Actress-comedienne Pokwang, real name Marietta Subong, projected on social media a happy family life until the relationship with her ex-partner, American Lee O’Brian, with whom she also shares a daughter, turned sour.

The Philippine Bureau of Immigration said on Thursday, April 11, that O’Brian had been deported to the United States, ending the feud between the former lovers.

Can Filipinos initiate the deportation of their estranged foreigner partners or spouses? They can be a private complainant, but the grounds must be based on immigration rules and not on any other reasons that arose from a bad breakup. The grounds for deportation under Philippine immigration laws, as listed in Immigration Memorandum Circular No. SBM-2015-010 are as follows:

• Overstaying
• Undocumented
• Fugitive from justice
• Has fully served the sentence in a crime, which carries the penalty of deportation after service of sentence
• Has fully served the sentence in the crimes mentioned in sections 37(a)(3) and 37(a)(10) of the Philippine Immigration Act

Pokwang’s case

Pokwang filed the complaint against her ex-partner on grounds of him overstaying. Because they were not married, O’Brian did not acquire a permanent resident visa (PRV) by marriage, one of the only few ways for foreigners to get a Philippine PRV.

In Pokwang’s complaint, the comedienne alleged that O’Brian’s repeated renewal of tourist visa “constitutes fraud and willful misrepresentation of facts, while his work engagements are violations of limitations under which he was admitted as a non-immigrant.”

The BI found that there was a violation of Section 37(7) of the Philippine Immigration Act which states that a foreigner can be deported if he/she “remains in the Philippines in violation of any limitation or condition under which he was admitted as a nonimmigrant.”

BI’s records showed that OGIED Productions, Inc. was O’Brian’s petitioning company, which paved the way for him to work in the country. However, BI said that from March 2017 to February 2020, O’Brian also worked as an independent contractor with other production companies and producers.

According to the immigration bureau, O’Brian’s employment in other companies other than his petitioning company was a violation of section 37(a)(7) of the Philippine Immigration Act.

“This conduct unmistakably contravenes the stipulated terms and conditions of his visa, as expressly authorized exclusively for the specified position and company for which it was granted. Such behavior indicates a transgression of the limitations or conditions explicitly delineated in his visa,” the resolution read.

Failed marriages

If the Filipino and the foreigner were married, but the marriage failed, that could be used as pretext for an immigration violation, immigration spokesperson Dana Sandoval told Rappler.

Because foreigners acquire permanent residence visa by virtue of marriage to a Filipino, once separated, the visa loses its grounds.

“It can be a ground for deportation ‘pag wala na ‘yong reason for the visa. So, wala na ‘yong marriage, magkahiwalay na sila,” Sandoval said. (It can be a ground for deportation if the reason for the visa no longer exists. So, no more marriage, and they’re already separated.)

Sandoval said it’s not really uncommon to see deportation cases stemming from failed marriages because they encounter them in Immigration every now and then.

“So ‘pag nagkakaroon sila ng hindi na nag-work out [na] marriage and they choose to sever ties with the spouse, ‘yon ‘yong nagiging reason for us to cancel the visa and initiate an immigration charge against the foreign national,” the immigration spokesperson explained to Rappler.

Process

Speaking from experience in the case of his client Pokwang, lawyer Rafael Vicente Calinisan said complaints for deportation can be filed with the office of the BI commissioner, and the BI would then determine if the allegations have substance. If the BI finds substance, a preliminary investigation will be conducted by the bureau.

The foreigner concerned can submit his/her counter-affidavit or response to the allegations, and if the special prosecutor still finds the allegations sufficient, a charge sheet will be issued similar to the process of filing a criminal complaint.

“After the charge sheet is issued, there will be an internal process in the Bureau of Immigration wherein the case would be included in the agenda of the Board of Commissioners. They would deliberate, and they would decide the case. A resolution would be issued,” Calinisan told Rappler.

Abuses, loopholes

But immigration laws in the Philippines are far from perfect, and at times, had been used against foreigners who were critical of the government.

Under former president Rodrigo Duterte’s presidency, the case of Australian nun Patricia Fox put the Philippine immigration law in the spotlight because her missionary visa was forfeited on the basis of her being too politically involved.

BI’s Operations Order No. SBM-2015-025, passed by former justice secretary Leila de Lima during the Benigno Aquino III government, prohibits “foreign tourists from engaging in any political activity as defined by law and jurisprudence, such as but not limited to, joining, supporting, contributing or involving themselves in whatever manner in any rally, assembly or gathering, whether for or against the government.”

Fox was a missionary in the Philippines who helped farmers, laborers, and indigenous peoples for 27 years, until she was ordered deported by the BI under the Duterte presidency.

In the end, BI’s deportation order was based on a visa violation because the nun only supposedly declared Barangay Amihan, Quezon City, as the place of her missionary work. She allegedly violated immigration laws for supposedly working outside that village.

Fox called the BI’s explanation “absurd,” adding that it will “unduly restrict her religious work in violation of the constitutional precept against interference in the exercise of one’s right to religious freedom and worship.” The nun ultimately left the Philippines, the place she called home for almost three decades, in November 2018.

Complex, used for scam

The Philippines has one of the more complex visa rules for foreigners, even following the “quota” visas under which only certain nationalities can be granted permanent residence here. There are only 50 of each nationality who can be granted the visa per year.

Exclusion from the list means not being qualified for permanent residence. This has left children of these foreigners excluded from the list with limited rights even if they were raised in the Philippines. Some Indians who have been in the Philippines all their lives, for example, resort to the expensive process of naturalization just to acquire Filipino rights – including engaging in political activities, like voting.

Ironically, foreigners at risk of being deported have found ways to skirt immigration laws to be able to stay here. This is what the Department of Justice (DOJ) dubs the “demanda me (sue me)” scheme.

Because Philippine immigration rules ban the deportation of foreigners who have pending cases, foreigners pay to have themselves sued, extending their stay in the country. To address this loophole in the rules, the DOJ has asked the legislature to pass a law that will stop the abusive practice. – Rappler.com