HARRISON

 Interim Decision #2038




                          MATTER OF HARRISON

                      In Section 249 Proceedings
                              A-18356268
            Decided by District Director March 11, 1970
Applicant, who has resided continuously in the United States since entry in
 1915 except for an absence of 3 years and 5 months while serving in the
 Canadian Armed Forces during World Wsr II, did not by such absence
 break the continuity of residence for the purpose of section 249, Immigration and Nationality Act, as amended, since there is no evidence he ever
 intended to abandon his residence in the United States, not having established a residence in another country during such absence, having maintained a mailing address in this country where he resided prior and subsequent to service in the Canadian Army, and having returned to the United
 States immediately upon discharge from the Canadian Army.
ON BEHALF OF AFFLICANT:    Ben C. Shapero, Esquire


   Dr. Simon Harrison was born in Canada on October 5, 1912.
 He claims that he first entered the United States on August 16,
 1915, in the company of his father, mother, two brothers and sister. (This is verified by form 1-404 on file, which also reflects
that the children, including subject, were admitted as United
States citizens.) The applicant claims that he has traveled to Canada on numerous occasions since entry, but has stayed no more
than a few days on each visit, except for an extended absence
while serving in the Canadian Armed Forces during the Second
World War. He has apparently gained readmission on each occasion through claim to United States citizenship.
   He advised that until recently he had presumed that he was a
citizen of the United States through his father's naturalization on
June 27, 1927. The file indicates that he would have derived citizenship through this act had he been lawfully admitted to the
United States for permanent residence in 1915, rather than erroneously admitted as a United States citizen.
   The applicant claims that at the start of United States involvement in the Second World War he applied for a commission in
the United States Army based on his profession as a dentist. He

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 allegedly was unsuccessful since in order for a dentist to qualify
 for a commission he had to first be approved by a three man Dental Association Board. At that time the association was active in
 supporting proposed legislation to outlaw the practices of persons
 known as "Advertising Dentists." Dr. Harrison claims that he
 had worked for such a dentist for a short period of time and was,
 therefore, looked on with disfavor by the board. He was advised
 by the Selective Service that lacking the board's approval he
 could not be accepted for a commission but instead likely would
 be drafted as a private at a later date. (He was classified A-3 at
 that time.)
    Dr. Harrison stated that a short time later, while on a visit to
 London, Ontario, Canada, he decided to check on the possibility of
 securing a commission in the Canadian Army. After some consultation the Canadian authorities agreed to accept him as an officer. He claims that prior to receiving his commission he inquired of the Canadian officials if there was any chance of losing
 his United States citizenship through service in their army. He
 allegedly was assured that so long as he did not take an oath of
 allegiance to the British Crown he would retain his citizenship.
 His claim concerning this matter is supported by a letter from
the Department of Veterans Affairs stating that they have no
record of his taking the oath and a letter from the Canadian Department of National Defence certifying that he did not take the
oath. A certified copy of Statement of Service in the Canadian
Armed Forces on file reflects that Dr. Harrison was inducted into
the Canadian Army at London, Ontario, Canada, on September
29, 1942. He served in the theatres of Canada, Britain, Central
Mediterranean and Northwest Europe, and was honorably discharged with the rank of captain on February 23, 1946.
   Since the applicant was not in fact a citizen of the United
States at the time of his service in the Canadian Army, the above
claims concerning the oath of allegiance were presented for whatever consideration warranted in support of his contention that he
has had a continuous residence in the United States since prior to
July 1, 1924, notwithstanding his absence of three years and five
months during World War II.
  The record reflects that the applicant has resided continuously
in the United States since entry in 1915 except for the abovementioned period of time. There is no evidence that he established any residence in another country during this period. By
contrast there is ample evidence that he intended to, and in fact
did, return to the United States immediately upon discharge from

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the Canadian Army. While in the army he maintained a United
States mailing address at the home of his father and brother,
where he resided both prior and subsequent to his service in the
army.
  There is no evidence that the applicant ever intended to abandon his residence in the United States and since it appears that
he is otherwise eligible, it is concluded that his absence during
service in the Armed Forces of Canada should be considered temporary and the application approved as requested.
  ORDER: It is ordered that the application for creation of record of lawful admission for permanent residence under the provisions of section 249 of the Immigration and Nationality Act, as
amended, be granted.




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