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ISCR 08-01038.ind: Guideline B security clearance appeal, denied (2009) · CASE

ISCR Case 08-01038.inddenied

Case headnote

ISCR Case No. 08-01038.ind

Jul 22, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen with ties to Brazil was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed from the applicant's use of a Brazilian passport and participation in Brazilian elections.

These actions raised disqualifying conditions C1 and B2, indicating a preference for Brazil over the United States. The judges determined that the applicant's conduct demonstrated a significant security concern that he failed to mitigate.

Consequently, the applicant's security clearance was denied, as his actions were found to reflect an unmitigated foreign preference and potential foreign influence.

Conditions referenced

Disqualifying

C1appliedForeign PreferenceThe applicant willfully continued to exercise his Brazilian citizenship knowing that it raises security concerns.
B2appliedForeign InfluenceThe applicant's relationship with a Brazilian national raised security concerns.

Key rule quoted

“It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance.”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJul 16, 2008
Answer filed—
Hearing heldApr 20, 2009
Decision dateJul 22, 2009

Cite for

Security Concerns Under Guideline B (foreign Influence) Due to Foreign Relationships
Security Concerns Under Guideline C (foreign Preference) Due to the Use of a Foreign Passport
The Importance of Mitigating Foreign Preference in Security Clearance Cases

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 concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline 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 is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision and affirmed the adverse security clearance decision based on the applicant's continued exercise of Brazilian citizenship and the associated security concerns.

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: Applicant has used a Brazilian passport and voted in Brazilian elections. Applicant’s exercise of Brazilian citizenship and his relationship with a Brazilian national raised security concerns which he failed to mitigate. Adverse decision affirmed. CASENO: 08-01038.ind DATE: 07/22/2009 DATE: July 22, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01038

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Francisco Mendez, Esq., Department Counsel FOR APPLICANT Elizabeth L. Newman, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 16, 2008, 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 20, 2009, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security The Judge’s finding that Applicant promised at the earlier hearing to surrender his Brazilian passport and renounce his Brazilian citizenship is not a fair reading of the evidence. Applicant made a conditional commitment to undertake those acts if it would make a difference. There is no indication that anyone communicated to Applicant that it would, in fact, make a difference in his case. The first Judge did not rely on the conditional promises in his favorable decision. To the extent that Department Counsel’s brief argues for sustaining this finding, it is not well founded. The Board has frequently noted that conditional promises are entitled to little weight. See, e.g., ISCR Case No. 07-14151 at 3 (App. Bd. Sep. 10, 2008).

clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an information technology network administrator employed by a defense contractor. Born in the U.S. to a U.S. father and a Brazilian mother, he lived in Brazil from age 11 until age 18. At that time he returned to the U.S. to attend college. After college he lived in Brazil for three years and then returned to the U.S., where he has lived ever since. He married a Brazilian woman in the late 1980s. She is a legal resident of the U.S. and has applied for citizenship. The couple have two children, both born in the U.S. In the late 1990s, DOHA issued a SOR to Applicant, alleging security concerns similar to those at issue here. The Judge granted Applicant a security clearance. At the earlier hearing, Applicant promised to surrender his Brazilian citizenship and passport. He attempted to do so in the early 2000sbut Brazilian authorities would not permit it. While holding a U.S. security clearance, Applicant has used his Brazilian passport twice. He is also required by Brazilian law to maintain an identification card and to vote in Brazilian elections. He has voted in Brazilian presidential elections since the late 1980s. “If he fails to [do so], he will be denied his Brazilian identification card, passport, and driver’s license.” Decision at 4. In the Analysis portion of his decision, the Judge stated that “Applicant willfully continued to exercise his Brazilian citizenship knowing that it raises security concerns . . . Considering the record as a whole, I find Applicant’s behavior indicates a preference for Brazil over the United States.” Id. at 8. The Judge concluded that Applicant had “failed to mitigate the foreign preference security concern” in his case. Id. at 11. After reviewing the record, the Board concludes that, with one exception, the Judge examined the relevant data and articulated a satisfactory explanation for the 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)). The Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 11. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse 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