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ISCR Case 10-00286.h1 — CASE

ISCR Case 10-00286.h1granted

Case Headnote

ISCR Case No. 10-00286.h1

grantedFeb 3, 2011· Hon. Martin H. Mogul· hearing

Summary

A 25-year-old U.S. citizen, born in Mexico to a Dutch father and Mexican mother, was granted a security clearance despite concerns under Guideline C (Foreign Preference). The Statement of Reasons alleged that the applicant possessed a Dutch passport, issued in October 2008 and valid until October 2013, which he renewed after becoming a U.S. citizen on August 1, 2008. The applicant admitted renewing the passport to facilitate travel and an internship in Germany.

Disqualifying conditions related to foreign preference were raised due to his possession of the foreign passport. However, the judge applied mitigating conditions, noting that the applicant invalidated his Dutch passport prior to the hearing, demonstrating a lack of preference for foreign citizenship.

Furthermore, the applicant expressed a willingness to renounce his Dutch citizenship if required by the government. Positive character references and academic achievements also supported his case. The judge concluded that the mitigating evidence outweighed the disqualifying evidence, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant invalidated his Dutch passport, demonstrating a lack of preference for foreign citizenship.
He expressed willingness to renounce his Dutch citizenship if requested by the government.
Positive character references and academic achievements supported his case.

Conditions Referenced

Disqualifying

AG ¶ 10 (a)raisedExercise of Any Right, Privilege or Obligation of Foreign Citizenship

Mitigating

AG ¶ 11 (b)appliedThe Individual Has Taken Steps to Reduce or Eliminate the Foreign Preference
AG ¶ 11 (e)appliedThe Individual Has Expressed a Willingness to Renounce Dual Citizenship

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJun 23, 2010
Answer filedJul 12, 2010
Hearing heldNov 17, 2010
Decision dateFeb 3, 2011

Cite For

Mitigation of Foreign Preference Under Guideline C
Consideration of the Whole-person Concept in Security Clearance Decisions
Impact of Invalidating a Foreign Passport 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: granted

The judge addressed concerns regarding the applicant's foreign preference due to his possession of a Dutch passport and dual citizenship. The applicant invalidated his Dutch passport and expressed willingness to renounce his Dutch citizenship if required, leading the judge to find mitigating conditions applicable and ultimately grant the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a.1)	Possessing a passport from the Netherlands (Dutch) that was issued in about October 2008 and will not expire until October 2013.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	—
1.a.2)	Possessing a passport from the Netherlands that was issued after he became a United States citizen on August 1, 2008.	For Applicant	Foreign Passport Possession or Use	Denied	(a) applying for and/or acquiring citizenship in any other country	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	—
1.a.3)	In 2008, Applicant renewed his Dutch passport because it was easier to travel in the European Union with a Dutch passport, and it also made it easier to work as an intern on scholarship in Germany with that passport.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	—

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. 10-00286 ) ) Applicant for Security Clearance )

For Government: Melvin A. Howry, Esquire, Department Counsel For Applicant: Pro Se

February 3, 2011

______________

STATEMENT OF CASE

______________

MOGUL, Martin H., Administrative Judge:

On June 23, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline C for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

On July 12, 2010, Applicant replied to the SOR (RSOR) in writing, and he requested a hearing before an Administrative Judge. I received the case assignment on September 24, 2010. DOHA issued a notice of hearing on October 29, 2010, and I convened the hearing as scheduled on November 17, 2010. The Government offered Exhibits 1 through 4, which were received and admitted without objection. Applicant testified on his own behalf and submitted Exhibits A through G, which were also admitted without objection. DOHA received the transcript of the hearing (Tr) on December 1, 2010. I granted Applicant’s request to keep the record open until December 8, 2010, to submit additional documents. Applicant timely submitted three additional documents, which have been identified and entered into evidence collectively as Exhibit H. Based upon a review of the pleadings, exhibits, and the testimony of Applicant, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his RSOR, Applicant admitted SOR allegations 1.a. 1) and 3), and he denied 1.a. 2). The admitted allegations are incorporated herein as findings of fact.

After a complete and thorough review of the evidence in the record, including Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon due consideration of that evidence, I make the additional findings of fact:

Applicant is 25 years old. His mother was born in Mexico, and his father is from the Netherlands. Applicant’s parents now reside in the United States. Applicant was born in Mexico, where he lived for a few months, when he moved to the Netherlands with his parents. After two years, Applicant moved with his parents back to Mexico. In approximately 1990, after one year in Mexico, Applicant moved with his parents to the United States, and he has lived in the U.S. since then. Applicant became a United States citizen on February 27, 2001, under the child citizen act, because his mother became a United States citizen on September 28, 1990. Applicant also been a Mexican citizen since birth. His father became a United States citizen on June 25, 2005.

Applicant has two brothers, ages 22 and 15; the older was born in Mexico and the younger was born in the United States. Both of his brothers are United States citizens and reside in the United States. Applicant is not married and has no children.

Applicant is employed by a defense contractor, and he seeks a DoD security clearance in connection with his employment in the defense sector.

Paragraph 1 (Guideline C - Foreign Preference)

1.a. It is alleged in the SOR that Applicant exercised dual citizenship by:

1) Possessing a passport from the Netherlands (Dutch) that was issued in about October 2008 and will not expire until October 2013. Applicant testified that he is a Dutch citizen solely because his father is a Dutch citizen, and he first received the Dutch passport through an application by his father.

2) Possessing a passport from the Netherlands that was issued after he became a United States citizen on August 1, 2008. Applicant testified that he actually became a United States citizen on February 27, 2001, rather than August 1, 2008. The SOR was amended to reflect that Applicant became a citizen on February 27, 2001, and Applicant thereafter admitted this allegation. (Tr at 24.) In 2008, Applicant renewed his Dutch passport because it was easier to travel in the European Union with a Dutch passport, and it also made it easier to work as an intern on scholarship in Germany with that passport. (Tr at 37-38.)

2) Using a passport from the Netherlands instead of his United States passport, after he became a United States citizen, for travel to Europe from the United States and between European countries.

Applicant testified that in May or June 2010, he contacted a representative from the Dutch embassy that he wanted to have his Dutch passport invalidated. He sent his passport to them, and holes were punched in it by the Dutch Government to invalidate it. (Tr at 39-42.) Exhibit A consists of a copy of the invalidated Dutch passport.

While it was not listed on the SOR, Applicant did previously have a Mexican passport, but he testified that it expired in 1991, and he never renewed it. The only passport he continues to maintain is the one from the United States, which does not expire until August 3, 2013. (Tr at 43-44.) Applicant indicated that he had not considered renouncing his Dutch citizenship since no mention was made in the SOR of his Dutch citizenship, but if the Government wanted him to renounce his Dutch citizenship he would be willing to do so. (Tr at 64.)

Applicant has not taken part in any Dutch elections. He does not own any property there or stand to inherit anything in the Netherlands. He also testified that he has registered with the Selective Service in the United States. (Tr at 73.)

Mitigation

Applicant submitted four positive character letters in Exhibit H. The first letter was from a co-worker, who described Applicant as “very trusting, reliable, loyal, and conscientious towards his work.” A second letter was from a former high school teacher of Applicant, who has known Applicant for approximately 10 years. He wrote that Applicant “always exhibited the highest standards of integrity and moral character.” Applicant was also described in extremely laudatory terms by a former supervisor in college and by an attorney, who is a friend of Applicant’s family.

Applicant also submitted his academic transcript, confirming that he graduated Cum Laude in 2007 with a Bachelor of Science Degree in Aerospace Engineering, and in 2008 he received a Master of Science Degree in Aerospace Engineering.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline C, Foreign Preference

Under AG ¶ 9 the security concern involving foreign preference arises, “[W]hen 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.” Applicant’s application and receipt of a passport from the Netherlands raises foreign preference concerns under Disqualifying Condition AG ¶ 10 (a) as the “exercise of any right, privilege or obligation of foreign citizenship.”

However, Applicant did invalidate his foreign passport, by delivering it to a Dutch government representative, who then invalidated it. While Applicant did not renounce his Dutch citizenship to the authorities, he did indicate that he would do so if it was requested of him. Therefore, I find that Mitigating Conditions AG ¶ 11 (b) and (e) apply to this case. After considering all of the evidence of record under Guideline C, I conclude that the mitigating evidence substantially outweighs the disqualifying evidence.

WHOLE PERSON CONCEPT

Under the whole-person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2 (c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case under Guideline C. Based on all of the reasons cited above as to why the Mitigating Conditions apply, considered with the very laudatory descriptions of Applicant from the writers of the submitted letters, plus his excellent college records, I find that the evidence leaves me with no significant questions or doubts as to Applicant’s eligibility and suitability for a security clearance under the whole-person concept. For all these reasons, I conclude Applicant has mitigated the 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: FOR APPLICANT

Subparagraphs 1.a.1) - 3): For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

Martin H. Mogul Administrative Judge