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ISCR 07-13232.a1: Guideline B security clearance appeal, granted (2008) · CASE

ISCR Case 07-13232.a1granted

Case headnote

ISCR Case No. 07-13232.a1

Jul 8, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An engineer born in India was granted a security clearance following an appeal, despite initial concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). Disqualifying conditions C.1 and B.1 were initially raised, pertaining to foreign preference and foreign influence, respectively.

However, the applicant successfully demonstrated mitigating conditions C.2, C.3, and B.1. Key to this favorable outcome was the applicant's renunciation of his Overseas Citizen of India status, directly addressing the foreign preference and influence concerns.

Furthermore, the applicant affirmed that he holds no foreign assets and has no intention of returning to India to live. These actions and declarations convinced the judge that the security risks were sufficiently mitigated, leading to the decision to grant the clearance, which was subsequently affirmed on appeal.

Conditions referenced

Disqualifying

C.1raisedForeign Preference
B.1raisedForeign Influence

Mitigating

C.2appliedMitigating Condition 2The applicant renounced his OCI status.
C.3appliedMitigating Condition 3The applicant has no foreign assets.
B.1appliedMitigating Condition 1The applicant's family ties do not pose a security risk.

Key rule quoted

“The record supports the Judge’s conclusion that Applicant has met his burden of persuasion that it is 'clearly consistent with the interests of the national security' for him to have a clearance.”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedNov 26, 2007
Answer filed—
Hearing heldMar 31, 2008
Decision dateJul 8, 2008

Cite for

Mitigating Conditions Under Guideline C Regarding Foreign Preference
Analysis of Foreign Influence Under Guideline B
Impact of Renouncing Foreign Citizenship on Security Clearance Eligibility

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 a security clearance decision where the Administrative Judge granted the Applicant a clearance despite concerns under Guideline C (Foreign Preference) and Guideline B (Foreign Influence). The Department Counsel appealed, arguing that the Judge erred in his conclusions regarding these guidelines. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowEdward W. Loughran 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)Rejected
Department Counsel argued that the Judge erred in concluding that Applicant’s status did not raise Guideline C security concerns.
Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel contended that the Judge’s favorable decision under Guideline B 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 found no harmful error in the Judge's decision regarding both Guidelines B and C, affirming the favorable security clearance decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
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: To the extent the Judge erred in his treatment of Guideline C disqualifying conditions, such error is harmless in light of the Judge’s sustainable application of Guideline C mitigating conditions. The Judge’s consideration of Guideline B was not confined to the possibility of coercive means of influence. Favorable decision affirmed. CASENO: 07-13232.a1 DATE: 07/08/2008 DATE: July 8, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-13232

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Emilio Jaksetic, Esq., Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security Identified in the record as Hearing Exhibit II. clearance. On November 26, 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 B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 31, 2008, after the hearing, Administrative Judge Edward W. Loughran granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred in concluding that Applicant’s status did not raise Guideline C security concerns; and whether the Judge’s favorable decision under Guideline B is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an engineer working for a defense contractor. Born in India, he came to the U.S. to attend graduate school. He has held an Indian passport, though he never used it. His parents are residents and citizens of India, as are his mother-in-law and father-in-law. He has three siblings, one of whom is a citizen and resident of India, the remaining two being citizens and residents of the U.S. Applicant and his wife traveled to India four times in the recent past to visit their parents. He holds no foreign assets and has no intention of returning to India to live. Applicant has held a status called “Overseas Citizen of India” (OCI). He did so in order to facilitate foreign travel. According to a Department of State Consular Information Sheet, OCI is a status which permits a holder to travel to and from India, to work and study there, and to obtain property there. It is not a “dual nationality” program, being more in the nature of a green card. This document states that OCI status does not confer Indian citizenship upon a holder. Applicant has renounced his OCI status out of concern that it would affect his clearance eligibility. He had previously surrendered his Indian passport when applying for OCI status. Department Counsel argued on appeal that the Judge’s favorable decision under Guideline C did not take into account significant contrary record evidence. OCI status, he contended, raises a serious question as to whether Applicant has shown a preference for India over the U.S. and that it was error for the Judge to conclude that Applicant’s OCI status did not raise security concerns under Guideline C. He stated that “it was arbitrary, capricious, and contrary to law for the . . . Judge to conclude that only full foreign citizenship is covered under Adjudicative Guidelines ¶ 10.” Department Counsel Brief at 7. The Board has considered these arguments in light of the Judge’s decision and the record as a whole, paying particular attention to the previously- referenced Consular Information Sheet, an official U.S. document whose contents are binding upon the Judge. See ISCR Case No. 05-11292 at 4, n.1 (App. Bd. Apr. 12, 2007) (“. . . Official pronouncements by the President, State Department, Department of Defense, or other appropriate federal agency on matters It is not necessarily contradictory to find conduct or circumstances mitigated for the purposes of one guideline but still disqualifying in the context of relevant matters in another guideline. Directive ¶ E2.11(b): “[T]he individual has expressed a willingness to renounce dual citizenship” and Directive ¶ E2.11(e): “[T]he passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated[.]” of national security are equivalent to legislative facts for purposes of DOHA adjudications in that they bind the Judge and are not subject to refutation . . .”) Without elaboration, the Consular information Sheet states that the OCI program does not grant Indian citizenship. The gravamen of Department Counsel’s argument is that the OCI program establishes some form of citizenship, at least in the eyes of the Indian government. The Judge had to consider all the evidence but was bound by the Consular Information Sheet. The record provides no basis to hold that the Judge’s analysis of Applicant’s OCI status was error. Moreover, there is ambiguity in the Judge’s decision in that, after declaring that no Foreign Preference disqualifying condition was raised by the OCI status, the Judge goes on to rely on Applicant’s renunciation of his OCI status and surrender of his OCI card in his overall analysis of Guideline B. This suggests that the Judge may, in fact, have attributed some security significance to the OCI status, notwithstanding his one unequivocal statement to the contrary. In any event, the Judge, in effect, concluded in the alternative that Applicant had satisfied two Guideline C mitigating conditions and this conclusion is sustainable on this record. Therefore, to the extent the Judge erred in his treatment of the disqualifying conditions, such error is harmless. Department Counsel also argues that it was arbitrary, capricious, and contrary to law for the Judge to conclude that only full citizenship is covered under the Guidelines, ¶ 10. The Board does not interpret the Judge’s decision as asserting or implying such a position. Concerning Guideline B, Department Counsel is correct that the Government’s security concerns are broader than the limited possibility of the use of coercive means of influence. However, a review of the Judge’s decision leads the Board to conclude that the Judge did not confine his analysis under Guideline B to only coercive means of influence. Department Counsel’s brief cites several passages where the Judge spoke solely in terms of “coercion.” Yet, in other portions of his Decision, the Judge uses terms like “inducement,” “persuasion,” and “conflicts of interest” when discussing the potential security concerns raised by the presence of Applicant’s family members in India. Judges’ decisions are not measured by a standard of perfection. The fact that the Judge did not engage in a detailed discussion of bribery and illegal gratuities as forms of foreign influence, and did not engage in the type of conflict of interest analysis proffered by Department Counsel, does not establish error. The terms used by the Judge, though general, are broad in scope and fairly embrace the concept of non-coercive means of influence. The Judge’s use of them indicates that he considered an appropriate spectrum of types of foreign influence, and “a satisfactory explanation for [his] conclusions, including a rational connection between the facts found” and his ultimate decision, both as to the application of the mitigating conditions and the whole-person analysis. See ISCR Case No. 03-22861 at 2-3 9App. Bd. Jun. 2, 2006). The record supports the Judge’s conclusion that Applicant has met his burden of persuasion that it is “clearly consistent with the interests of the national security” for him to have a clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). “The Board need not agree with a Judge’s decision in order to find it sustainable.” ISCR Case No. 06-23881 at 2 (App. Bd. November 2, 2007). Accordingly, the Board concludes that the Judge’s decision, as to both Guidelines B and C, is sustainable.

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board