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ISCR Case 07-04529.a1 — CASE

ISCR Case 07-04529.a1unknown

Case Headnote

ISCR Case No. 07-04529.a1

Jul 24, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This case involved a U.S. citizen, born in Germany, whose security clearance was challenged under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) due to his possession of a valid German passport. The disqualifying condition C.1 was raised, indicating a concern about foreign preference.

The applicant attempted to mitigate these concerns by applying mitigating condition B.1, which typically involves demonstrating that the foreign influence is not a security risk. However, the Appeal Board found that the judge erred in concluding that the applicant had successfully mitigated the concerns. The German passport had not been destroyed, surrendered, or invalidated, which did not satisfy the criteria for mitigation.

Furthermore, the passport remained in the possession of the applicant's attorney rather than being surrendered to a cognizant security authority. The applicant's compliance with the judge's instructions regarding the passport contributed to the failure to mitigate the security concerns. Consequently, no mitigation was ultimately applied, and the case was remanded by the Appeal Board.

Conditions Referenced

Disqualifying

C.1raisedForeign Preference

Mitigating

B.1appliedForeign Influence

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

Procedural Posture

SOR issuedSep 21, 2007
Answer filed—
Hearing heldApr 14, 2008
Decision dateJul 24, 2008Remanded for new decision.

Cite For

Remand for Failure to Mitigate Foreign Passport Concerns Under Guideline C
Impact of Compliance with Judge's Instructions on Mitigation Efforts
Criteria for Evaluating Foreign Preference Security Concerns Under FCMC 11(e)

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Remanded

The appeal involved a security clearance decision where the Administrative Judge granted the Applicant a clearance despite concerns regarding his possession of a foreign passport. The Department Counsel appealed, arguing that the Judge's findings were not supported by substantial evidence and that the conclusions were arbitrary. The Board found merit in these arguments and remanded the case for a new decision.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowWilford H. Ross — granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
The Judge's finding that the Applicant mitigated security concerns was not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's conclusions regarding the Applicant's compliance with the requirements for mitigating foreign passport possession were arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge's findings regarding the Applicant's mitigation of security concerns were not supported by substantial evidence and that the conclusions drawn were arbitrary and capricious. The case was remanded for a new decision, allowing for the reopening of the record.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge is permitted to reopen the record on the motion of either party to present any additional evidence they deem appropriate to resolve the issues identified herein.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline C; Guideline B DIGEST: Applicant had not satisfied the criteria set forth in FCMC 11(e). His passport had not been destroyed or rendered unusable or otherwise invalid. Neither had it been surrendered to a “cognizant security authority.” The passport was in the possession of Applicant’s own attorney. The record will not sustain a conclusion that Applicant has mitigated the security concerns arising out of his possession of a foreign passport, and the Judge’s holding to the contrary is error. Applicant’s failure to mitigate appears to be, in part, a result of his compliance with instructions by the Judge, with the apparent concurrence of Department Counsel. Under the circumstances, the Board concludes that the best corrective action is to remand the case to the Judge for a new decision. On remand the Judge is permitted to reopen the record on the motion of either party. CASENO: 07-04529.a1 DATE: 07/24/2008 DATE: July 24, 2008 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04529

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT The Judge’s favorable decision under Guideline B is not at issue in this appeal. Candace Le’i, Esq., Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 21, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 14, 2008, after the hearing, Administrative Judge Wilford H. Ross granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30.1 Department Counsel raised the following issues on appeal: whether certain of the Judge’s findings of fact were supported by substantial record evidence; and whether the Judge erred in his whole person analysis. Finding error, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant was born in Germany. From 1985 until 2000 he was an officer in the German military. Between 1995 and 1998 he served in the United States as part of an officer exchange program. Applicant married an American citizen in 1997 and had a daughter. However, they subsequently divorced. Applicant’s daughter and his ex-wife live in the United States. After leaving the German military Applicant began working for a U.S. defense contractor. He became a U.S. citizen in 2004. He holds a U.S. passport. He also has a German passport, which he obtained in 2004 and which is valid until 2014. Upon being advised about U.S. concerns over his having dual citizenship, he “took steps to renounce his German citizenship . . . On February 20, 2008, the Applicant’s counsel submitted the Applicant’s Application to Renounce German Citizenship to the German Consulate-General . . . Applicant’s counsel took possession of the Applicant’s German passport at the hearing in order to have it available to surrender to the German authorities after the Certificate of Renunciation has been issued. The passport cannot be surrendered to the German authorities before that time.” Decision at 3. (emphasis added) B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel argued on appeal that the finding highlighted above is not supported by substantial record evidence. In making this finding, the Judge relied on a document submitted by Applicant, a copy of the form, in German with an English translation, whereby he expressed his intention to renounce his German citizenship. The pertinent section of that document reads as follows: “I will turn in my German passport/ID document at the time of receipt of my Certificate of Renunciation.” Department Counsel stated, “[A] reasonable reading of the record establishes only that German authorities expected individuals who had renounced their German citizenship to surrender their German passport (a benefit of German citizenship) upon finalization of citizenship renunciation. The German process, as established by the record, did not preclude surrender of the passport contemporaneously with renouncement of citizenship.” Brief at 10. The Board has examined the record and finds Department Counsel’s position persuasive. We find nothing in the record to support the view that Applicant’s actual receipt of a certificate of renunciation from the German government was a condition precedent to his surrender of his passport. The record does not sustain the challenged finding. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the government presents th evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Despite the implication of the Judge’s challenged finding, there is no basis to conclude that Applicant was, in fact or in law, precluded from complying with the provisions of FCMC 11(e). This provision mitigates the Foreign Preference security concerns arising from possession of a foreign passport, when “the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated . . .” Directive ¶ E2.11(e). At the end of the hearing, the Judge advised Applicant’s attorney “to take possession of [Applicant’s] passport and the [citizenship renunciation] application . . . I notice that this application says that you’re not really supposed to surrender the passport to them until you get your certificate of renunciation . . . What I’d like you to do . . . is check with the German Consulate in Los Angeles, which I assume is where this goes . . . [a]nd see what they’re willing to take. If they’ll take the passport now, do it. Otherwise, I want you to take possession of it until such time as it is surrendered. [Applicant’s Attorney]: I will do that, your honor. [Department Counsel]: Your Honor, are you going to be leaving the record open for that entire period of time? [Judge]: . . . Once he has possession of the passport, I don’t think we have to worry about it . . . when are you going to send it in to Los Angeles? [Applicant’s Attorney]: I’ll do it within 24 hours. [Judge]: Fine. Let’s leave the record open until the end of next week for documentation and see how long this takes.” Tr. at 133 - 135. Subsequently Applicant submitted Exhibit N, a copy of the signed renunciation certificate, along with a letter from his attorney to the German consulate, advising that Applicant “will forward his German Passport to your office upon receipt of the Certificate of Renunciation.” Exhibit N at 4. In her appeal brief, Department Counsel persuasively argued that, at the time of the close of the record, Applicant had not satisfied the criteria set forth in FCMC 11(e), which are broad. His passport had not been destroyed or rendered unusable or otherwise invalid. Neither had it been surrendered to a “cognizant security authority.” The passport was in the possession of Applicant’s own attorney, rather than surrendered to a person authorized to perform responsibilities pertinent to national security. The record before us will not sustain a conclusion that Applicant has mitigated the security concerns arising out of his possession of a foreign passport, and the Judge’s holding to the contrary is error. However, in this case, we note that Applicant’s failure to mitigate appears to be, in part, a result of his compliance with instructions by the Judge, with the apparent concurrence of Department Counsel. Under the circumstances, the Board concludes that the best corrective action is to remand the case to the Judge for a new decision. On remand the Judge is permitted to reopen the record on the motion of either party to present any additional evidence they deem appropriate to resolve the issues identified herein.

ORDER

The Judge’s favorable security clearance decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed; James E. Moody James E. Moody Administrative Judge Member, Appeal Board