WONG

                                               Interim Decision #2083




                            MATTER OF WONG

                      In Deportation Proceedings
                              A-14322774
                   Decided by Board June 11, 1971
Deportation proceedings will not be terminated to permit respondent to proceed toward naturalization where there is no pending application or petition for naturalization by him and he has not established prima facie eligibility for naturalization.

CHARGE:
  Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant crewman—remained longer.

ON BEHALF OF RESPONDENT:                       ON BEHALF OF SERVXE:
  David Carliner, Esquire                        R. A. Vielhaber
 Pennsylvania Building                           Appellate Trial Attorney
 Washington, D.C. 20004


   The respondent, a native of China, has been found deportable
under the provisions of section 241 (a) (2) of the Immigration and
Nationality Act in that after admission as a nonimmigrant crewman, he has remained longer than permitted. An order entered by
the special inquiry officer on March 19, 1968, granted him the
privilege of voluntary departure in lieu of deportation with the
alternative order that he be deported to Hong Kong or the Republic of China on Formosa if he failed to depart on or before
April 19, 1968. There was no appeal from the special inquiry
officer's order. The respondent failed to depart and a warrant of
deportation was issued. The respondent on August 14, 1969
moved for a reopening of the deportation proceedings to permit
the withdrawal of the outstanding order of deportation, so as to
enable him to be inducted into the armed forces of the United
States. His motion alleges, inter olio, that he is duly registered
under the Selective Service and Training Act and has been issued
a "statement of acceptability" for induction into the armed services of the United States ; that on October 24, 1968 he was or-

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    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, 

 (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 

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-
                                                  Interim Decision #2083
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 Geronirno, 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-

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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.




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