[ G.R. No. 204105. October 14, 2015 ] 771 PHIL. 222
THIRD DIVISION
[ G.R. No. 204105. October 14, 2015 ]
GERONIMO S. ROSAS, PETITIONER, VS. DILAUSAN MONTOR AND IMRA-ALI M. SABDULLAH, RESPONDENTS. D E C I S I O N
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari[1] assailing the March 9, 2012 Decision[2] and October 16, 2012 Resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 05497 which affirmed the Office of the Ombudsman’s (OMB’s) March 2, 2007 Decision[4] and July 4, 2008 Order[5] in OMB-V-A-05-0036-A finding petitioner Geronimo S. Rosas, Regional Director of the Bureau of Immigration Mactan International Airport Station, guilty of grave misconduct. The facts follow: On December 7, 2004, Jafar Saketi Taromsari (Taromsari) and Jalal Shokr Pour Ziveh (Ziveh), both Iranian nationals, arrived in the Philippines at the Mactan-Cebu International Airport (MCIA). After staying in a hotel in Cebu City for a few days, they left for Narita, Japan on December 14, 2004. On December 16, 2004, Japanese immigration authorities discovered that Taromsari and Ziveh had counterfeit or tampered Mexican and Italian passports and used falsified names: “Jaime Humberto Nenciares Garcia” for Ziveh and “Marco Rabitti” for Taromsari. For using these fraudulent passports and lack of entry visa, the Japanese immigration authorities denied entry to Taromsari and Ziveh and sent them back to the Philippines. Taromsari and Ziveh arrived at MCIA on the same day at 6:45 p.m. and admitted at the detention cell of the Bureau of Immigration (BI) Cebu Detention Center.[6] In a Memorandum[7] dated December 15, 2004 addressed to BI Commissioner Alipio F. Fernandez, petitioner Geronimo S. Rosas, Senior Immigration Officer and Alien Control Officer of Cebu Immigration District Office, who was then also designated as Regional Director, gave the following report:
On flight PR 433 from Narita International Airport, Japan on Thursday, 16th of December 2004 at 18:45 Hours, passengers JAFAR SAKETI TAROMSARI @ Marco Rabitti (Italian) and JALAL SHOKR POUR ZIVEH @ Jaime Humberto Nenciares Garcia (Mexican), both Iranian nationals, were boarded back to Mactan-Cebu International Airport after caught by the Japanese Immigration authorities thereat for using fake and fraudulent Italian and Mexican passports, respectively. During the investigation conducted by Atty. Serafin A. Abellon, Special Prosecutor in the presence of Regional Director Geronimo S. Rosas, subjects admitted that they bought the Italian and Mexican passports from a certain “KURAM” in Tehran, Iran, whom they allegedly attached their respective pictures substituting the pictures of the real owners and paid US$3,000 at US$1,500.00 each, for the purpose of traveling in comfort without the requirement of entry visa to Japan and finally, to work thereat, considering that JAFAR SAKETI TAROMSARI had worked there before for three (3) years from 1999 to 2002 and earned a lot of money until he was caught and deported by Japanese Immigration authorities, that they both arrived in the Philippines for the first time at MCIA on December 07, 2004 on board MI 566 from Singapore using Italian and Mexican passports under the names of MARCO RABITTI and JAIME HUMBERTO NECIARES GARCIA, respectively. Subsequently, they left for Narita, Japan on December 14, 2004 and were sent back to MCAI on December 16, 2004. That the acts committed by the subjects are plain violations of our PIA of 1940 as amended under Section 29 (a) (14) and therefore, they are excludable. Recommend inclusion of their names in the Blacklist.
Thereupon, an Exclusion Order[8] was issued against Taromsari and Ziveh on grounds of “Not Properly Documented” and “No Entry Visa.” On December 17, 2004, security guards Elmer Napilot (Napilot) and Jose Ramon Ugarte (Ugarte) received a written order from petitioner directing them to escort Taromsari and Ziveh from Bi Detention, Mandaue City to MCIA pursuant to the aforementioned exclusion order for violation of Sec. 29 (a) (17) of Commonwealth No. 613 or the Philippine Immigration Act(PIA)of 1940.[9] On December 19, 2004, Taromsari and Ziveh were released from detention and brought by Napilot and Ugarte to the MCIA for deportation.[10] They were allowed to leave for Tehran, Iran via Kuala Lumpur, Malaysia on board Malaysian Air Lines.[11] On January 18, 2005, respondents Imra-Ali Sabdullah and Dilausan S. Montor, employees of the Bureau of Immigration (BI), Cebu, filed a Complaint-Affidavit[12] before the OMB against petitioner, Napilot and Ugarte for grave misconduct, violation of Section 3(e)[13] of Republic Act (RA) No. 3019 and conduct prejudicial to the interest of public service. Respondents alleged that petitioner irregularly and anomalously handled and disposed of the case involving two restricted Iranian nationals by allowing them to leave the country without initiating any proceeding for violation of immigration laws considering that said aliens were potential threats to the country’s national interest and security. It was further contended that the Iranian nationals should have been charged for deportation because they violated Section 37(a)(9), in relation to Sections 45 and 46 of PIA. In his Counter-Affidavit,[14] petitioner denied the allegations against him and asserted that he should not be made liable for acts that do not fall within his area of responsibility. He pointed out that it is the immigration officers who are incharge of primary inspection of incoming and outgoing passengers as well as the determination of whether a passenger should be excluded, and the management, control and supervision of such duties pertain to the Head Supervisor, Mr. Casimiro P. Madarang III. He also averred that he did not have prior knowledge of the two Iranian nationals’ previous entry to the country as he was, in fact, not at the MCIA on that particular date and time of their first arrival in the Philippines. Petitioner, nonetheless, contended that the two Iranian nationals were proper subjects for exclusion under Section 29(a)(17)[15] since they used Iranian passports without the requisite Philippine entry visas when they arrived on December 16, 2004. He explained that the counterfeit Italian and Mexican passports were confiscated by the Japanese Immigration authorities when Japan excluded the Iranian nationals. Such use of Iranian passports without entry visas served as the basis for their exclusion from our country. He likewise denied giving preferential treatment to the detained Iranian nationals, citing his Memorandum dated December 17, 2004 where he reported to the BI Commissioner that two Iranian nationals violated Section 29(a)(17) of the PIA of 1940 and recommended placing them both in the Blacklist. On March 2, 2007, the OMB rendered its Decision finding substantial evidence of petitioner’s grave misconduct. It held that in unduly releasing the two Iranian nationals, petitioner showed manifest partiality, evident bad faith and gross inexcusable negligence. It also stated that petitioner’s claim that he had no prior knowledge of the unlawful entry was belied by his December 17, 2004 Memorandum. Napilot and Ugarte were acquitted from the charges as they merely acted on petitioner’s orders and no evidence was presented to suggest that they were in conspiracy with the petitioner. The OMB thus ruled:
In view of the foregoing, this Office finds [petitioner] Rosas guilty of Grave Misconduct. Considering the gravity of the offense and the fact that this is not the first time [petitioner] Rosas is administratively sanctioned, the penalty of DISMISSAL is hereby imposed pursuant to Rule XIV, Section 23 of the Omnibus Rules Implementing Book V of Executive Order No. 292. However, finding no conspiracy between [petitioner] Rosas and respondents Elmer Napilot and Ramon Ugarte, the case against Napilot and Ugarte is hereby dismissed for want of substantial evidence. SO DECIDED.[16]
On December 27, 2007, the OMB issued an Order[17] for the immediate implementation of the March 2, 2007 Decision. Petitioner’s motion for reconsideration was likewise denied.[18] Via a petition for review,[19] petitioner assailed the OMB’s ruling in the CA, arguing that he should not be held administratively liable for the release of the two Iranian nationals pursuant to a validly issued exclusion order. In its March 9, 2012 decision, the CA affirmed the OMB’s ruling. The CA held that there was sufficient evidence on record for the OMB’s conclusion that the release of the two Iranian nationals was irregular and not in accord with existing immigration laws. It stressed that the matter was not one that merely involved the lack of entry visas but that petitioner had knowledge that the two Iranian nationals were excluded from Japan for using fraudulent passports. Plainly, the results of the investigation provide sufficient basis for deportation proceedings. The CA concurred with the OMB that petitioner had the duty to initiate deportation and criminal proceedings against the Iranian nationals for violation of Section 37(a)(9) of the PIA in relation to Sections 45 and 46. Thus:
WHEREFORE, in view of the foregoing premises, the Petition for Review dated November 2, 2010 is hereby DISMISSED. SO ORDERED.[20]
Petitioner moved for reconsideration but it was denied.[21] Hence, this petition. Petitioner reiterates that he cannot be held administratively liable for a validly issued exclusion order which is an examining immigration officer’s function under the PIA of 1940. He asserts that there was lack of substantial evidence to hold him liable for giving unwarranted benefit to the Iranian nationals. On his part, the Solicitor General argues that Section 37 of the PIA of 1940 mandates the BI to arrest aliens who enter the Philippines by false means and misleading statements. He explains that the two Iranian nationals were held in detention not for the lack of entry visas but for using falsified documents when they entered the Philippines on December 7, 2004 and when they left for Japan on December 14, 2004. Such was evident from the investigation conducted by the BI on the two Iranian nationals. Petitioner submits the following assignment of errors:
WHETHER PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL FOR THE PURELY DISCRETIONARY ACTS OF THE ASSIGNED IMMIGRATION OFFICERS IN ORDERING THE EXCLUSION OF THE IRANIAN NATIONALS NOTWITHSTANDING THE OVERWHELMING EVIDENCES THAT WOULD SHOW THAT PETITIONER ROSAS HAS NO INVOLVEMENT AND PARTICIPATION IN RENDERING THE SAID EXCLUSION ORDER AND NOTWITHSTANDING THAT THE SAID EXCLUSION ORDER WAS VALIDLY AND PROPERLY ISSUED BY THE IMMIGRATION OFFICERS UNDER THE PREVAILING CIRCUMSTANCES;
WHETHER OR NOT PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL SANS ANY SPECK OF EVIDENCE THAT HE GAVE UNWARRANTED BENEFIT TO THE IRANIAN NATIONALS AND THAT HE WAS MOTIVATED BY CORRUPT MOTIVES WHEN HE SUBMITTED AN INCIDENT/RECOMMENDATORY REPORT TO THE COMMISSIONER OF IMMIGRATION AFFIRMING THE EXCLUSION ORDER OF THE ASSIGNED IMMIGRATION OFFICERS AGAINST THE IRANIAN NATIONALS;
WHETHER OR NOT PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL FOR NOT INITIATING THE DEPORTATION AND CRIMINAL PROCEEDINGS AGAINST THE IRANIAN NATIONALS WHICH UNDER THE LAW CAN ONLY BE EXERCISED BY THE IMMIGRATION COMMISSIONER WHO WAS FULLY INFORMED OF THE CIRCUMSTANCES PERTAINING TO THE INCIDENT INVOLVING THE IRANIAN NATIONALS;
WHETHER THE COURT OF APPEALS HAS SUBSTANTIAL BASIS TO CONCLUDE THAT THE DELAY IN THE EXCLUSION OF THE IRANIAN NATIONALS APPEARED TO BE IRREGULAR AND DEVIATED FROM THE NORM NOTWITHSTANDING THE OVERWHELMING EVIDENCES ON RECORD THAT WOULD SHOW THAT THE SAME HAS FACTUAL AND LEGAL BASIS; AND
WHETHER OR NOT THE, COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE SETTLED FACTS AND EVIDENCES THAT WOULD SHOW THAT PETITIONER ROSAS HAS NOT DONE ANY MISCONDUCT IN RELATION TO THE INCIDENT INVOLVING THE IRANIAN NATIONALS.[22]
Essentially, the issue before us is whether there is substantial evidence to sustain the finding of gross misconduct warranting petitioner’s removal from the service. Otherwise stated, does petitioner’s act of releasing the two Iranian nationals without initiating any case for violation of immigration laws despite the results of the investigation undertaken constitute gross misconduct? We rule in the affirmative. It is well-settled that findings of fact and conclusions by the Office of the Ombudsman are conclusive when supported by substantial evidence.[23] Substantial evidence is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise.[24] The factual findings of the Office of the Ombudsman are generally accorded great weight and respect, if not finality by the courts, by reason of their special knowledge and expertise over matters falling under their jurisdiction.[25] We agree with the CA that there was sufficient basis to initiate deportation proceedings under Section 37(a)(9) in relation to Section 45 of the PIA of 1940. We find no cogent reason to overturn the CA’s findings the question of whether substantial evidence being a question of fact which is beyond this Court’s power of review for it is not a trier of facts.[26] PETITIONER HAD THE DUTY TO INITIATE CRIMINAL PROCEEDINGS AND DEPORTATION PROCEEDINGS UNDER SECTION 45 OF THE PIA OF 1940 Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as it may deem proper for its self-preservation or public interest. In the Philippines, aliens may be expelled or deported from the Philippines on grounds and in the manner provided for by the Constitution, the PIA of 1940, as amended, and administrative issuances pursuant thereto.[27] Section 10[28] of the PIA of 1940 requires non-immigrants to present their unexpired passports and valid passport visas to immigration officers. Pursuant to their powers as outlined in Section 6[29] of the PIA of 1940, the examining immigration officer determines whether the non-immigrant is qualified to enter the Philippines based on Section 29(a).[30] If the alien holds none of the disqualifications as stated in Section 29, he may be admitted entry barring other circumstances that might affect his entry. If, however, the immigration officer determines that an alien possesses any of the disqualifications under Section 29, the immigration officer is authorized to issue an exclusion order. Exclusion and deportation are formal removal procedures which ultimately results to an alien’s removal from the territory provided for separately under Section 29 and 37 of the PIA, respectively. The United States in Ex Parte Domingo Corypus,[31] the Washington District Court in 1925 differentiated exclusion from deportation in the following manner:
x x x Deporting a person who is already in the country, and therefore enlarged, is depriving him of a privilege which he, at least at the time, is enjoying in the United States; whereas a person being denied the privilege to enter is not deprived of any liberties which he had theretofore enjoyed. The gate is simply closed and he may not enter.
Under Philippine immigration laws, exclusion is the authorized removal of an alien by immigration officers, performing primary inspection, or by the immigration boards of special inquiry, by secondary inspection, of any foreigner arriving in the Philippines who, upon inspection and prior to entry or admission, is barred by immigration laws, rules and regulations from entering or being admitted to the Philippines.[32] When an alien is excluded he is immediately sent back to the country where he came from on the same vessel which transported him, unless in the opinion of the Commissioner of Immigration such immediate return is not practicable or proper.[33] Under certain circumstances, when an alien is excluded, Section 25[34] of the PIA of 1940 authorizes the alien’s detention until such time it is determined that he is qualified for entry and/or admission. Deportation proceedings, on the other hand, are governed by Sections 37[35] to 39 of the PIA. We have stated that the power to deport aliens is an act of State, an act done by or under the authority of the sovereign power.[36] It is a police measure against undesirable aliens whose continued presence in the country is found to be injurious to the public good and the domestic tranquility of the people.[37] Pertinently, Section 37(a)(9) provides:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the “round for deportation as charged against the alien: x x x x 9. Any alien who commits any of the acts described in sections forty-five and forty-six of this Act, independent of criminal action which may be brought against him: Provided, That in the case of an alien who, for any reason, is convicted and sentenced to suffer both imprisonment and deportation, said alien shall first serve the entire period of his imprisonment before he is actually deported: Provided however, That the imprisonment may be waived by the Commissioner of Immigration with the consent of the Department Head, and upon payment by the alien concerned of such amount as the Commissioner may fix and approved by the Department Head; x x x x (Emphasis supplied)
The relevant provisions of Sections 45 and 46 state:
Sec. 45. Any individual who: x x x x (c) Obtains, accepts or uses any immigration document, knowing it to be false; or x x x x Sec. 46. Any individual who shall bring into or land in the Philippines or conceal, harbor, employ, or give comfort to any alien not duly admitted by any immigration officer or not lawfully entitled to enter or reside within the Philippines under the terms of the immigration laws, or attempts, conspire with, or aids another to commit any such act, and any alien who enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by willful, false, or misleading representation or willful concealment of a material fact, shall be guilty of an offense, and upon conviction thereof, shall be fined not less than five thousand pesos but not more than ten thousand pesos, imprisoned for not less than five years but not more than ten years, and deported if he is an alien. Dismissal by the employer before or after apprehension does not relieve the employer of the offense. x x x x (Emphasis supplied)
The two Iranian nationals, Taromsari and Ziveh, confessed to have knowingly used falsified passports and obtained entry into the Philippines by using the said fraudulent immigration documents, both of which are grounds for deportation proceedings. Upon being questioned why they were sent back from Japan, they admitted that they entered the Philippines previously using fraudulent passports, to wit:
Q
Do you understand why you were sent back to [MCIA] from Narita, Japan?
A.
Yes sir, we were caught using fake Italian and Mexican passports by Japanese Immigration officers at Narita International Airport, Japan.
Q.
What fake passports are you referring to?
A.
We were using fake Italian and Mexican passports in entering the Philippines at [MCIA].
x x x x
Q.
Where are these Italian and Mexican passports, you mentioned?
A.
The Japanese Immigration authorities confiscated them.
Q.
What was your purpose in going to Japan with fake passports?
A.
Our only purpose is to find jobs there, so that we can support financially our family in Tehran, Iran but Iranians are required to secure entry visas and it is very difficult to get entry visas from their embassy. Italians and Mexicans are not required entry visas to Japan.
Q.
Can you narrate to us how did you and your friend able to reach our country?
A.
First, we applied entry visas at the Thailand Embassy in Tehran, Iran using our Iranian passports, which visa application was granted to us on October 26, 2004. W[e] went to Bangkok, Thailand via Dubai and stayed there for one (1) month and came back to Iran. The last time we left Tehran, Iran again via Dubai on December 02, 2004 to Bangkok, Thailand. Our destination this time [was] to reach Japan via Malaysia & Cebu, Philippines. We arrived Malaysia in December 06, 2004.
Q.
What travel documents were you using from Bangkok to Malaysia?
A.
We were using our Iranian passports, sir.
Q.
From Malaysia to Mactan-Cebu, what travel documents were you using?
A.
From Malaysia, we left on December 06, 2004 and passed by Singapore where we spent about ten (10) hours at the airport, we were using our Iranian passports, we finally boarded Silk Air to [MCIA] and upon arrival in [MCIA], we were using Italian and Mexican passports.
x x x x
Q.
Are you aware that you are violating our Immigration laws in the country?
A.
Yes, sir, but we have to use fake travel documents because of our desire to work and earn a living.
x x x x
Q.
Have you been to Japan?
A.
Yes, sir. I was there for three (3) years, 1999 to 2002 and I earned a lot of money but I was caught and departed back to Iran.[38]
Having admitted that they knowingly entered the country with the use of fraudulent passports and false representations when they arrived on December 7 , 2004, Taromsari and Ziveh should have been ordered arrested and formally charged with violation of Section 37(a)(9) in relation to Section 45(c) and (d). Deportation proceedings should have been initiated forthwith against these aliens. While the two Iranian nationals were initially held due to lack of entry visas, after their admission that they used fraudulent passports in entering the country, the filing of a criminal action pursuant to Section 45 is proper, together with the initiation of deportation proceedings. While both exclusion and deportation ultimately removes a person from our territory, Section 45 imposes an additional penalty - deportation has an additional penalty in that it imposes a fine. Indeed, that these aliens were released without undergoing deportation proceedings as required by law is highly irregular. Misconduct is defined as “a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer."[39] It becomes grave misconduct when it “involves any of the additional elements of corruption, willful intent to violate the law or to disregard established rules, which must be established by substantial evidence."[40] A person charged with grave misconduct may be held liable for simple misconduct if the misconduct does not involve any of the additional elements to qualify the misconduct as grave.[41] The charge of gross misconduct is a serious charge that warrants the removal or dismissal of a public officer or employee from service together with the accessory penalties, such as cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in government service.[42] In this case, petitioner had the duty under the law to oversee the filing of criminal actions and deportation proceedings against Taromsari and Ziveh and not merely excluding them. The facts on record established that at the time petitioner recommended their exclusion on December 17, 2004, he was already aware that said Iranian nationals used the falsified Mexican and Italian passports in entering and leaving the Philippines on December 7 and 14, 2004. Such use of counterfeit passports by aliens entering our country is a criminal offense under Sec. 45 of the PIA, as amended. Instead of filing the appropriate criminal charge as mandated by law, petitioner allowed Taromsari and Ziveh to depart and return to Tehran via Malaysia. While claiming that it was only on December 17, 2004 that he came to know of the Iranian nationals’ detention for illegal entry into the Philippines, official log book records[43] show that petitioner, along with security guards Napilot and Ugarte, brought the two Iranian nationals to their detention cell on the same night of their arrival from Japan on December 16, 2004 and detained them there for three days. Custody over the two Iranian nationals caught violating our immigration laws was simply handed over by petitioner to the two security guards whom he later instructed to escort the said offenders to the airport to depart for Malaysia. In failing to initiate the proper proceedings against the Iranian nationals and allowing them to escape criminal charges and thorough investigation for possible terrorist activities or human trafficking, petitioner displayed a blatant disregard of established immigration rules making him liable for grave misconduct that warrants his removal from the service. WHEREFORE, the appeal is DENIED for lack of merit and AFFIRM the March 9, 2012 Decision and October 16, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 05497. With costs against the petitioner. SO ORDERED. Peralta, (Acting Chairperson), Perez,* Mendoza,** and Leonen,*** JJ., concur.