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ISCR Case 15-08904.h1 — CASE

ISCR Case 15-08904.h1denied

Case Headnote

ISCR Case No. 15-08904.h1

deniedJul 1, 2015· Hon. Juan J. Rivera· hearing

Summary

A 60-year-old dual citizen of the United States and Canada was denied a security clearance under Guideline C (Foreign Preference). The denial stemmed from concerns regarding his Canadian citizenship and a Canadian security clearance he held for seven years, which granted him access to classified Canadian defense information.

The Statement of Reasons specifically alleged that the applicant held a Canadian security clearance enabling access to classified Canadian defense information, raising disqualifying conditions under AG ¶ 10(a)(3) and AG ¶ 10(a)(5). While mitigating conditions AG ¶ 11(b) and AG ¶ 11(e) were considered, they were ultimately deemed insufficient.

The judge determined that the applicant's foreign ties and access to Canadian classified information were not adequately mitigated. Although the applicant expressed an intent to renounce his Canadian citizenship and destroyed his Canadian passport, these actions were not considered sufficient without formal renunciation. Consequently, the applicant's security clearance was denied.

Why the Applicant Was Denied

The applicant held a Canadian security clearance that allowed access to classified Canadian information for seven years.
The applicant's expression of intent to renounce Canadian citizenship was deemed insufficient without formal action taken to effectuate that intent.
The applicant's foreign preference security concerns were not mitigated by his actions, including the destruction of his Canadian passport.

Conditions Referenced

Disqualifying

AG ¶ 10(a)(3)raisedAccepting Benefits From a Foreign Country
AG ¶ 10(a)(5)raisedUsing Foreign Citizenship to Protect Financial Interests

Mitigating

AG ¶ 11(b)rejectedWillingness to Renounce Dual CitizenshipThe applicant did not take formal steps to renounce his Canadian citizenship.
AG ¶ 11(e)rejectedPassport Has Been Destroyed or SurrenderedWhile the applicant's Canadian passport was destroyed, this action alone did not mitigate the foreign preference concerns.

Key Rule Quoted

“"Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance."”
— Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Procedural Posture

SOR issuedApr 1, 2016
Answer filedApr 15, 2016
Hearing heldJul 27, 2016
Decision dateAug 26, 2016

Cite For

Foreign Preference Security Concerns Under Guideline C
Insufficient Mitigation of Foreign Citizenship Ties
Impact of Dual Citizenship on Security Clearance Eligibility

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

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant, a dual citizen of the United States and Canada, faced foreign preference security concerns due to his acquisition of a Canadian security clearance and access to classified Canadian defense information. The judge ruled against the applicant, finding that the mitigating conditions were insufficient to alleviate the security concerns related to his foreign preference.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant holds a Canadian security clearance that enabled him to have access to classified Canadian defense information.	Against Applicant	Foreign Citizenship Acquisition or Application	Admitted	(a) applying for and/or acquiring citizenship in any other country (c) failure to use a U.S. passport when entering or exiting the U.S.	—	—

Descriptive standardized rendering of a decided public case (Guideline C). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 15-08904 ) ) Applicant for Security Clearance

For Government: John Bayard Glendon, Esq., Department Counsel For Applicant: Alan V. Edmunds, Esq.

03/29/2017 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Applicant is a dual citizen of the United States and Canada. In 2006, he moved from the United States to Canada; requested recognition as a Canadian citizen; and obtained a Canadian security clearance to enable him to work and have access to classified Canadian information. He met with high-level Canadian defense officials. He previously held a Department of Defense (DOD) top secret security clearance with access to sensitive compartmented information (SCI), and he met with high-level DOD officials. Foreign preference security concerns relating to his acquisition and use of a Canadian security clearance are not mitigated. Access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on July 24, 2014. After reviewing it and the information gathered during a background investigation, the Department of Defense (DOD) on April 1, 2016, issued a statement of reasons (SOR) to Applicant, detailing security concerns under Guideline C (foreign preference).1 Applicant answered the SOR on April 15, 2016, and requested a hearing. The case was assigned to me on June 6, 2016. On June 24, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing setting the hearing for July 27, 2016. Applicant’s hearing was held as scheduled.

At the hearing, Department Counsel offered one exhibit (GE 1); Applicant offered one exhibit with 12 tabs (AE 1, Tabs A through K); and all exhibits were admitted without objection, except Department Counsel objected to AE 1, Tab B because it was not signed and dated and also due to lack of relevance. I overruled Department Counsel’s objection because the document was some evidence that Applicant’s Canadian security clearance was no longer in effect, and his objections go to weight and not admissibility. Applicant explained the relevance of the document during his presentation. (Tr. 12-17)

Three exhibits admitted at his hearing were remarked from AE 1, Tabs J, K, and L to AE 1, Tabs V, W, and X to conform with the markings Applicant had placed on the post-hearing exhibits. On August 4, 2016, DOHA received a copy of the transcript of the hearing. Applicant provided 12 post-hearing exhibits, which were admitted without objection. (AE 1, Tabs J-U) The record closed on August 26, 2016.

FINDINGS OF FACT

Applicant admitted the allegation in SOR ¶ 1.a. His SOR and hearing admissions are incorporated into my findings of fact. After a complete and thorough review of the evidence of record, I make the following findings of fact:

Applicant is a 60-year-old employee of a DOD contractor who seeks international business on behalf of his employer. Since July 2014, he has been employed in Kuwait.

Applicant was born and educated in the United States. In 1977, he received a bachelor’s degree, and in 1980, he received two master’s degrees in aeronautical science and in business administration in aviation, both with distinction. He has never married, and he does not have any children. He has lived 51 years in the United States, 7 years in Canada, and 2 years in Kuwait. Additional information about his employment and qualifications are detailed in his resume, biography, and an article about his career. (Tr. 29-30; AE 1, Tabs, A, G, I, T)

Applicant’s father was a commander in the American Legion. He has been a member of the Sons of the American Legion for 17 years. He is also a member of the Association of the U.S. Army. He votes in U.S. elections, and he did not vote in Canadian elections. He has a leadership role in an organization similar to the U.S. Chamber of Commerce.

From 1981 to 1996, Applicant was employed in the aviation industry in the United States as a scientist, engineer, and engineering test pilot, and then he transitioned into business development or sales. From 1996 to 2004, he was employed in the financial and insurance industry in the United States. Applicant held a U.S. security clearance from 1983 to 1993, first at the secret level and later through the top-secret SCI level. He has held a U.S. security clearance for about 11 or 12 years.

Applicant is particularly proud of his contributions to the development of a U.S. Air Force bomber, fighter, and cargo plane and the NASA space shuttle during his employment by a major U.S. aviation contractor. He has thousands of hours in simulators and flight hours on various government aircraft. He said he made presentations or briefings in the Pentagon to Service Secretaries and the Secretary of Defense and in the Congress about sensitive DOD matters.

In 2006, Applicant moved to Canada because he wanted to return to the aviation business, and he was unable to find employment in the United States. From 2006 to 2009, Applicant lived and worked in Canada for a computer company in business development. He was working in Canada using a work permit. He needed a Canadian security clearance for his Canadian employment, but the Canadian Government did not recognize him as a Canadian citizen. His mother was born in Canada, and his father was born in the United States. Applicant sent his mother’s birth certificate to Canadian Government officials with a request for information on the status of his Canadian citizenship. He received proof of his Canadian citizenship retroactive to his date of birth. (Tr. 23-24, 47, 62; AE 1, Tabs N, O, P)

In 2007, Applicant obtained a Canadian security clearance to enable him to have access to and to sell high-technology product and services. He worked with key Canadian national security agencies as well as some foreign entities using his Canadian security clearance. He had professional contact with the highest levels of the Canadian Defense Staff. (Tr. 56-57, 74-75; GE 1) He did not believe there was any overlap between the information he received under his U.S. security clearance and SCI access and the information he received under his Canadian security clearance. When he left employment with Company M (the company sponsoring his Canadian security clearance), his Canadian Security clearance ended. The FSO for Company M provided some documentation to Applicant indicating his Canadian security clearance was terminated.

In 2008 or 2009, Applicant and his girlfriend purchased a condominium in Canada for $225,000. His girlfriend put $125,000 down to purchase the condominium. Applicant did not pay anything as a down payment. He owns the condominium with his girlfriend, and he values it at about $310,000. He does not have any other property in Canada. His girlfriend currently lives in Canada. On June 27, 2014, he gave a power of attorney to his girlfriend so that their condominium property in Canada could be sold.

In 2006, he opened a bank account in Canada. At his hearing, he testified that he planned to close it when his property in Canada was sold. At the time of his hearing, he had about $9,000 in his Canadian bank account. On August 9, 2016, he closed his Canadian bank account. (AE 1, Tab J) From 2009 to 2012, Applicant worked for another Canadian company in Canada in international business development. He was unemployed from April to November 2012. From November 2012 to July 2014, he was employed in Canada by a technology company in international business development. In October 2013, Applicant received a Canadian passport. He used his Canadian passport several times for international travel, including to the United States. (Tr. 54-55; AE 1, Tab U)

Applicant received employment at a U.S. company in June 2014. In July 2014, he turned in his Canadian passport to his facility security officer (FSO) and offered to renounce his Canadian citizenship. He was completing his SCA, and he realized he needed to turn-in his passport to his FSO to avoid a security concern. On August 12, 2016, his FSO received permission from Applicant to destroy his Canadian passport, and his FSO destroyed his Canadian passport. The only action he took to renounce his Canadian citizenship was notify the FSO about his intention to renounce his Canadian citizenship.2 He believed stating an intent to renounce his Canadian citizenship would suffice. (Tr. 72-75)

Two distinguished U.S. business leaders and an ambassador lauded Applicant’s diligence and patriotism. He is enthusiastic, knowledgeable, professional, reliable, responsible, ethical, and honest. Their statements support reinstatement of his security clearance. (Tr. 29-30; AE 1, Tab H)

POLICIES

Eligibility for access to classified information may be granted “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

The AG list disqualifying and mitigating conditions for evaluating a person’s suitability for access to classified information. Any one disqualifying or mitigating condition is not, by itself, conclusive. However, the AG should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Each decision must reflect a fair, impartial, and commonsense consideration of the whole person and the factors listed in AG ¶ 2(a). All available, reliable information about the person, past and present, favorable and unfavorable, must be considered.

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; AG ¶ 2(b). Clearance decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing a clearance.

ANALYSIS

Foreign Preference

AG ¶ 9 describes the foreign preference security concern stating, “when an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.”

AG ¶ 10 describes conditions that could raise a security concern and may be disqualifying in Applicant’s case:

(a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to:

(1) possession of a current foreign passport;

(2) military service or a willingness to bear arms for a foreign country;

(3) accepting educational, medical, retirement, social welfare, or other such benefits from a foreign country;

(4) residence in a foreign country to meet citizenship requirements;

(5) using foreign citizenship to protect financial or business interests in another country;

(6) seeking or holding political office in a foreign country; (7) voting in a foreign election;

(b) action to acquire or obtain recognition of a foreign citizenship by an American citizen;

(c) performing or attempting to perform duties, or otherwise acting, so as to serve the interests of a foreign person, group, organization, or government in conflict with the national security interest;

(d) any statement or action that shows allegiance to a country other than the United States: for example, declaration of intent to renounce United States citizenship; renunciation of United States citizenship.

Applicant was born in the United States and held U.S. citizenship from birth. SOR ¶ 1.a alleges and the record establishes Applicant held a Canadian security clearance that enabled him to have access to classified Canadian defense information. He obtained the Canadian security clearance after living in the United States for 51 years. His Canadian security clearance facilitated his receipt of Canadian employment and Canadian financial benefits. AG ¶ 10(a)(3) and 10(a)(5) apply.

AG ¶ 11 provides conditions that could mitigate security concerns:

(a) dual citizenship is based solely on parents’ citizenship or birth in a foreign country;

(b) the individual has expressed a willingness to renounce dual citizenship;

(c) exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor;

(d) use of a foreign passport is approved by the cognizant security authority;

(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated; and

(f) the vote in a foreign election was encouraged by the United States Government.

None of the mitigating conditions are sufficient to outweigh Applicant’s access to Canadian classified information and related employment in a Canadian defense industry for seven years.

In ISCR Case No. 08-05869 at 5 (App. Bd. July 24, 2009), the Appeal Board addressed a case where an applicant left the United States, moved to Australia, served in the Australian military, held an Australian security clearance, had children living in Australia, received Australian education benefits, voted in Australian elections, is entitled to a lump-sum Australian military pension, and used an Australian passport. The Appeal Board reversed the grant of a security clearance even though that applicant moved to the United States, renounced his Australian citizenship, divorced his Australian spouse, and surrendered his Australian passport.

While the applicant in ISCR Case No. 08-05869 had closer connections to Australia than Applicant has to Canada, it is noteworthy that the Appeal Board found AG ¶¶ 11(b) and 11(e) were insufficient to mitigate foreign preference security concerns. Here, Applicant’s destruction of his passport, termination of his Canadian security clearance, closure of his Canadian bank account, and expression of an intent to renounce his Canadian citizenship are similarly insufficient. Renunciation of Canadian citizenship is not required under AG ¶ 11(e); however, renunciation of Canadian citizenship is not difficult. Applicant did not explain why he had taken no action to effectuate his intention to renounce his Canadian citizenship. Foreign preference security concerns are not mitigated.

WHOLE PERSON CONCEPT

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, and under the whole-person concept. AG ¶ 2(c). I have incorporated my comments under Guideline C in my whole- person analysis, but some warrant additional comment.

Applicant is a 60-year-old employee of a DOD contractor who seeks international business on behalf of his employer. Applicant was born and educated in the United States. He has lived 51 years in the United States, 7 years in Canada, and 2 years in Kuwait. He lived in Canada from 2006 to June 2014.

From 1981 to 1996, Applicant was employed in the aviation industry in the United States as a scientist, engineer, and engineering test pilot. He is particularly proud of his contributions to the development of a U.S. Air Force bomber, fighter, and cargo plane and the NASA space shuttle during his employment by a major U.S. aviation contractor. He made presentations or briefings in the Pentagon to Service Secretaries and the Secretary of Defense and in the Congress about sensitive DOD matters. Applicant held a U.S. security clearance from 1983 to 1993, first at the secret level and later through the top-secret SCI level. There is no evidence of security violations. Two distinguished U.S. business leaders and an ambassador lauded Applicant’s diligence, patriotism, enthusiasm, knowledge, professionalism, reliability, responsibility, ethics, and honesty. Their statements support reinstatement of his security clearance.

The foreign preference security concerns are more substantial. In 2006, Applicant moved from the United States to Canada. He sought out and obtained recognition as a Canadian citizen. He then obtained a Canadian security clearance to enable him to work and have access to classified Canadian information. He met with high-level Canadian defense officials. The SOR did not allege that Applicant requested recognition as a Canadian citizen (to be eligible for a Canadian security clearance) or that his associations with Canadian defense officials raised a security concern. Thus, I will not consider that information except under the whole-person concept. Nevertheless, Applicant received a Canadian security clearance and for seven years he worked in and was involved with Canadian Defense industries in development or sales. This entails contacts with colleagues, employees, supervisors, competitors, and customers. In ISCR Case No. 14- 03112 at 4 (App. Bd. Nov. 3, 2015) the Appeal Board explained how such information should be considered:

An applicant’s ties, either directly or through a family member, to persons of high rank in a foreign military (such as his in-law), are of concern because it is foreseeable that through such an association the applicant could come to the attention of those interested in acquiring U.S.-protected information. See, e.g., ISCR Case No. 11-12623 at 5 (App. Bd. Feb. 2, 2015) . . . . In addition, the Judge’s conclusion that Applicant’s having served in a foreign military and having held a foreign security clearance pose a danger of a conflict of interest is supportable under the facts of this case. See, e.g., ISCR Case No. 10-00824 at 4 (App. Bd. Aug. 6, 2012) (Prior involvement with a foreign defense establishment or prior access to sensitive foreign military projects raises “significant questions that require scrutiny in evaluating an applicant’s security eligibility.”) (internal citation omitted; emphasis added)

Considering the facts and circumstances of this case in the context of the whole person, I conclude Applicant evidence is insufficient to mitigate the foreign preference security concerns.

FORMAL FINDINGS

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline C: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 The DOD acted under Executive Order (EO) 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on September 1, 2006. 2 The forms to renounce Canadian citizenship are available over the Internet. Renunciation is not complicated. A $100 fee must be paid. See Government of Canada website, http://www.cic.gc.ca/english/ citizenship/renounce-how.asp.