The opinion of the court was delivered by: SWEET
Carmelita Mendiola ("Mendiola"), has petitioned this court for the naturalization of her son, John Alfred, pursuant to 8 U.S.C. § 1433(a). For the reasons set forth below, the petition is granted and John Alfred Mendiola will be naturalized at the term of the court to be held on November 12, 1986.
The procedural history in this case has been unusual and has necessitated an immediate determination of the most recent motion brought on by Order to Show Cause which was heard on November 7, 1986.
In May, 1986, while unrepresented, Mrs. Mendiola, as a United States citizen, sought an interview to obtain naturalization for her son whose eighteenth birthday occurs on November 15, 1986. She stated that she was advised that the procedure could not be completed before that date. On October 9, 1986, Mendiola filed an Order to Show Cause for a Writ of Mandamus directing the Immigration and Naturalization Service ("the Service") to accept her petition for the naturalization of her son under 8 U.S.C. § 1433(a), which provides:
A child born outside of the United States, one or both of whose parents is at the time of petitioning for the naturalization of the child, a citizen of the United States, either by birth or naturalization, may be naturalized if under the age of eighteen years ...
On October 10, the parties were heard in this court and the Service agreed to ensure that her petition would be accepted either that day or the next working day, which, because of Columbus Day weekend, was October 14. A court order was entered to this effect.
On October 27, Mendiola filed another Order to Show Cause. Between the time that a petition is filed, and the Service holds a preliminary hearing to evaluate the petition, there is normally a waiting period of thirty days. As the petition was filed on October 14, the INS hearing would not take place until November 14, one day before her son's birthday.
On October 31 the Service mooted Mendiola's Order to Show Cause by informing the court that in the interest of orderly adjudication of the issues, it would voluntarily accelerate the waiting period and hold the hearing. November 7 was set as the hearing date on the Service's recommendation to enable the parties time to appeal if necessary.
On November 5, the Service filed a recommendation that Mendiola's petition not be granted because she is not a citizen of the United States. At the November 7 hearing, Mendiola sought to have her petition granted over the opposition of the Service and was advised by the court, informally that the petition would be granted and added to the November 15 calendar. The Service sought to stay the effect of this determination which stay was denied.
Mendiola claims her citizenship through the following chain. Her great-grandfather, Edward Pike, Sr., was born a United States citizen in Connecticut and went to the Phillippines with the armed services. He married, and remained in the Phillippines for the rest of his life. One of his offspring was Edward Pike, Jr., who was born a United States citizen by dint of his father's citizenship. Edward, Jr. is Mendiola's grandfather and resided in the Phillippines his entire life.
Edward, Jr.'s daughter, Pelagia Pike, is Mendiola's mother. She had been issued a certificate of citizenship by the Attorney General. That certificate has never been revoked. Mendiola, too, has been issued a certificate of citizenship by the Attorney General. Like her mother's, it has never been revoked. In addition, Mendiola has been issued a United States ...