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Immigration bureau releases illegally detained German

http://www.inq7.net/opi/2004/apr/02/opi_nhcruz-1.htm

Friday Apr. 02, 2004, Philippines

REMEMBER the case of Alfred Lehnert, the German national who was arrested and illegally detained by the Bureau of Immigration when he went to its office in Cebu City to follow up on his visa renewal? Lehnert has been living in the Philippines for the past 10 years and is married to a Filipina, with whom he has a seven-year-old daughter. Somebody has filed an adultery case against him (Lehnert claims it was a frame-up by a person trying to extort money from him) for which reason he was detained. When his case was published in this column in the third week of March, he was in his 17th month of detention without any trial or hearing.

Well, he has already been released. The Supreme Court ordered his release. The law and the Supreme Court have repeated in many cases that only a judge can order the arrest of a person. The only exceptions are the immigration commissioner and the President, but only to implement a final order of deportation of a foreigner and only after that person is given due process. Lehnert was arrested and detained by virtue of a mission order issued by then Immigration Commissioner Andrea Domingo. No hearing for his deportation was ever held. Neither was he deported. Instead he was made to fester in the Bureau of Immigration (BI) detention cell in the Bicutan of Metro Manila until the Supreme Court ordered his release.

Last March 23, the new commissioner, Alipio Fernandez Jr., ordered Lehnert's release. A few days later, he asked to see me. He passed on to me a report on Lehnert's case by Special Prosecutor Zaniah V. Siton. The report justifies the German's arrest, the denial of bail, and his continued detention.

The report tries to make the BI appear blameless for the acts declared illegal by the courts. It cites technicalities, rules and provisions of law to justify Lehnert's incarceration. A close reading, however, will reveal why so many foreigners are languishing in BI detention centers for long periods when the purpose of detention is to deport them. BI people may be erroneously bending the rules.

For example, the report says that preliminary investigation on the deportation proceeding was held on Sept. 18, 2002. The complainant appeared with his counsel and submitted his supporting documents. "Respondent did not appear despite notice," the report said.

But Lehnert, when he came to see me at the Manila Hotel last Monday, said he never received any notice. Litigants are usually given another chance when they don't appear at hearings. Not Lehnert.

"For not complying with a lawful order issued by the Bureau for him to appear at the hearing of his case," the report said, "a mission order was issued against the subject."

The mission order said only to investigate Lehnert, not arrest him immediately. A foreigner can be arrested only when there is a final order of deportation after due process. Due process means "after hearing his side." The BI never heard his side.

Nevertheless, he was arrested on Sept. 27, 2002, when he went to the BI office to follow up on papers.

It was not until Oct. 9, 2002, that the case was transmitted to the Board of Special Inquiry together with the memorandum for the prosecution-but none, mind you, from the defense. In other words, Lehnert was arrested and detained before there was any formal investigation and before his side was heard. The Supreme Court has declared many times that a foreigner can be arrested only "when there is a final order of deportation after due process."

On Nov. 8, 2002, Lehnert's counsel filed a petition for bail but Commissioner Domingo denied the petition "for failure of petitioner to submit any document in support of his petition."

Lehnert's counsel filed a motion for reconsideration on the following grounds:

"1. Under the Constitution the respondent has a right to post bail since the offense with which he is charged is punishable merely by prison correccional.

"2. Respondent should be informed which documents are needed by the Bureau and should be given ample time to secure the same."

The motion was denied. Said the denial order:

"Aliens in deportation proceedings have no inherent right to bail." (Wrong. The Supreme Court has ruled that aliens have the same right to due process as Filipino citizens as provided by the Bill of Rights of our Constitution.)... It is incumbent upon (petitioner) to produce whatever documents which would substantiate the grounds raised in the petition."

The order also stated: "the Board of Commissioners already issued an order of deportation against the respondent...The Rules of Deportation to Govern Deportation Proceedings provides that 'No bail shall be allowed if there is already a deportation order by the Board of Commissioners.'"

Wait a minute, how can there be a deportation order when there is no hearing yet? The subject's side has not been heard yet. Where is the "due process" mandated by the Constitution?

But at any rate, Lehnert filed a petition for habeas corpus with the Regional Trial Court of Mandaue City, which was granted. But the BI appealed to the Court of Appeals. The Court of Appeals denied the appeal. The BI went to the Supreme Court. On Feb. 26, 2004, the tribunal denied the petition for review and ordered Lehnert's release from BI custody.

On March 23, Commissioner Fernandez ordered the release of Lehnert.

I want to make clear, however, that the illegal arrest and detention of Lehnert was done before Fernandez took over as immigration commissioner. He assumed the position only a couple of months ago, when Domingo resigned to run for governor of Pampanga province.