Monday, July 17, 2006

Joc-Joc: No Laughing Matter

Manila newspapers had a field day last week reporting on the arrest of former Philippine Agriculture Undersecretary Jocelyn "Joc-Joc" Bolante by US immigration authorities at the Los Angeles International Airport (LAX) on July 7. Manila reporters and columnists went wild with speculation about why he was arrested and why the bond was set so high at $100,000.

The heavy press interest in Bolante is based on his reported friendship with First Gentleman Mike Arroyo and his alleged role in the distribution of P728 million pesos in fertilizer funds during the 2004 presidential elections.

Sen. Ramon Magsaysay, Jr., the chair of the Senate committee probing what the press dubbed the "fertilizer scam," issued an arrest warrant for Bolante after he twice refused to appear before his committee in October of 2005. Before he could be "arrested" by Senate officials, however, Bolante left Manila for Los Angeles on October 25, 2005.

Upon arrival at LAX in October, Bolante was given a six month visa to stay in the US as a tourist. Before it expired, he left the US, reportedly for South Korea. On July 7, he returned back to Los Angeles with the same multiple entry tourist visa that he used in October, a visa which had been issued to him by the US Embassy many years before.

After he showed his visa to US immigration authorities, Bolante was informed that his tourist visa had been canceled by the US Embassy in Manila. As he had no visa to enter the US, Bolante was then taken into the custody of the US Immigration and Customs Enforcement (USICE) at the San Pedro Detention Center. Bond was then set at $100,000.

Opposition politicians like former Sen. Vicente Sotto III jumped into the speculation derby with this take on the Bolante arrest. "It could be a signal from the US government not to use the US as a hiding place. The US is aware of what is going on in the Philippines. The arrest and detention of Bolante have very deep implications," Sotto said.

In his column, Philippine Daily Inquirer columnist Ramon Tulfo reported that Bolante's visa was canceled by the US Embassy in Manila at the request of Sen. Magsaysay, "a good friend of America because of his late father's closeness to the US."

Whatever the reason and however it came about, the cancellation of Bolante's visa by the US Embassy represents a new and significant development in US-RP relations. For the first time, the US Embassy has canceled a lawfully issued visa to someone who was not facing criminal charges and who had not violated any US immigration laws. To be sure, the US Embassy has always had this power but it had never used it, not even when Col. Michael Ray Aquino and Col. Cesar Mancao fled the Philippines for the US after charges were filed against them in connection with the murder of Bobby Dacer.

If the US Embassy had exercised this kind of power in 1991 when the Philippine Senate was deliberating the extension of the US military bases' lease in the Philippines, the vote may have been markedly different.

The five Philippine senators who have homes in San Francisco may now have reason to worry that any vote they take contrary to US interests may cause them to possibly have their visas to the US canceled, leaving them vulnerable to facing the same fate as Bolante.

According to Senate President Franklin Drilon, a year ago Sen. Loi Ejercito was questioned for five hours by US immigration authorities at the San Francisco International Airport. An agent of the Department of Homeland Security (DHS) disclosed that Sen. Ejercito was detained after DHS received information from the US Embassy in Manila that she had transferred $500,000 to her US account. No charges were filed against her, however, and she was allowed to enter the US.

Sen. Panfilo Lacson, who has considerable property interests in Los Angeles, may also have his visa "Bolante-sized" if and when he next visits the US because he was named as a "co-conspirator" in the US Attorney's indictments of FBI analyst Leandro Aragoncillo and Michael Ray Aquino.

Will this newly-exercised US power have a "chilling effect" on the judge, the government attorneys and the private lawyers involved in the current prosecution of the five US Marines facing charges in Manila for the rape of a Filipina in Subic last November?

These questions have not been raised by Philippine commentators who have focused all their attention on the possible impact of Bolante's return on the impeachment of President Arroyo. If Bolante returns and "he spills the beans on some administration people," Tulfo wrote, "the ensuing scandal that would erupt might be worse than the one created by the Hello Garci tapes."

While a valid news angle, a more significant point may have been be missed altogether. Can any Philippine senator or government official request the US Embassy to cancel a US visa? Was this done upon the simple discretion of one US consul or was it part of a deliberate US policy? Will we see more US visa cancellations in the future? What are the guidelines for the exercise of this power?

And now for a question that can be answered. Why was the bond for Bolante set at $100,000 when the average bond set for overstaying aliens in removal proceedings is $5,000?

The answer requires an understanding of US immigration law. Before passage of the Immigration Act of 1996, an alien apprehended after physically entering the US would be placed in deportation proceedings while one apprehended at the border or at an airport would be placed in exclusion proceedings. In deportation proceedings, the US government has the burden of proving in immigration court "by clear and convincing evidence" that the alien should be deported from the US. In exclusion proceedings, however, the burden of proof is on the alien to prove that he should be allowed to enter the US.

Although the 1996 law replaced the terms "deportation" and "exclusion" with a new term - "removal proceedings," the distinction remained. In deportation proceedings, aliens are generally entitled to "bond" (not "bail"). In exclusion proceedings, however, aliens are not entitled to be released on bond. If one is allowed to bond out, the bond is usually set at a very high rate, like $100,000.

Bolante has no available relief other than to apply for political asylum in order to stay in the US. Although he may not qualify for it, the application for asylum will allow Bolante to stay in the US for years, out of custody - if he can post the bond.

In the meantime, while he remains in custody, Bolante will have to explain to his fellow inmates why his birth name is "Jocelyn" and why his nickname is "Joc-Joc." This is no laughing matter.

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