Marrying an Overstay Person
QUESTION
I was married to a Japanese national named “GT” back in January 1993 and had 2 children with him, shortly after – we divorced by agreement because of his wasteful habits in December 2009. I was able to take custody over the two children. I then became acquainted with a Filipino “John” after my divorce, and we got engaged. The problem is, that he has been overstaying here in Japan for long time.
John chose the way of unlawful stay in Japan in order to support his family living in the Philippines after landing by a Temporary Stay visa in May 1998. Since we were worried about his over staying case, we went and consulted with a group which we will call as “A group” which was well known in our community and was processed by one of their employees “Ms A”
After we explained our situation, “Ms A” came up with the following explanation and suggestions:
- Get a marriage certificate, by marrying my boyfriend John.
- To surrender to the Immigration Bureau, then submit our marriage certificate.
- Based on these recommendations – “Ms A” said that we would be able to get a Special Residents Permission for my boyfriend John
Although, I have submitted the divorce notice with “GT” to the city office in Japan, I wasn’t able to file and report it in the Philippines. Therefore, I am worried about my re-marriage report since I could not obtain CENOMAR (Certificate of No Marriage), however, Ms A said that “Do not worry about it. Let me carry out it.” Fortunately or unfortunately, our marriage registration was accepted in Matsudo City Office on July 26, 2012.
Next, we surrendered to the Tokyo Immigration Bureau and we were accompanied by Ms A.
After various investigations and examinations were carried out at the Immigration Bureau, they finally issued the “Notice of Decision” on July 30th 2013, We were surprised with the decision because it indicated that he is supposed to be deported to the Philippines by force.
What is wrong with this situation? And, what should we do about it?
ATTY. MIYOSHI’S RESPONSE:
I have some questions for you. First, what kind of organization is “A Group”? In addition to this, is “Ms. A” a lawyer? With a valid license to practice law here in Japan?
CLIENT’S RESPONSE:
I am so sorry that I do not know the details about “A Group” as far as I know they are a Non Profit Organization (NPO) here in Japan. We went to their service since we don’t have much money to pay for a lawyer and we heard that this “A Group” is relatively cheap. As for the person in charge of our case – “Ms. A” she did not seem to be a lawyer, since did not mention it to us and did not act like a lawyer.
ATTY. MIYOSHI’S RESPONSE:
Did “Ms. A” give you any information about Japan marriage laws or any information about “Marriage Annulment” and clearly explain the process to both you and John?
CLIENT’S RESPONSE:
They did not explain any of the things you have mentioned. But, she went to Matsudo city office and carried out the procedure of our marriage registration with me and this notification was accepted without any problem. So, we have no doubt of what has been held at all.
ATTY. MIYOSHI’S RESPONSE:
I do hope you understand that all Filipinos including you cannot absolutely erase the marriage record which the National Statistics Office (NSO) keeps unless there is a “Judgment of Marriage Annulment” based on the Philippines Family Law which is obtained from the Regional Trial Court (RTC) in the Philippines, even if your divorce is materialized based on a Japanese Law (Civil Code). That is, second marriage is impossible since a single certificate the CENOMAR cannot be released to you and you cannot obtain a valid and legal CENOMAR. Therefore, your second marriage with John can be considered as “bigamy”, because you married another person while you had been continuing in the state of marriage with “GT”. It means that all of “Ms. A’s” guidance, instruction, suggestion were not right and lacking in information that is why the Immigration Bureau never considered your marriage with John as valid and legal. Sad to say that “Ms. A’s” incorrect information caused for John to be deported to the Philippines
CLIENT’S RESPONSE:
Was the decision of deportation by the Immigration Bureau caused by the mistakes and misinformation by “Ms A”?
ATTY. MIYOSHI’S RESPONSE:
That’s right. According to the viewpoint of Immigration Bureau, John did the illegal stay for over 15 years since August 1998 and there was no marriage between you and him that would cause for them to award a visa for John
CLIENT’S RESPONSE:
So how come “Ms. A” was able to carry out our marriage registration and why was it accepted by the city office?
ATTY. MIYOSHI’S RESPONSE:
It’s so easy. There are several countries where a single certificate does not exist. No one can request it to those who belong to such country. In addition to these persons, when a single certificate cannot be submitted from a various situation besides these countries, a marriage registration may be accepted by submitting “Affidavit of reasons which cannot submit a single certificate” together with the copy of a Family Register (Koseki Tohon) which the fact of divorce was indicated. That is, it is impossible to have full knowledge of the legal system of each country in the municipal office. So it was accepted by your local city office, but since the Immigration Office has more information about this and has the authority to make the right decision.
CLIENT’S RESPONSE:
What is the “Notice of Decision” delivered on July 30? What kind of meaning does it have?
ATTY. MIYOSHI’S RESPONSE:
Since those who enter Japan illegally or are overstaying correspond to deportation penalty, the deportation procedure would definitely be given based on your situation. The deportation procedure is executed and carried out as decided upon even if the guilty party surrendered or was arrested. This procedure divides into five steps specifically as follows:
- Investigation by the Immigration Control Officer
- Inspection by the Immigration Inspector
- Hearing by the Special Inquiry Officer
- Judgment by the Minister of Justice/Immigration Director General
Among these, “Notice of Decision” is delivered at the stage of (2), (3) and (4), and the Judgment by the Minister of Justice or Immigration Director General is the final decision of the government.
The final decision is either:
(5a) “Special-permission-to Stay” or (5b) “Deportation Order”
The result in the “Notice of Decision” of John is under (5b) – the deportation order.
CLIENT’S RESPONSE:
What are the options that I have after receiving this Notice of Decision?
ATTY. MIYOSHI’S RESPONSE:
There are three methods as follows:
(1) Leave for the Philippines according to deportation order
(2) Submit the “Retrial Petition” to the Minister of Justice asking for the retraction of the decision
(3) File to ask for cancellation of final decision to Tokyo District Court as the case of “Administrative Litigation”.
CLIENT’S RESPONSE:
Although I understood “(1)”, I do not understand “(2)” and “(3)”. Please explain plainly.
ATTY. MIYOSHI’S RESPONSE:
“(2)” is the petition addressed to the Minister of Justice that requests the retraction of final decision and special permission to stay must be given if you would find new special or unavoidable facts to be reconsider after delivering a “Notice of Decision”. There is no system and regulation of “Retrial Petition” in the Immigration Control and Refugee Recognition Law.
The Immigration Bureau by itself can determine freely whether reconsider it or not, since this is a practical treaty that applied correspondingly regulation of Article 435 of the Criminal Procedure Code.
As long as it says extremely, they may throw away into a garbage can without seeing anything.
Speaking statistically, a possibility of being withdrawn being about 0.0001% That is, it can be said that decision disposal is hardly withdrawn.
“(3)” is based on a statute which is not “Retraction” but asks for “Cancellation” of final decision. If the case is won at a court, he would be granted the “Special Permission to Stay” after the final decision would have been canceled by the court. However, the possibility also of this is 2 to 3%.Moreover, he is supposed to be detained by the Immigration authority until a trial ends as a rule.
CLIENT’S RESPONSE:
Can you please advise about my situation with John and I want for both of us to stay and live here in Japan.
ATTY. MIYOSHI’S RESPONSE:
First, you have to obtain a marriage annulment decree from the Regional Trial Court in the Philippines.
Although it depends on the court, I overheard that it takes about four months to one year in order to obtain this judgment. So be prepared to wait out while the decision is being carried out.
Subsequently, the record in LCR and NSO must be corrected based on this judgment. So, you can get married with John after you would obtain CENOMAR from NSO. Then, you can apply for the Certificate of Eligibility to Tokyo Regional Immigration Bureau.
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