UNCLAS MANILA 000482 SIPDIS SENSITIVE BUT UNCLASSIFIED E.O. 12958: N/A TAGS: PREL CJAN RP SUBJECT: RESPONSE TO DEMARCHE REQUEST: TRAVEL DOCUMENT ASSISTANCE FROM GRP FOR DEPORTATIONS REF: A) Mandac-Burgwinkle e-mail of March 4 Re: DFA Response B) Burgwinkle-Haynes e-mail 02/18/2009 Re: Miraflor and Abad deportation cases C) Burgwinkle-Haynes e-mail 12/06/2008 Re: Deportations WG - Philippine Case update D) 08 Manila 02682 E) 08 State 56512 ¶1. (U) This telegram is to officially record the final response by the Government of the Philippines to the demarche requested in Ref E concerning the cases of Armando Sierda Abad and David Valasote Miraflor. ¶2. (SBU) Abad and Miraflor had renounced their Philippine citizenship in an effort to avoid deportation to the Philippines. Philippine consular authorities in the U.S. had been reluctant to document Abad and Miraflor against their wishes. Philippine authorities have now determined that it is appropriate to document the two, despite their objections. ¶3. (SBU) Assistant Secretary Domingo Lucenario of the Philippine Department of Foreign Affairs (DFA) informed Post February 19 that the Philippine Department of Justice (DOJ) finds no legal bar to the issuance by the DFA of a travel document to a person who did not apply for it, but who is being deported to the Philippines. On March 4 Lucenario also shared with post a copy of the cover note "for guidance and appropriate action" dated January 19 conveying this instruction to the Philippine Embassy in Washington. ¶4. (SBU) The DOJ memorandum states: Quote: Secretary Alberto Romulo Department of Foreign Affairs This has reference to your request for opinion as to what constitute a valid renunciation of Philippine citizenship, and whether a Philippine travel document may be issued to a person who has renounced his Philippine citizenship and/or who is not applying for one. Your request relates to a communication, which your Department received from the United States Government, seeking assistance from the Republic of the Philippines in removing two non-U.S. citizens namely, Armando Sierda Abad and David Valasote Miraflor, from the U.S. to the Philippines. Messrs. Abad and Miraflor entered the U.S. as Philippine citizens, but they have been convicted of crimes in the U.S. in an obvious effort to avoid deportation from the U.S. Loss of citizenship may be either voluntary or involuntary. Involuntary loss of citizenship may be provided as a punishment for certain crimes, after due conviction thereof*, while involuntary loss of citizenship takes place by expatriation, which is the voluntary abandonment or renunciation of one's nationality and allegiance.** A Filipino may voluntarily divest himself or herself of his or her nationality in accordance with Commonwealth Act No. 63, as amended,*** Section 1 of said Act reads in pertinent part as follows: Section 1. How citizenship may lost. - A Filipino citizen may lose his citizenship in any of the following ways and/or events: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more; Provided, however, That a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country; (4) By rendering service to, or accepting commission in, the armed forces of a foreign country; Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: Most of the above-quoted grounds for voluntary loss of Philippine citizenship are clear; thus they do not require further explanation. However, with regard to the ground of "express renunciation", an elaboration on this point might be helpful. In the case of Board of Immigration Commissioners and Commissioner of Immigration vs. Beato Go Callano, et al., G.R. o. L-24530, October 31, 1968, the ruling of the Court of Appeals, which cited this Department's Opinion No. 69, s. 1940, was upheld by the Supreme Court, thus: Section 1 of Commonwealth Act No. 63, as amended by Republic Act No. 106, provides that a Filipino citizen may lose his citizenship by naturalization in a foreign country; express renunciation of citizenship; subscribing to an oath of allegiance to support the constitution or laws of a foreign country; rendering service to, or accepting a commission in, the armed forces of a foreign country; cancellation of the certificate of naturalization; declaration by competent authority that he is a deserter of the Philippine armed forces in time of war; in the case of a woman by marriage to a foreigner if, by virtue of laws in force in her husband's country, she acquires his nationality x x x About the only mode of losing Philippine citizenship which closely bears on the petitioners is renunciation. But even renunciation cannot be cited in support of the conclusion tha petitioners lost their Philippine citizenship because the law requires an express renunciation which means a renunciation that is made known distinctly and explicitly and not left to inference or implication; a renunciation manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. (Opinion No. 69 of the Secretary of Justice, Series of 1940) That a renunciation under C.A. No. 63 as amended, must be express in order for it to be considered effective was reiterated by the Supreme Court in the recent case of Valles vs. COMELEC, G.R. No. 137000, August 9, 2000, wherein the Court did not consider as an express renunciation of the Philippine citizenship the mere fact of applying for an alien certificate of registration and being a holder of a foreign passport. Considering all the foregoing, it is this Department's opinion that, if all the other grounds under C.A. No. 63, as amended, for voluntary loss of Philippine citizenship are not applicable to Messrs. Sierda Abad and Miraflor, any inference of renunciation of Philippine citizenship from their conduct alone is not sufficient in order to divest themselves of their citizenship, as the law requires that said renunciation must be made known distinctly and explicitly, by direct and appropriate language. In this Department's Opinion No. 008, s. 1964, we affirm the finding of the Bureau of Immigration that the subject therein has effectively renounced his Philippine citizenship when he made said renunciation in a public document. Such case may be taken as an example of an express renunciation that is considered effective under the law. However, we note from the facts given that Messrs. Sierda-Abad and Miraflor allegedly renounced their Philippine citizenship only after they have been convicted of crimes in the U.S. in an obvious effort to avoid deportation from the U.S. Suffice it to say that an act of illegality can never be construed as an act of expatriation or renunciation. Whatever might be the mode of expatriation or renunciation of citizenship, the cause thereof must be lawful, otherwise the citizen acts contrary to his duty.**** As to your query whether a Philippine travel document may be issued to a person who was renounced his Philippine citizenship, the definition of a travel document and the requirements for its issuance must be looked into. As defined by Republic Act No. 8239, a travel document means a certification or identifying document containing the description and other personal circumstances of its bearer, issued for direct travel to and from the Philippines valid for short periods or a particular trip.***** It is issued only to persons whose claim to Philippine nationality is doubtful or who fall under the category enumerated in Section 13 of R.A. No. 8239,****** which reads as follows: Sec. 13 Travel Documents. - A travel document, in lieu of a passport, may be issued to: (a) A Filipino citizen returning to the Philippines who for one reason or another has lost his/her passport or cannot be issued a regular passport; (b) A Filipino citizen being sent back to the Philippines; (c) An alien spouse of a Filipino and their dependents who have not yet been naturalized as a Filipino and who are traveling to the Philippines or is permanent resident of the Philippines; (d) Aliens permanently residing in the Philippines who are not able to obtain foreign passports and other travel documents; (e) A stateless person who is likewise a permanent resident, or a refugee granted such status or asylum in the Philippines. Thus, a travel document may only be issued to Filipino citizens and to aliens and stateless persons who qualify under the above-quoted provision of R.A. No. 8239. Obviously, any person who has already effectively renounced his or her Philippine citizenship cannot be issued a travel document, unless he or she can be considered an alien or stateless person who is qualified to be issued a travel document under Section 13 R.A. No. 8239. Finally, as to whether a travel document may be issued to a person who did not apply for it, suffice it to say that one ground for issuance of a travel document under Section 13 of R.A. No. 8239 is deportation.******* The power to deport an alien is an act of the State. It is a police power measure against undesirable aliens whose presence in the country is found to be injurious to the public good and domestic tranquility of the people.******** In line with the nature of deportation as an act of a State and not a voluntary act of a person, this Department finds nothing legally invalid to an issuance by the DFA of a travel document to a person who did not apply for it, but who is being deported to the Philippines. Please be guided accordingly. Very truly yours, Raul M. Gonzales Secretary Footnotes: (* is being used instead of numbers) *See Secretary of Justice Opinion No. 096, s. 1945, Citing Com. Act No. 63, Sec. 1, par 6: Gotochaus v Matheson, 58 Barb 152, 40 How, Pr. 97; Constitutional Law, Malcolm and Laurel, p 390 **Roa v. Insular Collector of Customs. G.R. No. 7011, October 30, 1912. ***This Act took effect upon its approval on October 21 1936. ****Secretary of Justice Opinion No. 096, s. 1945 2 Am. Jur. 558 and Art. 4 of the Old Civil Code (now Art. 6 of the New Civil Code, which reads: Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with a right recognized by law). *****R.A. No. 8239, Section 2. ******R.A. No. 8239, Section 2. *******See also DFA Department Order No. 19-A-95, Section 724, entitled Travel Document for Alien Wives of Filipino and for Deported Filipinos, in Passport Guidebook, by Germinia V. Aguilar-Usudan and Edgar B. Badajos (A Project of the Inter-Agency Againts Passport Irregularities),p. 99 ********Board of Commissioners (CID),et al., vs Jose Dela Rosa, et al., G.R. Nos. 95122-23 & 95612- 13, May 13, 1991. Unquote KENNEY