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ISCR Case 14-02025.a1 — CASE

ISCR Case 14-02025.a1denied

Case Headnote

ISCR Case No. 14-02025.a1

May 12, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance was denied to an applicant who held dual citizenship with the United States and the United Kingdom, based on concerns under Guideline C (Foreign Preference). The applicant's military service and family connections in the U.S. were noted, but these factors did not sufficiently mitigate the core issues.

The denial stemmed from the applicant's unwillingness to renounce his dual citizenship or demonstrate an intent to invalidate or surrender his British passport. The judge determined that possessing a foreign passport constituted an active exercise of foreign citizenship, raising disqualifying conditions C.1 and C.2.

While mitigating conditions C.3 and C.4 were considered, they were not enough to overcome the judge's doubts regarding the applicant's eligibility. Ultimately, the lack of a clear commitment to sever ties with his foreign citizenship and passport led to the denial of the security clearance.

Conditions Referenced

Disqualifying

C.1raisedDual Citizenship
C.2raisedForeign Preference

Mitigating

C.3rejectedWillingness to Renounce Dual CitizenshipThe applicant expressed no willingness to renounce his dual citizenship.
C.4rejectedDestruction or Surrender of Foreign PassportThe applicant expressed no willingness to destroy or surrender his British passport.

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 11, 2014
Answer filed—Applicant requested decision on written record.
Hearing heldFeb 12, 2015
Decision dateMay 12, 2015Appeal affirmed.

Cite For

Denial of Security Clearance Based on Dual Citizenship Under Guideline C
Insufficient Evidence of Renunciation of Foreign Citizenship as a Mitigating Factor
Presumption of Good Faith in DOHA Judges' 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 was filed by the applicant after the Department of Defense denied his request for a security clearance based on concerns under Guideline C (Foreign Preference). The applicant argued that the Judge's decision was arbitrary and did not adequately consider his background. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPersonal representative

Judge belowRichard A. Cefola — denied the clearance

Decided onthe written record

Guidelines belowGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, with a rational connection between the facts found and the choice made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael 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 DIGEST: There is a presumption of good faith and regularity on the part of DOHA judges as they decide cases. Adverse decision affirmed. CASENO: 14-02025.a1 DATE: 05/12/2015 DATE: May 12, 2015 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02025

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Personal Representative (Redacted) The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 11, 2014, DoD 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 that the case be decided on the written record. On February 12, 2015, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable security clearance decision. The Judge made the following findings: Applicant immigrated to the United States from Scotland in 1965. He enlisted in the United States Air Force and served honorably for 20 years. He became a naturalized U.S. citizen in 1986. He is a dual national of the United States and the United Kingdom. In 2009 he renewed his expired British passport. Applicant avers that he would only use his British passport should an emergency arise while his daughter is in Scotland as he wants to be able to get to her as quickly and as efficiently as possible. In his response to the government’s File of Relevant Material, he states that he has no intention of using the passport. Applicant’s British passport expires in 2019. The Judge reached the following conclusions: Where an individual has expressed a willingness to renounce dual citizenship, that factor is mitigating. However, Applicant expressed no such willingness. The destruction of a foreign passport, or surrendering it to a cognizant security authority or otherwise invalidating it is also mitigating. Applicant has expressed no such willingness to destroy, surrender, or invalidate his British passport. The record evidence establishes doubts as to Applicant’s eligibility and suitability for a security clearance. Applicant argues that the Judge did not adequately address the whole-person factors listed in the Directive, and did not consider a number of factors in Applicant’s background other than his 20 years of U.S. military service, such as his continued service to the U.S. government after military retirement, the fact that his wife and daughter were born in the United States, and the fact that Applicant is a citizen of Scotland by birth only. Applicant fails to establish error on the part of the Judge. There is a presumption in favor of regularity and good faith on the part of DOHA judges as they engage in the process of deciding cases. See, e.g., ISCR Case No. 99-0019 at 5 (App. Bd. Nov. 22, 1999). Moreover, the Judge specifically listed the nine general adjudicative factors listed at ¶ 2(a) of the Directive in his decision. He was not required to apply specifically each factor to the facts of the case. There is also a presumption that the Judge has considered all the evidence in the record unless he specifically states otherwise. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb 20, 2009). The Board finds no reason to believe that the Judge did not properly weigh the evidence or that he failed to consider all the evidence of record. See, e.g., ISCR Case No. 11-06622 at 4 (App. Bd. Jul. 2, 2012). Contrary to Applicant’s argument on appeal, his possession of a foreign passport is an exercise of foreign citizenship. See Directive, Enclosure 2, ¶ 10(a)(1). The Board does not review a case de novo. The favorable 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). After reviewing the record, the Board concludes 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.’” 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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed; Michael Ra’anan Michael 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