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ISCR Case 09-07072.a1 — CASE

ISCR Case 09-07072.a1denied

Case Headnote

ISCR Case No. 09-07072.a1

Dec 14, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, born in Belgium, was denied a security clearance primarily under Guideline C (Foreign Preference), despite favorable findings under Guideline B (Foreign Influence). The denial stemmed from the applicant's equivocal and conditional statements regarding his willingness to renounce his Belgian citizenship.

Specifically, the judge determined that the applicant's intent to renounce his dual citizenship was not unequivocal. While Disqualifying Condition C.1 was raised, Mitigating Condition C.2 was applied, but ultimately did not overcome the concerns.

The judge concluded that the applicant failed to demonstrate an unambiguous commitment to relinquish his foreign citizenship, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

C.1raisedForeign Preference

Mitigating

C.2rejectedMitigating ConditionsThe applicant's conditional willingness to renounce citizenship was not sufficient to mitigate the concerns.

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 issuedApr 30, 2010
Answer filed—
Hearing heldOct 14, 2010
Decision dateDec 14, 2010

Cite For

Equivocal Statements Regarding Renunciation of Foreign Citizenship Under Guideline C
Favorable Findings Under Guideline B Not Contested
The Standard for Granting Security Clearance Is Consistency with National Security Interests.

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 seeking a security clearance who was denied due to concerns under Guideline C (Foreign Preference) and Guideline B (Foreign Influence). The applicant argued that the Judge mis-weighed evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding the adverse ruling supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge mis-weighed the record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge's application of the pertinent mitigating conditions was erroneous.
Whole-person analysis — raised by the applicantRejected
Applicant claimed that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly applied the relevant legal standards. The Board concluded that the Judge's adverse decision was not arbitrary or capricious and was consistent with national security interests.

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
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: Equivocal nature of Applicant’s statement of willingness to renounce Belgian citizenship supports Judge’s adverse decision under Guideline C. Adverse decision affirmed. CASE NO: 09-07072.a1 DATE: 12/14/2010 DATE: December 14, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07072

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 April 30, 2010, 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 October 14, 2010, after the hearing, Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge mis-weighed the record evidence; whether the Judge’s application of the pertinent mitigating conditions was erroneous; and whether the Judge’s whole-person analysis was erroneous. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made favorable findings under Guideline B, which are not at issue in this appeal. Under Guideline C, she made the following pertinent findings of fact: Applicant is an employee of a Government contractor. He is married, with a daughter. Applicant was born in Belgium, an ally of the U.S. and a member of the European Union. Belgium has cooperated with the U.S. in military operations. Applicant moved to the U.S. to attend graduate school, earning a Ph.D. in 2004. He became a U.S. citizen in 2005, relinquishing his Belgian citizenship, as required by Belgian law. However, Belgium subsequently changed its law, permitting dual citizenship. Applicant applied to become a Belgian citizen again, in order to act as attorney-in-fact for his parents and parents-in-law, citizens and residents of Belgium. He submitted to an interview with the Belgian Consulate General, which was forwarded to a judge in Belgium, who approved Applicant’s request for citizenship. Applicant was issued a Belgian passport, valid until December 2011. He has never used the passport, has written “annulled” over each page, and has surrendered it to his facility security officer. He signed a letter stating that he was willing to renounce his dual citizenship “if required by the United States of America.” Decision at 3. In the Analysis portion of the Decision, the Judge acknowledged Applicant’s surrender of his passport. However, she also noted that Applicant had acquired his dual citizenship with Belgium by an affirmative act, rather than merely through operation of law by virtue of his birth. She stated that, while Applicant had expressed a willingness to renounce his Belgian citizenship, he had done so in a qualified manner. She stated, “He has not demonstrated he is unequivocally willing to renounce his dual citizenship.” Decision at 7. Accordingly, she denied Applicant a security clearance under Guideline C. Applicant contends that the Judge did not properly apply the Guideline C mitigating conditions. Among other things, he argues that the apparently conditional nature of his statement about giving up Belgian citizenship reflected merely a poor choice of words rather than equivocation. However, in addition to the letter which the Judge quotes (Exhibit Q), we also note Exhibit 2, Interrogatories, which contains a summary of Applicant’s security clearance interview. During this interview Applicant addressed the issue of his dual citizenship: “The subject would relinquish his citizenship and passport from Belgium if needed for his employment.” We also note his testimony: “I am partial to renouncing my Belgium citizenship. I would be willing to do so. I would need to explore the impact this has on my future dealings with my parents and parents-in-law if they were to become sick . . . and my need to act for them as power of attorney.” Tr. at 34-35. The record evidence, viewed as a whole, is consistent with the Judge’s conclusion about the equivocal nature of Applicant’s willingness to renounce his dual citizenship, and it supports her adverse finding. See, e.g., ISCR Case No. 08-05869 at 6 (App. Bd. Jul. 24, 2009) (Error for the Judge to fail to consider the equivocal nature of the applicant’s willingness to renounce Australian citizenship.) In support of his appeal, Applicant has submitted evidence not contained in the record, concerning his efforts to resolve the issue concerning his power of attorney. We cannot consider new evidence on appeal. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-05379 at 2 (App. Bd. Sep. 15, 2010). Applicant’s brief includes citations to Hearing Office cases which he contends support his case for a security clearance. We give due consideration to these cases. However, each case must be decided upon its own merits. Directive, Enclosure 2 ¶ 2(b). Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). Moreover, the cases cited by Applicant contain significant factual differences from his own, insofar as they concern instances of dual citizenship acquired by operation of law rather than by affirmative act. Additionally, one of the cases cited by Applicant was reversed on appeal. The record supports a conclusion that 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,’” both as to the mitigating conditions and the whole-person factors. 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 adverse decision is sustainable on this record. “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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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