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ISCR Case 10-07725.h2 — CASE

ISCR Case 10-07725.h2denied

Case Headnote

ISCR Case No. 10-07725.h2

deniedJul 1, 2010· Hon. Juan J. Rivera· hearing

Summary

A 24-year-old U.S. citizen and accounting technician was denied a security clearance under Guideline C (Foreign Preference) due to concerns related to her Mexican citizenship and passport. At age 22, the applicant acquired Mexican citizenship and a valid Mexican passport.

The Statement of Reasons alleged that she requested her Mexican citizenship and passport at age 22 and was unwilling to surrender her passport or renounce her foreign citizenship. Disqualifying conditions under Adjudicative Guideline (AG) ¶ 10(a) and AG ¶ 10(b) were raised. While AG ¶ 11(b) was applied as a mitigating condition, it was ultimately insufficient.

The denial was based on the applicant's acquisition of Mexican citizenship and a passport, which indicated a preference for a foreign country. She initially refused to renounce her Mexican citizenship or surrender her passport, citing personal reasons, and failed to provide evidence that she was no longer in possession of her Mexican passport.

Why the Applicant Was Denied

The applicant acquired Mexican citizenship and a passport at age 22, indicating a preference for a foreign country.
She initially refused to renounce her Mexican citizenship or surrender her passport, citing personal reasons.
The applicant did not provide evidence that she is no longer in possession of her Mexican passport.

Conditions Referenced

Disqualifying

AG ¶ 10(a)raisedExercise of Any Right, Privilege or Obligation of Foreign Citizenship After Becoming a U.S. Citizen
AG ¶ 10(b)raisedAction to Acquire or Obtain Recognition of a Foreign Citizenship by an American Citizen

Mitigating

AG ¶ 11(b)appliedThe Individual Has Expressed a Willingness to Renounce Dual CitizenshipThe applicant stated her willingness to renounce her Mexican citizenship but did not provide evidence of doing so.

Key Rule Quoted

“"Security clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedOct 26, 2011
Answer filedMar 6, 2012Applicant elected to have her case decided on the written record.
Hearing held—Case was remanded to allow for consideration of additional evidence.
Decision dateSep 28, 2012

Cite For

Foreign Preference Disqualifying Conditions Under Guideline C
Impact of Dual Citizenship on Security Clearance Eligibility
Requirements for Mitigating Foreign Preference Concerns

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 U.S.-born citizen, applied for Mexican citizenship and a passport, indicating a preference for a foreign country. Although she later expressed a willingness to renounce her foreign citizenship and surrender her passport, she failed to provide evidence of having done so. The judge found the foreign preference concerns were not mitigated, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant requested her Mexican citizenship and passport at age 22.	Against Applicant	Foreign Citizenship Acquisition or Application	Admitted	(a) applying for and/or acquiring citizenship in any other country (b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.b	Applicant was unwilling to surrender her passport or to renounce her foreign citizenship.	Against Applicant	Failure to Renounce or Surrender Foreign Status	Admitted	(a) applying for and/or acquiring citizenship in any other country (b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than 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. 10-07725 ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Pro se

09/28/2012 __________

Remand Decision __________

RIVERA, Juan J., Administrative Judge:

Applicant, a U.S.-born citizen, requested her Mexican citizenship and passport at age 22. She was made aware that her actions indicate a preference for a foreign country over the United States. She initially was unwilling to surrender her passport (valid until 2015), or to renounce her foreign citizenship, because she wanted to work and live in Mexico along with her Mexican family members and friends. In May 2012, she stated her willingness to renounce her foreign citizenship and to surrender her foreign passport. She failed to provide evidence that she is no longer in possession of a foreign passport. Clearance is denied.

STATEMENT OF CASE

Applicant submitted a security clearance application (SCA) on March 5, 2010. On October 26, 2011, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) listing security concerns under Guideline C (Foreign Preference).1 Applicant answered the SOR on March 6, 2012, and elected to have her case decided on the written record in lieu of a hearing.

A copy of the file of relevant material (FORM), dated April 19, 2012, was provided to her by transmittal letter dated April 19, 2012. Applicant acknowledged she received the FORM on April 30, 2012. She was allowed 30 days to submit any objections to the FORM and to provide material in extenuation and mitigation. The case was assigned to me on June 21, 2012.

On June 26, 2012, I denied Applicant’s request for a security clearance. Applicant appealed and alleged that she submitted a document in response to the FORM that was not considered by me before my decision was issued. On August 17, 2012, the Appeal Board remanded the case to allow for an equitable resolution of this case by granting Applicant the opportunity to present the omitted document.

On August 21, 2012, Applicant emailed the missing document (a one-page statement, dated May 14, 2012, marked Appellate Exhibit 1).2 Applicant’s May 14, 2012 letter was fully considered by me before writing this decision.

FINDINGS OF FACT

Applicant admitted all the factual allegations in the SOR. Her admissions are incorporated as findings of fact. After a thorough review of the evidence of record, including her SCA, her answers to the SOR, her April 2010 statement to a government investigator, and her May 14, 2012 written statement, I make the following additional findings of fact.

Applicant is a 24-year-old employee of a defense contractor. She has never been married, and she has no children. Applicant’s mother was born in Mexico, and she is a registered alien living in the United States. Applicant’s father is a U.S. citizen. Applicant was born and raised in the United States. She graduated from a U.S. high school in June 2005, and was awarded a bachelor’s degree from a U.S. university in August 2009. Applicant started working for her current employer, a government contractor, in February 2010. She is an accounting technician.

In her March 2010 SCA, Applicant disclosed that she travelled to Mexico in 2006, 2007 (twice), 2008, and 2009 (twice). The first six times she used her U.S. passport to travel to Mexico. She visited family members and friends who are citizens and residents of Mexico, and toured the country. From July 2009 to January 2010, she worked in Mexico as an intern in the fashion industry. Applicant has close personal contact with nine relatives (her grandmother, an uncle, aunt, four cousins, and her godparents) who are citizens and residents of Mexico. She also has a close relationship with her boyfriend, a citizen and resident of Mexico.

On an unspecified date, Applicant applied for Mexican citizenship. In May 2009, she visited the Mexican embassy in the United States, and she was granted her Mexican citizenship. She also was issued a Mexican passport that will expire in June 2015. Applicant used her Mexican passport to travel to Mexico and live there from July 2009 until January 2010.

In April 2010, Applicant was interviewed by a government investigator about her request for Mexican citizenship, and her possession of a valid Mexican passport. Applicant explained that she was born and raised in the United States, and that her loyalty and allegiance is to the United States. She requested the Mexican passport to travel to Mexico to visit with her relatives. She also has a boyfriend who is a student in a Mexican university. She became a Mexican citizen to be able to work and live in Mexico along with her Mexican family members.

The government investigator explained to Applicant the security-related concerns raised by her having dual citizenship with the United States and Mexico, and possessing a Mexican passport. Applicant was asked whether she would be willing to renounce her Mexican citizenship and to surrender her Mexican passport. Applicant stated that she would not renounce her Mexican citizenship or surrender her Mexican passport even if she was asked to do so.

In her May 2012 answer to the FORM, Applicant explained that she solicited her Mexican citizenship and passport for convenience and as a matter of expediency. At the time, she wanted to work and establish herself as a fashion designer in Mexico. To work in Mexico, she either needed to go through a lengthy process to obtain legal residence, or bypass the lengthy process by obtaining her Mexican citizenship and passport.

After six months in Mexico, Applicant realized that her fashion design career was not viable. She returned permanently to the United States, and only travels to Mexico occasionally to visit relatives and friends. Applicant stated: “Because I hold allegiance only to the United States, I have decided to renounce Mexican citizenship and permanently surrender my Mexican passport.” Applicant considers herself to be a loyal U.S. citizen, and would like the opportunity to work in support of the federal government. She provided no documentary evidence to show that she renounced her Mexican citizenship and surrendered her passport, or when she intends to do so.

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 explains the security concern about foreign preference 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 indicates four conditions that could raise a security concern and may be disqualifying in this 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; and

(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.

Foreign preference disqualifying conditions AG ¶¶ 10(a) and (b) are supported by the evidence. If these conditions are not mitigated they would disqualify Applicant from possessing a security clearance. AG ¶ 11 provides six conditions that could mitigate the security concerns for foreign preference:

(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 foreign preference mitigating conditions fully apply. Applicant, a U.S. citizen with a valid U.S. passport, was 22 years old when she acquired her Mexican citizenship and passport. Her Mexican passport is valid until June 2015. Applicant initially stated that she did not want to renounce her Mexican citizenship or to surrender her Mexican passport, because she wanted to work and live in Mexico along with her Mexican family members.

AG ¶ 11(b) applies partially, but does not fully mitigate the security concern. In May 2012, Applicant stated that she had decided to renounce her Mexican citizenship and permanently surrender her Mexican passport. However, Applicant presented no evidence to show that she is no longer in possession of a valid Mexican passport.

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). Applicant is a 24-year-old accounting technician working with a defense contractor since February 2010. Her mother was born in Mexico, and she is a registered alien living in the United States. Applicant’s father is a U.S. citizen. Applicant was born and raised in the United States. She graduated from a U.S. high school, and was awarded a bachelor’s degree from a U.S. university in 2009.

Applicant was an adult when she requested her Mexican citizenship and passport. She was made aware that her actions may indicate her preference for a foreign country over the United States. At that time, she indicated she was unwilling to surrender her passport or to renounce her foreign citizenship. In May 2012, she stated her willingness to renounce her foreign citizenship and to surrender her foreign passport. She failed to provide evidence that she is no longer in possession of a foreign passport. Considering her prior unwillingness to renounce her foreign citizenship, I gave her current willingness to do so less weight. She has failed 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

Subparagraphs 1.a - 1.b: Against Applicant

CONCLUSION

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

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 DOHA acted under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense (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 Appellate Exhibit (App.E.) 1 also includes a one-page Order, dated August 21, 2012; and a two page sequence of emails between me, Department Counsel, and Applicant.