Friday, February 15, 2013

Ultimate Defiance of Sovereignty or Inelastic Migrant Need?

When nationals obey their laws they are, in effect, respecting or acknowledging the sovereignty of the state.  As migrants are essentially guests in a host country, do they then have double the responsibility to comply with a country's legal system?  Stated differently, when migrants get into trouble with the law, should due process be afforded them less, or their guilt be evaluated under a stricter reckoning?  The case of Francisco may help clarify this question.

Francisco entered Japan in 1998 at 29 years old using his real name.   He then overstayed his visa, was arrested in January 2001 and eventually meted out a sentence of two years imprisonment with labor for the crime of overstaying.  However since the sentence was suspended for 3 years, Francisco was instead deported to the Philippines.  

Just thirteen months later (by March 2002) he was back in Japan, this time as a spouse of a child of a Filipina permanent resident.  He was able to re-enter Japan despite being on its blacklist of deported individuals because his passport and marriage contract showed an assumed name -- Francisco.  He lived quietly and peacefully in Japan for the next decade, keeping himself gainfully employed through various blue-collar jobs.

Francisco could have stayed on indefinitely in Japan as he was, technically, for all intents and purposes, a migrant with full legal status, except that this status was secured with manufactured documents.  But in early 2012, Francisco decided to accompany his mother-in-law to the Philippines as she stricken with cancer and wished to have one last visit there.  

Upon his re-entry in July 2012, still using his fraudulent passport and identity, Francisco was arrested by airport immigration.  By November 2012 he was sentenced to two years imprisonment with forced labor, but this time with no suspension of execution.   Francisco has appealed the sentence, and he is currently awaiting the decision of the court.

Figure 1:  Corridor of Osaka District Court Kishiwada Branch at Kishiwada City, Osaka Prefecture --  This is the court nearest to the Kansai International Airport so cases involving migrants arrested upon entry to Japan are commonly docketed in this branch.
Figure 2:  Door of the Court -- Hearings are open to the general public
though proceedings cannot be recorded electronically.
Figure 3:  Schedule of Hearings -- Outside each court door is posted this list of hearings for each day.   One of Francisco's hearings is marked in red.  
Figure 4:  Court of Appeals Hearing -- Francisco's appeal (marked in red) was heard at the Court of Appeals in Osaka City on February 12, 2013.
By Thursday (February 21, 2013), we will know the decision of Court of Appeals.  If Francisco's sentence of 2 years with forced labor is upheld, he will begin serving out his sentence and can expect to be released by February 2015 or earlier.

I say "earlier" because some part of the period that Francisco spent in detention awaiting his appeal to be heard may be "credited" to his sentence, that is, deducted from the period that he needs to serve in prison.  There is no hard and fast rule on how much of the waiting period during the appeals process is treated as part of the sentence.  In Francisco's case, his sentence at the district court level was given in November 2012 and his appeal was heard in February 2013 so a part of this 3-month waiting period may be credited as part of his serving of his sentence.

[I will attend the February 21, 2013 hearing and will continue this post by then with an update on the decision of the Court of Appeals.]

[Update on the sentencing hearing on February 21, Thursday, 2013]

Decision:  The appeal was rejected.

In explaining its decision, the three judges of the Court of Appeals essentially upheld all the bases of the lower court in finding Francisco guilty.  The crime of Francisco, they emphasized, was entering Japan illegally through his use of a fake name.  This had caused great inconvenience to the proper management of immigration in Japan and that he had "no conscience" in doing this second illegal entry even when the suspension period of first sentence in 2001 was still in effect.

The court also cited three positive factors that were favorable to Francisco.  First, was that he had fully admitted his crime and expressed remorse for his illegal acts.  Second, throughout Francisco's 10-year in Japan as an overstayer he had not committed any crime.  Third, the letter sent by the sisters of Francisco asking the court to have mercy on him and just deport him back the Philippines was also considered by the court.

Unfortunately, the court concluded, the positive factors were not enough to outweigh the gravity of the crime of Francisco.

Figure 5: Sentencing Hearing - February 21, 2013 (in red)
Figure 6: View from the 10th Floor of the Court Building in Yodoyabashi, Osaka City
Figure 7:  Another View from the 10th Floor
Figure 8:  Corridor of the 10th Floor of the Court Building
Figure 9: Publication of all scheduled hearings for the day: Located at the lobby of the court building are 4 sets of folders listing all the cases scheduled for the day.  Francisco's sentence hearing is marked in red.
Francisco was given a 40-day credit against the 26-month sentence in cognizance of the almost 3-month period of the appeal.  Adding these 40 days given by the Court of Appeals to the 40-day credit also given by the District Court for the 4-month duration of the first trial, Francisco gets almost 3 months off from his 26 month sentence.

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