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ISCR Case 15-05418.a1 — CASE

ISCR Case 15-05418.a1denied

Case Headnote

ISCR Case No. 15-05418.a1

deniedSep 12, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, a U.S. citizen who also acquired Australian citizenship, was denied a security clearance under Guideline C (Foreign Preference). The denial stemmed from trustworthiness concerns related to her dual citizenship, specifically Disqualifying Condition C.1.

A key factor in the denial was the applicant's decision to obtain Australian citizenship for personal benefits. While the applicant asserted that her Australian citizenship would not affect her job duties, the board affirmed the denial.

The decision emphasized that the government is not obligated to wait for actual mishandling of classified information to make trustworthiness determinations. The mere existence of dual citizenship, particularly when acquired for personal advantage, was deemed sufficient to raise significant security concerns under Guideline C.

Why the Applicant Was Denied

The applicant's dual citizenship raised significant trustworthiness concerns under Guideline C.
The applicant's choice to obtain Australian citizenship for benefits was a key factor in the denial.
The government is not required to wait for evidence of mishandling information to deny trustworthiness.

Conditions Referenced

Disqualifying

C.1raisedForeign Preference

Key Rule Quoted

“The government need not wait until an individual mishandles or fails to safeguard protected information before it can make an unfavorable public trust decision.”
— ADP Case No. 08-07290 at 2 (App. Bd. Nov. 17, 2009)

Procedural Posture

SOR issuedMar 8, 2016
Answer filed—Applicant represented herself (pro se) in the proceedings.
Hearing heldJul 19, 2016
Decision dateSep 12, 2016Decision affirmed by the Appeal Board.

Cite For

Trustworthiness Concerns Related to Dual Citizenship Under Guideline C
Government's Authority to Deny Trustworthiness Without Evidence of Mishandling Information
Criteria for Evaluating Foreign Preference in Trustworthiness Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 argues that her dual citizenship has not caused a concern with her performance of duty. The government need not wait until an individual mishandles or fails to safeguard protected information before it can make an unfavorable public trust decision. Adverse decision affirmed. CASE NO: 15-05418.a1 DATE: 09/12/2016 DATE: September 12, 2016 In Re: ------------

Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 15-05418

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a trustworthiness designation. On March 8, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness 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 July 19, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Appellant was born in the U.S. She visited Australia after graduation, where she met her first husband. The two were divorced in the late 1990s. After the divorce, Applicant obtained Australian citizenship. She did so in order to take advantage of the Australian health care system and to qualify for an advanced degree program that would not otherwise be available to her. She has voted in Australian elections. Applicant possesses an Australian passport, which she renewed in 2010. After the hearing, Applicant notified the Judge that she had tried to surrender her passport to the Australian Consulate. She stated that the Consulate indicated that it would take the passport but would not issue a letter stating that they had done so. Her employer would not accept it either. Applicant is still in possession of the passport. The Judge’s Analysis Applicant’s Australian citizenship is not based on birth or parentage but on her own application for naturalization. She was reluctant to renounce her Australian citizenship because of benefits to which it entitled her. Applicant had exercised certain prerogatives of Australian citizenship, such as obtaining the passport, utilizing the educational benefits referenced above, and voting. She never clearly indicated that she had surrendered her passport. However, even if she had surrendered it, her having availed herself of other Australian citizenship privileges precluded a favorable conclusion.

DISCUSSION

Applicant contends that the Judge did not properly evaluate her case according to its facts but, rather, relied on regulatory technicalities. She provides an explanation and context for her circumstances, claiming that she had acquired Australian citizenship “only because her ex-husband was an Australian citizen.” Appeal Brief at 1. She also cites to her effort to surrender her passport and argues that, due to her marriage, she acquired “permanent resident”status, as a consequence of which she had no choice but to accept medical benefits. Id. at 2. She also cites to evidence that voting is a legal obligation in Australia, with a monetary penalty for those who do not do so. She reiterates information contained in the Judge’s findings of fact to the effect that she had not been successful in surrendering her passport, and she notes that she has never renounced her U.S. citizenship. We have considered Applicant’s arguments in light of the record. The evidence, including her own testimony, establish that she acquired Australian citizenship not by operation of law but by choice, in order to take advantage of that country’s health care system and educational benefits. See, for example, her answer to Department Counsel’s question about why she obtained Australian citizenship after she was divorced: “Two main reasons: One being health care; the other being education.” Tr. at 33. Some of the assertions in Applicant’s Appeal Brief do not appear consistent with her testimony at the hearing. When taken in conjunction with the other evidence referenced above, the Judge’s conclusion that none of the mitigating conditions fully apply is sustainable. Applicant’s arguments are not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. ADP Case No. 12-09387 at 2 (App. Bd. Apr. 26, 2016). Applicant states that her dual citizenship has not caused a concern with her performance of duty. The government need not wait until an individual mishandles or fails to safeguard protected information before it can make an unfavorable public trust decision. See, e.g., ADP Case No. 08- 07290 at 2 (App. Bd. Nov. 17, 2009). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. The standard applicable to trustworthiness cases is that set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) regarding security clearances: such a determination “may be granted only when ‘clearly consistent with the interests of the national security.’” See, e.g., ADP Case No. 12-04343 at 3 (App. Bd. May 21, 2013). See also Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied.

ORDER

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board