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ISCR 15-00424.a1: Guideline C security clearance appeal, denied (2016) · CASE

ISCR Case 15-00424.a1denied

Case headnote

ISCR Case No. 15-00424.a1

Apr 20, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied under Guideline C (Foreign Preference) for an applicant who held dual citizenship with the U.S. and Ireland. The denial was primarily based on the applicant's use of a foreign passport, which raised disqualifying conditions C.1 and C.2.

While the applicant surrendered the foreign passport, applying mitigating condition C.3, this action was deemed insufficient to resolve the security concerns. The judge determined that the applicant's explanations for acquiring dual citizenship did not meet the burden of persuasion.

Ultimately, the appeal board upheld the denial, concluding that the surrender of the passport did not adequately mitigate the security risks associated with the applicant's dual citizenship and prior foreign passport usage.

Conditions referenced

Disqualifying

C.1raisedThe Individual Has Dual Citizenship.
C.2raisedThe Individual Has Used a Foreign Passport.

Mitigating

C.3rejectedThe Individual Has Taken Steps to Mitigate the Foreign Preference Concerns.The judge concluded that merely surrendering the passport 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 issuedJul 25, 2015
Answer filed—
Hearing heldFeb 10, 2016
Decision dateApr 20, 2016

Cite for

Foreign Preference Concerns Under Guideline C
Insufficient Mitigation of Dual Citizenship Issues
Whole-person Analysis in Security Clearance 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 involved a denial of a security clearance based on concerns under Guideline C (Foreign Preference). The applicant argued that the Judge erred in the mitigation analysis of his foreign passport and in the whole-person analysis. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White denied the clearance

Decided onthe written record

Guidelines belowGuideline C

What the Board reviewed

Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge erred in his mitigation analysis regarding his foreign passport.
Whole-person analysis, raised by the applicantRejected
Applicant contended that the Judge's whole-person analysis failed to address the totality of the evidence.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's foreign citizenship and passport usage were consistent with the record and that the applicant did not provide sufficient evidence to mitigate the government's concerns.

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 Ra’anan (Chair)
James E. Moody
James F. Duffy

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: Applicant argues that the Judge erred in his mitigation analysis, of Applicant’s foreign passport. The Judge concluded that concerns arising from Applicant’s having applied for and having received foreign citizenship and having used a foreign passport multiple times were not adequately mitigated Applicant having turned his passport over to his FSO for the duration of his current employment. This conclusion is consistent with the record. Adverse decision affirmed. CASENO: 15-00424.a1 DATE: 04/20/2016 DATE: April 20, 2016 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00424

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 security clearance. On July 25, 2015, 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 a decision on the written record. On February 10, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White 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’s application of the mitigating conditions was erroneous and whether the Judge’s whole-person analysis failed to address the totality of the evidence. Consistent with the following, we affirm. The Judge’s Findings of Fact In 2004, while he was in college, Applicant applied for dual citizenship with Ireland, in order better to understand his family history and to gain employment opportunities in Europe. In 2008, Applicant was granted Irish citizenship and issued a passport that will expire in 2018. Applicant used his Irish passport for foreign travel four times in 2010 and 2011, though he never went to Ireland. Applicant’s wife is also a dual citizen of the U.S. and the United Kingdom. In 2012, during a prior employment, Applicant revealed his dual citizenship and Irish passport on his security clearance application (SCA). After he completed it, he became aware that his passport could be of security concern, so he surrendered it to the facility security officer (FSO) for the duration of his employment. When he left the company, he obtained his passport, and his FSO submitted an incident report. After he began working for his current employer he again surrendered his passport to the FSO “for safe keeping and return to him upon his request.” Decision at 3. Applicant formally acknowledged that the return of the document would generate an incident report which could result in revocation of his clearance. There is no evidence in the record concerning the quality of Applicant’s work performance, his track record with handling sensitive information, or his history of compliance with security procedures. The Judge’s Analysis The Judge found that Applicant had provided little evidence in mitigation, except for his conditional surrender of his foreign passport to the FSO. He concluded that this was not sufficient to outweigh the Government’s concerns about Applicant’s foreign preference. In the whole-person analysis, the Judge stated that Applicant’s explanations for his acquisition of dual citizenship were insufficient to meet his burden of persuasion.

DISCUSSION

In presenting his appeal arguments, Applicant contends that the Judge failed to consider all of the evidence in the record. He argues that a JPAS entry about him having left his prior employer on good terms undermines the Judge’s finding that he had presented nothing about his work performance. He also argues that his 2012 SCA investigation included interviews with family members and other persons, which would support a favorable finding about his character.1 Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Moreover, the Judge’s whole-person analysis complies with the requirements of Directive ¶ 6.3, in that the Judge considered the totality of the evidence in reaching his decision. See, e.g., ISCR Case No. 14-02806 at 4 (App. Bd. Sep. 9, 2015). Applicant argues that the Judge erred in his mitigation analysis, in particular in his treatment of Applicant’s passport.2 The Judge concluded, in essence, that concerns arising from Applicant’s having applied for and having received foreign citizenship and having used a foreign passport multiple times were not adequately mitigated merely by showing that Applicant had turned his passport over to his FSO for the duration of his current employment. This conclusion is consistent with the record. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael 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

FOOTNOTES

1 Applicant’s brief asserts that this investigation resulted in the grant of a clearance. There is nothing in the record that explicitly supports this assertion.

2 The record shows that Applicant’s clearance was approved in September 2007 (Item 4, SCA, at 62), and the Judge found Applicant’s Irish citizenship was granted in 2008.