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ISCR Case 12-07667.a1 — CASE

ISCR Case 12-07667.a1unknown

Case Headnote

ISCR Case No. 12-07667.a1

Mar 11, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

This case involved a 29-year-old applicant who held dual citizenship with Pakistan and the U.S., raising security concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) due to his possession of a Pakistani passport.

While the judge found favorable evidence regarding foreign influence under Guideline B, the applicant failed to provide corroborating evidence that he had relinquished his Pakistani passport. Despite being given an opportunity to do so, this lack of evidence was a disqualifying condition under Guideline C.

Consequently, no final security clearance decision was reached. The case was remanded for further processing to address the outstanding issue of the Pakistani passport relinquishment.

Conditions Referenced

Disqualifying

CappliedForeign PreferenceThe applicant's continued possession of a Pakistani passport raised security concerns.

Mitigating

BappliedForeign InfluenceThe judge found favorable evidence under Guideline B, which was not contested.

Procedural Posture

SOR issuedAug 6, 2012
Answer filed—
Hearing heldDec 12, 2012
Decision dateMar 11, 2013Remanded for further processing.

Cite For

Issues of Due Process in Security Clearance Cases
The Importance of Corroborating Evidence in Mitigating Security Concerns
Remand Procedures for Further Processing in Security Clearance Appeals.

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

Remanded

The appeal involved a denial of security clearance based on concerns under Guideline B and Guideline C. The Applicant argued that the Judge did not consider all evidence and failed to apply mitigating conditions. The Board remanded the case for further processing regarding the corroboration of the Applicant's claim to have relinquished his Pakistani passport.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Due-process / fairness — raised by the applicantNot reached
Applicant argued that the Judge failed to consider all evidence and properly apply mitigating conditions.
Judge mis-weighed or ignored evidence — raised by the applicantNot reached
Applicant contended that the Judge did not properly evaluate the evidence regarding his relinquished passport.

Why the Board ruled this way

The Board found that there were reasonable questions regarding whether the Applicant made a good-faith effort to provide evidence to the Judge, necessitating a remand for further processing.

On remand, the judge must

The Judge is to further process the case regarding the corroborating evidence of the Applicant's relinquished passport.

Standard of review applied

No new evidence on appealNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
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: The briefs and attachments raise a a reasonable question as to whether Applicant made a good-faith effort to provide evidence to the Judge. Adverse decision remanded. CASENO: 12-07667.a1 DATE: 03/11/2013 DATE: March 11, 2013 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-07667

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Paula E. Phinney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 6, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On December 12, 2012, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Matthew E. Malone 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 considered all of the evidence and whether the Judge failed properly to apply mitigating conditions. The Judge’s favorable findings under Guideline B are not at issue in this appeal. Consistent with the following, we remand the case to the Judge. The Judge’s Findings of Fact Applicant is a 29-year-old dual citizen of Pakistan and the U.S. Born in Pakistan, he emigrated to the U.S. in the late 1990s, becoming a citizen of this country in the mid-2000s. He obtained a U.S. passport a few months after his naturalization. He also held a Pakistani passport, which he had renewed in the early 2000sand again five years later. This current Pakistani passport will expire at the end of 2013. Applicant advised an OPM investigator that he would relinquish his Pakistani passport, stating that he had no plans to use it in the future. He testified at the hearing that he had relinquished the passport to his security officer at the beginning of a deployment in support of U.S. military operations. At the close of the hearing, the Judge held the record open to give Applicant an opportunity to provide information about his foreign passport. He was advised that the status of his Pakistani passport should be documented in the post-hearing submissions. However, Applicant provided no corroborating evidence concerning his claim to have surrendered his passport. The Judge’s Analysis The Judge concluded that Applicant’s continued possession of a Pakistani passport raised security concerns under Guideline C. The Judge stated that he found Applicant to be credible and straightforward in his claim to have relinquished his passport. However, the Judge stated that Applicant’s failure to corroborate this claim, despite having been given an opportunity to do so, vitiated his case for mitigation. “Because Applicant did not document the status of his Pakistani passport, I conclude . . . that he has not mitigated the securing concern under this guideline.” Decision at 10.

DISCUSSION

In arguing his first assignment of error, Applicant has raised an issue of due process. In doing so, he has asserted facts outside the record, as has the Chief Department Counsel in his Reply Brief. We are not permitted to consider new evidence on appeal. Directive ¶ E3.1.29. However, in appropriate cases, we have considered matters outside the record to the extent that they bear upon questions of due process or jurisdiction. See, e.g., ISCR Case No. 10-01400 at 3 (App. Bd. Jan. 3, 2013). In this case, Applicant has attached to his Appeal Brief documents purporting to corroborate his claim to have relinquished his passport. In addition, he has included an e-mail transmission, dated November 15, 2012, which was before the close of the record. This transmission has as its subject “Passport Reference” and it states that it contained an attachment. It appears originally to have been sent from Applicant’s security manager in a combat zone to Applicant, who then forwarded it to DOHA personnel. It provides no further indication of its contents, and there is nothing explicitly to demonstrate that it contained the evidence attached to the Brief. The Chief Department Counsel asserts unequivocally that no one at DOHA, to include the Department Counsel assigned to the case, received the documents at issue here. However, the briefs of the parties and the matters attached thereto raise a reasonable question as to whether Applicant made a good-faith effort to provide corroborating evidence to the Judge, a question that we are not able to resolve based on the information before us. Accordingly, we conclude that the best resolution of this case is to remand it to the Judge for further processing. The other issues raised by Applicant are not ripe for consideration.

ORDER

The Decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board