A.C. No.

11043

LIANG FUJI, Complainant

RESOLUTION

LEONEN, J.:

Failure to exercise utmost prudence in reviewing the immigration records of an alien, which resulted
in the alien's wrongful detention, opens the special prosecutor in the Bureau of Immigration to
administrative liability.

Before this Court is an administrative complaint1 dated November 23, 2015 filed by Liang Fuji (Fuji)
and his family, against Bureau of Immigration Special Prosecutor Gemma Armi M. Dela Cruz (Special
Prosecutor Dela Cruz) for gross misconduct and gross ignorance of the law in relation to her issuance
of a Charge Sheet against Fuji for overstaying.

Deputy Clerk of Court and Bar Confidant Atty. Ma. Cristina B. Layusa directed the complainants to file
a verified complaint "with supporting documents duly authenticated and/or affidavits of persons having
personal knowledge of the facts alleged"3 in the complaint.

Complainants replied4 by furnishing this Court with copies of the Verified Petition to Reopen S.D. O.
No. BOC-2015-357 (B.L.O. No. SBM- 15-420) and for Relief of Judgment with Urgent Prayer for
Immediate Consideration, and Administrative Complaint (Verified Petition and Administrative
Complaint),5 which Fuji filed with the Board of Commissioners of the Bureau of Immigration, and
prayed that the same be treated as their verified complaint. Complainants further informed this Court
that they had difficulty obtaining certified true copies of the November 21, 2013 Order of the Board of
Commissioners, which granted Fuji's Section 9(g) visa, Summary Deportation Order dated June 17,
2015, and Warrant of Deportation from the Bureau of Immigration personnel who just gave them the
"run[-]around."6 They alleged that the Bureau of Immigration personnel were not particularly helpful,
and did not treat Fuji's case with urgency.7

The facts of this case show that in a Summary Deportation Order8 dated June 17, 2015, Fuji, a Chinese
national, was ordered deported for overstaying. From the Order, it appears that Special Prosecutor
Dela Cruz was the special prosecutor who brought the formal charge against Fuji and another person
upon her finding that Fuji's work visa had expired on May 8, 2013, with extension expired on December
6, 2013.9 Special Prosecutor Dela Cruz found that Fuji had overstayed for one (1) year and six (6)
months in violation of Commonwealth Act No. 613, Section 37(a)(7).10 Her investigation was triggered
by a complaint-affidavit dated April 30, 2015 of a certain Virgilio Manalo alleging that Fuji and another
person had defrauded him.11

On July 28, 2015, the Bureau of Immigration Intelligence Division served Fuji's Warrant of Deportation,
and thereafter arrested him at Brgy. Maloma, San Felipe, Zambales with the assistance from local
police.13 Fuji was brought to and detained at the Bureau of Immigration Detention Facility, National
Capital Region Police Office, Taguig City.14

On March 22, 2016, the Board of Commissioners issued a Resolution dismissing the deportation
charge against Fuji on the ground that "[t]he records show that Liang has a working visa valid until 30
April 2016 under Jiang Tuo Mining Philippines, Inc. as Marketing Liason."18 Fuji was directed to be
released from Bureau of Immigration-Warden's Facility on March 23, 2016.19
In his administrative complaint, Fuji alleged that his rights to due process were violated since he was
not afforded any hearing or summary deportation proceedings before the deportation order was issued
against him.20 Fuji further alleged that Special Prosecutor Dela Cruz failed miserably in discharging her
duties because a simple initial review of the Bureau of Immigration records would have revealed that
he was not overstaying because his Section 9(g) work visa was valid until April 30, 2016.21

In her August 25, 2016 Comment,22 respondent Special Prosecutor Dela Cruz denied that she
committed any grave misconduct.23 She claimed that Fuji was accorded due process during the
summary deportation proceedings.24 He was directed, through an Order dated May 14, 2015 of the
Legal Division, to submit his Counter-Affidavit/Memorandum, which he failed to do.25 Fuji was also able
to file his motion for reconsideration and verified petition to reopen the case.26

Respondent further claimed that the Memorandum dated June 4, 2015 of the Bureau of Immigration -
Management Information System (BI-MIS) constituted a substantial evidence of Fuji's overstay in the
country, hence, her formal charge had legal basis.27

Respondent added that as a civil servant, she enjoyed the presumption of regularity in the performance
of her duties.28 She had no intention to violate any law and did not commit any flagrant disregard of the
rules, or unlawfully used her station to procure some benefit for herself or for other
persons.29 Respondent pointed out that the Ombudsman had in fact dismissed the complainant's
charges against her.30 She added that Fuji stated in his March 29, 2016 Affidavit of Desistance that he
had mistakenly signed some documents including the administrative complaint.31

We find respondent administratively liable for her negligence in her failure to ascertain the
facts before levying the formal charge against Fuji for overstaying.

Generally, this Court defers from taking cognizance of disbarment complaints against lawyers in
government service arising from their administrative duties, and refers the complaint first either to the
proper administrative body that has disciplinary authority over the erring public official or employee or
the Ombudsman.32

the records here show that the Office of the Ombudsman had previously dismissed Fuji's
administrative complaint due to the pendency of his Verified Petition and Administrative Complaint
before the Bureau of Immigration, and considered the case closed.38

The Bureau of Immigration subsequently granted Fuji's petition to reopen his case and ordered his
release. However, it was silent as to the culpability of respondent on the charges levelled by Fuji.

Thus, with the termination of the administrative proceedings before the Office of the Ombudsman and
the apparent inaction of the Bureau of Immigration on complainant's administrative complaint, this
Court considers it proper to take cognizance of this case, and to determine whether there is sufficient
ground to discipline respondent under its "plenary disciplinary authority"39 over members of the legal
profession.40

Contrary to respondent's stance, Fuji's purported Affidavit of Desistance is not sufficient cause to
dismiss this administrative complaint. This Court has previously held that proceedings of this nature
cannot be "interrupted or terminated by reason of desistance, settlement, compromise, restitution,
withdrawal of the charges or failure of the complainant to prosecute the same."41 The primary object of
disciplinary proceedings is to determine the fitness of a member to remain in the Bar. It is conducted
solely for the public welfare,42 and the desistance of the complainant is irrelevant. What will be decisive
are the facts borne out by the evidence presented by the parties.

II

Respondent Dela Cruz claimed that she issued the formal charge against Fuji for overstaying on the
basis of the Memorandum dated June 4, 2015 of the BI-MIS.45

However, nowhere in the Memorandum was it stated that Fuji "overstayed" or that "Liang's working
visa expired on 8 May 2013 and his TVV expired on 6 December 2013"47 as respondent claims. The
Memorandum merely transmitted copies of immigration records showing details of filing of
applications, such as official receipts, - and travel record of Fuji. It was respondent Dela Cruz who
made the determination that Fuji overstayed on the basis of the documents transmitted to her by the
BI-MIS.

Among the documents transmitted by the BI-MIS were computer print-outs showing details of official
receipts dated June 14, 2013, August 7, 2013, and November 19, 2013 for temporary visitor visa
extension and official receipt dated July 15, 2013 for an application for change of immigration status.
Fuji's travel records as of June 4, 2015, show his arrival in the Philippines on February 10, 2014 under
a work visa immigration status.50 Simple prudence dictates that respondent Atty. Dela Cruz should
have verified whether or not the July 15, 2013 application for change of status had been approved by
the Bureau of Immigration Commissioners, especially since she had complete and easy access to the
immigration records.

Respondent failed in the performance of her basic duties. Special prosecutors in the Bureau of
Immigration should exercise such degree of vigilance and attention in reviewing the immigration
records, whenever the legal status and documentation of an alien are at issue. For while a deportation
proceeding does not partake of the nature of a criminal action, it is however, a harsh and extraordinary
administrative proceeding affecting the freedom and liberty of a person.51 1âwphi 1

Respondent was expected to be reasonably thorough in her review of the documents transmitted to
her by the BI-MIS, especially as it may ultimately result in the deprivation of liberty of the prospective
deportee. She should not have simply relied on the handwritten note by a personnel from the BI-MIS
at the bottom portion of the receipt dated November 19, 2013 for 9A visa extension stating "Valid until:
06-Dec-2013." Had she inquired further, she would have discovered that Fuji's application dated July
15, 2013 for conversion from temporary visitor visa (9A) to work visa (9G) was approved by the Board
of Commissioners on November 21, 2013 - or one (1) year and seven (7) months earlier - with validity
until April 30, 2016. Thus, even if Fuji's temporary visitor (9A) visa had expired on December 6, 2013
his stay in the country was still valid under the 9G work VISa.

Generally, a lawyer who holds a government office may not be disciplined as a member of the Bar for
misconduct in the discharge of her duties as a government official.52 However, if said misconduct as a
government official also constitutes a violation of her oath as a lawyer and the Code of Professional
Responsibility,53 then she may be subject to disciplinary sanction by this Court. 1avvphi1

Atty. Dela Cruz failed to observe Rule 18.03 of the Code of the Professional Responsibility, which
mandates that "a lawyer shall not neglect a legal matter entrusted to him, and his negligence in
connection therewith shall render him liable." As a special prosecutor in the Bureau of Immigration,
she is the representative, not of any private party, but of the State. Her task was to investigate and
verify facts to determine whether a ground for deportation exists, and if further administrative action -
in the form of a formal charge - should be taken against an alien.
Had respondent carefully reviewed the records of Fuji, she would have found out about the approval
of Fuji's application, which would negate her finding of overstaying. Because of her negligence, Fuji
was deprived of his liberty for almost eight (8) months, until his release on March 23, 2016.

Simple neglect of duty is defined as a failure to, give attention to a task due to carelessness or
indifference.54 In this case, respondent's negligence shows her indifference to the fundamental right of
every person, including aliens, to due process and to the consequences of her actions.

Lawyers in government service should be more conscientious with their professional obligations
consistent with the time-honored principle of public office being a public trust.55 The ethical standards
under the Code of Professional Responsibility are rendered even more exacting as to government
lawyers because they have the added duty to abide by the policy of the State to promote a high
standard of ethics, competence, and professionalism in public service.56 In this case, respondent's
negligence evinces a failure to cope with the strict demands and high standards of public service and
the legal profession.