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ISCR Case 08-03389.a1 — CASE

ISCR Case 08-03389.a1denied

Case Headnote

ISCR Case No. 08-03389.a1

Mar 11, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen was denied a security clearance under Guideline C (Foreign Preference). The denial stemmed from several disqualifying conditions, including the applicant's acquisition of Mexican citizenship after becoming a U.S. citizen.

Further concerns were raised by the applicant's ownership of property in Mexico and his participation in Mexican elections. These actions collectively indicated a foreign preference that the security clearance judge determined posed an unacceptable risk.

The applicant presented arguments for mitigation, but these were deemed insufficient to overcome the security concerns. Consequently, the appeal board affirmed the denial of the security clearance, concluding that the applicant had failed to mitigate the issues raised by his foreign preference.

Conditions Referenced

Disqualifying

AG ¶ 9raisedForeign Preference

Key Rule Quoted

“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)

Procedural Posture

SOR issuedJul 15, 2008
Answer filed—
Hearing heldJan 14, 2009
Decision dateMar 11, 2009

Cite For

Security Concerns Related to Foreign Citizenship Under Guideline C
Insufficient Mitigation of Foreign Preference Issues
Standards for Evaluating 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 concerns under Guideline C regarding foreign preference. The applicant argued that the decision was arbitrary and capricious, but the Board affirmed the denial, finding that the Judge properly weighed the evidence and explained his decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCharles D. Ablard — 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 is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the evidence and articulated a satisfactory explanation for his decision, affirming that the adverse decision was sustainable based on the security concerns raised.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Michael D. Hipple
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’s acquisition of Mexican citizenship after becoming a U.S. citizen, his ownership of property in Mexico, and his voting in Mexican elections raised security concerns which he failed to mitigate. Adverse decision affirmed. CASENO: 08-03389.a1 DATE: 03/11/2009 DATE: March 11, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03389

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 15, 2008, 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 January 14, 2009, after the hearing, Administrative Judge Charles D. Ablard The Judge found Applicant applied for Mexican citizenship in 2003 after having become a naturalized U.S. citizen in 1993. He obtained a document identifying him as a Mexican citizen residing abroad for use in traveling to and from Mexico. He also owns property in Mexico and voted in the 2006 Mexican presidential elections. 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 issue on appeal: whether the Judge’s adverse security clearance decision under Guideline C is arbitrary, capricious, or contrary to law. Applicant asks that the Judge’s adverse security clearance decision be reversed, arguing that he is willing to renounce his Mexican citizenship. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. 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. A party’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. See, e.g., ISCR Case No. 07-05632 at 2 (App. Bd. May 13, 2008). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the 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 3 (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)). “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). Accordingly, the Judge’s adverse decision is sustainable.

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: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board