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ISCR 07-14151.a1: Guideline C security clearance appeal (2008) · CASE

ISCR Case 07-14151.a1unknown

Case headnote

ISCR Case No. 07-14151.a1

Sep 10, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case involved a U.S. citizen by birth who also acquired Mexican citizenship in 2001 to facilitate property acquisition and subsequently applied for voting rights in Mexico. These actions raised concerns under Guideline C (Foreign Preference) and Guideline F (Financial Considerations).

The Appeal Board ultimately reversed a favorable security clearance decision. The primary issue was the applicant's foreign preference, specifically her acquisition of Mexican citizenship and pursuit of voting rights. While the applicant expressed a willingness to renounce her Mexican citizenship, this willingness was deemed conditional and insufficient to mitigate the security concerns under Guideline C.

Consequently, no security clearance was granted. The Board found that the applicant's actions demonstrated a foreign preference that was not adequately mitigated by her conditional offer to renounce her Mexican citizenship.

Conditions referenced

Disqualifying

Guideline CraisedForeign Preference
FPMC 11(b)raisedWillingness to Renounce Dual Citizenship

Mitigating

FPMC 11(b)rejectedWillingness to Renounce Dual CitizenshipThe applicant's conditional willingness to renounce her citizenship was not sufficient to mitigate the concerns.

Key rule quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

Procedural posture

SOR issuedFeb 29, 2008
Answer filed—Applicant requested a decision on the written record.
Hearing held—Decision made based on written record.
Decision dateSep 10, 2008Appeal Board reversed the favorable decision.

Cite for

Reversal of Favorable Security Clearance Due to Foreign Preference Concerns
Conditional Willingness to Renounce Citizenship Insufficient for Mitigation
Strong Presumption Against Granting Security Clearance When Concerns Arise.

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

Reversed

The appeal involved a security clearance decision where the Administrative Judge granted the applicant a clearance based on a conditional willingness to renounce Mexican citizenship. The Department Counsel appealed, arguing that the Judge misapplied the mitigating condition. The Board reversed the decision, finding that the Judge's conclusions were not supported by the evidence.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowHenry Lazzaro granted the clearance

Decided onthe written record

Guidelines belowGuideline C

What the Board reviewed

Mitigation wrongly applied / not applied, raised by the Government (Department Counsel)Error sustained
The Judge's favorable application of Foreign Preference Mitigating Condition is unsupported by record evidence.

Why the Board ruled this way

The Board found that the Judge's favorable decision was unsupported by substantial evidence and that the applicant's conditional willingness to renounce her Mexican citizenship did not meet the burden of persuasion for mitigation.

No rational connection between facts and conclusion

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)
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 DIGEST: In 2001 Applicant applied for and received Mexican citizenship in order to purchase property in Mexico. Applicant applied for voting rights in Mexico in order to obtain an identification card proving Mexican citizenship. There is a paucity of mitigating evidence Favorable decision reversed. CASENO: 07-14151.a1 DATE: 09/10/2008 DATE: September 10, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-14151

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 February 29, 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 decision on the written record. On May 30, 2008, after considering the record, Administrative Judge Henry Lazzaro granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s favorable application of Foreign Preference Mitigating Condition (FPMC) 11(b) is unsupported by record evidence. Finding error, we reverse. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant is a U.S. citizen by birth. Her parents were citizens of Mexico. Her father is now deceased, and her mother is a naturalized U.S. citizen who lives with Applicant in the U.S. Applicant’s husband was born in Mexico but has been a U.S. citizen since 1977. In 2001 Applicant applied for, and received, Mexican citizenship. She did so in order to purchase property in Mexico, currently worth about $15,000.00, for the purpose of eventually constructing a vacation home on it. Applicant applied for voting rights in Mexico in order to obtain an identification card proving her Mexican citizenship and in order to secure ownership of the land. She has not actually voted in Mexican elections. Applicant has no other connections to Mexico. “She asserts that her sole loyalty is to the United States and she is willing to renounce her Mexican citizenship if it is a condition of her obtaining a security clearance.” Decision at 3. B. Discussion The Appeal Board’s review of the Judge’s findings of fact is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel has not challenged the Judge’s findings of fact. Applicant did not file a brief on appeal. Therefore, the Judge’s findings of fact are not an issue in this appeal. Whether the Record Supports the Judge’s Ultimate Conclusions Directive ¶ E2.11(b): “[T]he individual has expressed a willingness to renounce dual citizenship[.]” This mitigating condition is unchanged from the previous version of the Adjudicative Guidelines, found at Directive ¶ E2.A3.1.3.4. See ISCR Case No. 06-23453 at 4 (App. Bd. Nov. 14, 2007) (Prior precedent “remains valid where the applicable language of the guideline is unchanged or the changes are not of sufficient magnitude to vitiate or overrule the substance of the precedent.”) A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices 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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The Judge concluded that Applicant, by stating she would renounce her Mexican citizenship, had met her burden of persuasion as to mitigation under Foreign Preference Mitigating Condition 11(b). The Chief Department Counsel argues that Applicant’s willingness to renounce is conditional and, therefore, entitled to less weight than an expression of unconditional willingness to do so. See, e. g., ISCR Case No. 99-0295 (App. Bd. Oct. 20, 2000). See ISCR Case No. 01-16098 at 3 (App. Bd. May 29, 2003). The Board has considered the Judge’s decision in light of his unchallenged findings of fact. Applicant chose to have the case decided upon the written record, with the result that her credibility could not be evaluated in the context of a hearing. See ISCR Case No. 08-00899 at 3 (App. Bd. Jul. 29, 2008). Applicant did not to reply to the Government’s File of Relevant Material; nor did she submit a reply brief on appeal. Given the Judge’s unchallenged findings that Applicant actively acquired Mexican citizenship and that she registered to vote in Mexico; his unchallenged finding that she expressed merely a conditional willingness to renounce her Mexican citizenship; and the paucity of record evidence as to mitigation, the Board concludes that, on the facts of this case, Applicant has failed to meet her burden of persuasion under the Egan standard. See ISCR Case No. 99-0511 at 9 (App. Bd. Dec. 19, 2000) (The weight reasonably to be assigned an applicant’s willingness to renounce foreign citizenship should be determined in the context of the “clearly consistent with the national interest” standard.) The record, viewed as a whole, will not sustain the Judge’s favorable decision.

ORDER

The Judge’s favorable security clearance decision is REVERSED.

Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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