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ISCR Case 07-05354.a1 — CASE

ISCR Case 07-05354.a1denied

Case Headnote

ISCR Case No. 07-05354.a1

Jun 6, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen applicant was denied a security clearance under Guideline C (Foreign Preference). The applicant possessed and retained Latvian citizenship and a Latvian passport. This was done to facilitate a potential inheritance of property located in Latvia.

The security clearance was denied because the applicant's retention of foreign citizenship and a foreign passport indicated a foreign preference. The applicant's arguments against this finding were deemed insufficient to demonstrate an error in the judge's initial decision.

Ultimately, the appeal board upheld the denial, concluding that the judge's findings were supported by substantial evidence and that the applicant failed to show any error in the decision.

Conditions Referenced

Disqualifying

CraisedForeign Preference

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedAug 31, 2007
Answer filed—
Hearing heldFeb 26, 2008
Decision dateJun 6, 2008

Cite For

Foreign Preference Concerns Under Guideline C
Burden of Proof Shifts to Applicant to Establish Mitigation
Substantial Evidence Standard in Security Clearance Decisions

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

Affirmed

The appeal involved an applicant who was denied a security clearance due to security concerns under Guideline C (Foreign Preference). The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and that any alleged errors were harmless.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided ona hearing

Guidelines belowGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board concluded that the Judge's findings were based on substantial evidence and that any errors were harmless, affirming the decision to deny the security clearance.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

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

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 DIGEST: Applicant has applied for and received Latvian citizenship and a Latvian passport which she retains in part because she stands to inherit property in Latvia. Between 1997 and 2006 she has traveled to Latvia six times. The favorable evidence cited by Applicant is not sufficient to demonstrate that the Judge erred. CASENO: 07-05354.a1 DATE: 06/06/2008 DATE: June 6, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-05354

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Decision at 2. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 31, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 26, 2008, after the hearing, Administrative Judge Philip S. Howe denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings are based on substantial evidence; whether the Judge’s adverse security clearance decision under Guideline C is arbitrary, capricious, or contrary to law. The Judge found Applicant, a U.S. citizen by birth, had applied for and received Latvian citizenship. In March 1996, she applied for and received a Latvian passport. That passport expired in March 2006 and Applicant renewed it the same month. It will not expire until March 2016. Applicant retains this Latvian passport; she has not destroyed or surrendered it. Applicant traveled to Latvia in 1997, five times between 2003 and 2004, and in 2006. She maintains her Latvian citizenship, in part, because she stands to inherit property in Latvia.1

Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge’s findings contain multiple errors. Applicant also argues that the Judge’s adverse decision should be reversed because she had informed her security officer that she was obtaining Latvian citizenship and a Latvian passport, and was under the reasonable belief that she had approval to due so. Applicant’s arguments do not demonstrate that the Judge erred. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the 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, (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable inferences that could be drawn from the record. To the extent that there is error, the errors are harmless error in that they would not change the outcome For example, Applicant states her age is 46, not 47; she states she applied for Latvian citizenship because she was given an opportunity to due so, not for the purpose of inheriting land; she states while in Latvia she did not speak with a person about the value of her father’s property, but about other properties; she states that she did not say she intends to build a summer home in Latvia someday in the future, only that there was a hypothetical scenario 20 years in th future. She might possibly build a summer home, but she had no specific plans to due so at this time. Decision at 5. of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. He reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 2 (App. Bd. Sep. 4, 2007). The Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice 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). Therefore, the Judge’s conclusion that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance”3 is sustainable. See Department of the Navy v. Egan, 484 U.S. 518 (1988).

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed; William S. Fields William S. Fields Administrative Judge Member, Appeal Board