dered to report for induction into the armed services on November 14, 1968; that he reported as ordered but was advised at that time that the Immigration and Naturalization Service had intervened to prevent his induction and that his induction was therefore postponed; that since the entry of the order of deportation, section 329 of the Immigration and Nationality Act has been amended to permit the naturalization of aliens who have had three months or more of active duty in the armed forces during the present hostilities, regardless of the absence of lawful permanent residence in the United States and that a termination of these proceedings will be beneficial to the interest of the United States since the manifest purpose of the amendment to section 329 is to encourage and facilitate the induction of aliens who are illegally in the United States but who are otherwise acceptable to the armed forces.

The Immigration Service has submitted a memorandum in opposition to the grant of the moion. The special inquiry officer in his decision of October 3, 1969 concludes that he has no authority to terminate the deportation proceedings to permit the respondent's induction into the armed forces of the United States. The respondent appeals from his decision and order. We will affirm the decision and order of the special inquiry officer.

Counsel argues that the rationale of our decision in Matter of Hroncich, 11 I. & N. Dec. 193 (BIA, 1961 and 1963), applies to an alien who has been ordered inducted into the armed forces of the United States. We do not agree. Unlike the respondent, Hroncich was eligible for naturalization by reason of his military service and honorable discharge. The only bar at that time was section 318 of the Immigration and Nationality Act which then provided, inter alia, that "no person shall be naturalized against whom there is outstanding a final finding of deportability." The Act has since been amended to remove this bar, section 329, Immigration and Nationality Act, as amended by Public Law 90-663. Our order in Hroncich merely withdrew the outstanding order and warrant of deportation "for the limited and sole purpose of permitting [Hroncich] to proceed with the final hearing on his petition for naturalization under section 329 of the Act, presently pending in the United States District Court, Eastern District, Brooklyn, New York." Our order also provided that "in the event the alien's naturalization is denied, the order and warrant of deportation be reinstated and executed." The respondent in the case before us is not eligible for naturalization under section 329 (a even if deportation proceedings were terminated be

cause he has not "served honorably in an active-duty status" in the armed forces during the prescribed period nor has he been "separated under honorable conditions" as required by the statute.

Counsel argues that the Board's decision in Matter of Vizcarra-Delgadillo, Interim Decision No. 1917 (BIA, 1968), provides the special inquiry officer with ample authority to terminate the deportation proceedings if they have been "improvidently begun." Our decision in Vizcarra-Delgadillo stands for the proposition that pursuant to 8 CFR 242.7 enforcement officials of the Immigration and Naturalization Service, as a matter of prosecutive judgment, may move the special inquiry officer for a termination of deportation proceedings as improvidently begun. The special inquiry officer, who is a quasi-judicial officer rather than an enforcement officer, has no such authority. If enforcement officials of the Immigration and Naturalization Service choose to initiate proceedings against a deportable alien and prosecute those proceedings to a conclusion, the special inquiry officer under 8 CFR 242.8 has no discretionary authority to terminate.

As we recently stated in Matter of Geronimo, Interim Decision No. 2077 (BIA, 1971):

. . . It is within the District Director's prosecutive discretion whether to institute deportation proceedings against a deportable alien or temporarily to withhold such proceedings. Where such proceedings have been begun, it is not the province of the special inquiry officer (or of this Board, on appeal) to review the wisdom of the District Director's action in starting the proceedings, but to determine whether the deportation charge is sustained by the requisite evidence. . . .

8 CFR 242.7 does provide the special inquiry officer with discretion to terminate a deportation proceeding to permit an alien "to proceed to a final hearing on a pending application or petition for naturalization," but the alien must establish "prima facie eligibility for naturalization" and the case must involve "exceptionally appealing or humanitarian factors." There is no pending application or petition for naturalization for the respondent insofar as we can determine on this record, and the respondent is ineligible for naturalization under section 329 of the Act.

Counsel also argues that the purpose of section 329 of the Immigration and Nationality Act, namely, to encourage military service on the part of deportable aliens who do not have a lawful permanent residence, would be frustrated if sole discretion were placed in the District Director of the Immigration and Naturalization Service to determine whether such alien should be permitted to serve in the armed forces. We find no provision in the im

migration laws which permits the termination of a deportation proceeding for the purpose of encouraging a deportable alien to enlist in the armed forces. Section 329 makes a clear distinction between actual "active duty status" and "anticipated service" in the armed forces. The appeal will be dismissed.

ORDER: It is directed that the appeal be and the same is hereby dismissed.

MATTER OF MANJOUKIS

In Visa Petition Proceedings

A-19758454

Decided by District Director February 18, 1971

A visa petition to accord beneficiary nonimmigrant classification as the fiance of the United States citizen petitioner under section 101(a) (15) (K) of the Immigration and Nationality Act, as amended, is denied on the ground that petitioner, who is 14 years of age, is statutorily unable to enter into a valid marriage since under section 551.51 of the Compiled Laws of the State of Michigan, where she resides, the marriage of a female under age 16 is void.

Petitioner is a citizen of the United States through birth at Detroit, Michigan, on March 29, 1956. In accordance with Title 8, Code of Federal Regulations, Part 214.2(k), a petition was filed in behalf of the alien beneficiary, a 24 year old native and citizen of Greece. The petition evidences that neither the petitioner nor the beneficiary has ever been married; that the petitioner desires and intends to marry the beneficiary within ninety days after his arrival in the United States and that the petitioner is in fact a citizen of the United States.

The Immigration and Nationality Act was amended by Public Law 91-225 on April 7, 1970 and provided, inter alia, for a new nonimmigrant classification under section 101(a) (15) as follows: (K) an alien who is the fiancee or fiance of a citizen of the United States and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after entry, and the minor children of such fiancee or fiance accompanying him or following to join him.

Petitioner, supported by her parents, represents that she spent one year in Greece during 1969 and 1970. During her stay in that country she met, dated and became enamored with the beneficiary. It is her intention to marry the alien, complete her education, and in general, assume the duties of a wife. Petitioner's parents are in complete agreement with the proposed action. It would seem then that the petitioner does in fact intend to enter into a

marriage with the beneficiary upon his arrival in this country. The beneficiary has not been examined, however, it appears that he is similarly disposed.

Having established both the petitioner's and beneficiary's intentions toward marriage and finding no cause to determine that either party has been previously married, the principal portion of the statute has been satisfied. The remaining question is whether the petitioner and the beneficiary may enter into a valid marrige. Since the petitioner is a resident of the State of Michigan, sections 551.1 and 551.51 of the Compiled Laws of the State of Michigan have been examined, and provide, inter alia, that:

Section 551.1-the age of consent for the purpose of marriage shall be 18 years for males and 16 years for females.

Section 551.51-the marriage by a female under age 16 is void.

The petitioner being fourteen years of age is not, by statute, able to enter into a valid marriage with the petitioner since the proposed marriage would be void, not voidable, and without recognition under the laws of the State wherein the petitioner resides and intends to continue in residence.

In the absence of a finding that the petitioner is able to enter into a valid marriage with the alien beneficiary within the requisite ninety days after his arrival in the United States, the petition must be denied.

It is ordered that the petition seeking to classify the alien beneficiary as the fiance of a United States citizen under section 101 (a) (15) (K) of the Immigration and Nationality Act, as amended, be and is hereby denied.