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ISCR 02-20722.h1: Guideline B security clearance hearing, granted (2003) · CASE

ISCR Case 02-20722.h1granted

Case headnote

ISCR Case No. 02-20722.h1

grantedFeb 14, 2003· Hon. Darlene Lokey Anderson· hearing

Summary

A 39-year-old dual citizen of the United States and Ireland, employed as a Network Engineer for a defense contractor, was granted a security clearance despite concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The initial Statement of Reasons cited his dual citizenship, possession and use of an Irish passport, and multiple travels to Ireland. It also noted his Irish bank account and that his parents, one a dual citizen and the other an Irish citizen, reside in Ireland, with whom he maintains regular contact. Additionally, he maintained contact with childhood friends in Ireland and may have voted in Ireland between 1982 and 1986.

Disqualifying conditions C1 and C2 were raised, but mitigating conditions C1, C4, and B1 were applied. The applicant surrendered his Irish passport and expressed a willingness to renounce his dual citizenship. He consistently used his U.S. passport for travel to Ireland, demonstrating a preference for the United States.

The Administrative Judge found no evidence that the applicant's foreign contacts posed a risk of foreign influence. Ultimately, the security clearance was granted, as the applicant's actions mitigated the initial concerns, demonstrating no vulnerability to foreign influence and compliance with directive requirements.

Why the applicant prevailed

The applicant surrendered his Irish passport and expressed a willingness to renounce his dual citizenship.
The applicant consistently used his U.S. passport for travel to Ireland, demonstrating a preference for the United States.
There was no evidence that the applicant's foreign contacts posed a risk of foreign influence.

Conditions referenced

Disqualifying

C1raisedExercise of Dual Citizenship
C2raisedPossession And/or Use of a Foreign Passport

Mitigating

C1appliedDual Citizenship Is Based Solely on Parent's Citizenship or Birth in a Foreign Country
C4appliedIndividual Has Expressed a Willingness to Renounce Dual Citizenship
B1appliedImmediate Family Members Are Not Agents of a Foreign Power

Key rule quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance.”

Procedural posture

SOR issuedSep 12, 2002
Answer filedOct 8, 2002
Hearing heldJan 15, 2003
Decision dateFeb 14, 2003

Cite for

Mitigation of Foreign Preference Under Guideline C
Absence of Foreign Influence Concerns Under Guideline B
Demonstration of Compliance with Security Clearance Requirements

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 B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's foreign contacts do not pose a security risk, as there is no evidence that his family or friends in Ireland have any connection to the Irish government or could influence him. The applicant's ties to the United States and actions taken to mitigate foreign influence were deemed sufficient, leading to a decision in favor of the applicant under Guideline B.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The applicant's dual citizenship and possession of a foreign passport were evaluated under Guideline C. The judge found that the applicant had taken steps to mitigate concerns regarding foreign preference, including surrendering his foreign passport and expressing a willingness to renounce his foreign citizenship. Ultimately, the judge ruled in favor of the applicant, granting the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation

Descriptive standardized rendering of a decided public case. 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

DATE: February 14, 2003

In Re:

-----------------------

SSN: ----------------

Applicant for Security Clearance

ISCR Case No. 02-20722

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

SYNOPSIS

Applicant's dual citizenship, including possession and use of a valid foreign passport and foreign contacts, have been mitigated. Clearance is granted.

STATEMENT OF CASE

On September 12, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on October 8, 2002, and requested a hearing before a DOHA Administrative Judge. This case was assigned to the undersigned on November 18, 2002. A notice of hearing was issued on December 10, 2002, scheduling the hearing for January 15, 2003. At the hearing the Government presented four exhibits. The Applicant presented two exhibits and he called four witnesses. He also testified on his own behalf. The official transcript (Tr.) was received on January 30, 2003.

On August 16, 2000, a memorandum was issued by Mr. Arthur Money, Assistant Secretary of Defense for Command, Control, Communications and Intelligence, clarifying "the application of Guideline C to cases involving an Applicant's possession or use of a foreign passport." The Applicant received a copy of this memorandum. (See Government Exhibit 3).

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the exhibits and the testimony. The Applicant is 39 years of age and holds a Bachelor's Degree in Business Studies. He is employed as a Network Engineer for a defense contractor. He seeks a security clearance in connection with his employment in the defense industry.

Paragraph 1 (Guideline C - Foreign Preference). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has acted in such a way as to show a preference for another country over the United States.

The Applicant is a dual citizen of Ireland and the United States. He was born in the United States to Irish parents. He and his family moved to Ireland when he was seven years old. He grew up in Ireland and attended college in Ireland. While attending college in Ireland, during the summer of 1982, the Applicant returned to the United States to work. Following his college graduation in 1987, he moved to the United States until December 2000. Realizing that his parents were getting older and concerned about who in the family was going to take care of them, the Applicant decided to move back to Ireland in December 2000. He lived in Ireland for five months and was not able to find work and support his self. He obtained employment in the United States and has resided here since then.

The Applicant traveled to Ireland to visit his parents in February 1995, June 1995, December 1996 to January 1997, December 1997 to January 1998, December 1998 to January 1999, December 1999 to January 2000, and he has always used his United States passport.

Accordingly to the Applicant, he obtained his Irish passport in 1998 in order to be able to work in Ireland. After obtaining his Irish passport, did not use it to travel to Ireland.

Since learning of the provisions of the Money Memorandum, the Applicant surrendered his passport to the Consulate General's Office They returned it to him cancelled. (See, Applicant's Exhibit B). The Applicant intends on destroying it.

The Applicant had a bank account in Ireland that contained approximately $330.00 dollars in it. Upon his request, in December 2002, his mother closed the bank account for him. Applicant submitted documentation from the bank indicating that his Irish bank account has been closed. (See, Applicant's Exhibit A).

The Applicant indicates that he may have voted in Ireland between the period from 1982 until 1986, however he does not quite remember.

Paragraph 2 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

The Applicant's mother is a dual citizen of the United States and Ireland. His father is a citizen of Ireland. His parents both reside in Ireland. His mother visits him in the United States about once a year. He e-mails his parents in Ireland and telephones them about once a month or so. The Applicant has two aunts that live in Ireland. His only contact with them is when he visits Ireland.

The Applicant maintains contact with several childhood friends that he went to school with in Ireland. There is no evidence in the record that any of the Applicant's family or friends in Ireland have any affiliation with the Irish Government whatsoever.

The Applicant has two sisters and a brother. A sister and brother were born in the United States. His other sister was born in Ireland. They all reside in the United States and they are citizens of the United States.

Mitigation.

Two of the Applicant's supervisor's testified that as an employee the Applicant rates 10 out of a possible 10. He is an outstanding employee. He is extremely detail oriented, and has both leadership skills and technical skills which are difficult to find.

The Applicant's parents both testified that they have great respect for the United States. Although they live in Ireland, they have never worked for the Irish Government, and they have no affiliation with the IRA, Sinn Fein or any of the Protestant factions.

POLICIES

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Foreign Preference

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.

Conditions that could raise a security concern:

1. The exercise of dual citizenship;

2. Possession and/or use of a foreign passport;

Conditions that could mitigate security concerns:

1. Dual citizenship is based solely on parent's citizenship or birth in a foreign country;

4. Individual has expressed a willingness to renounce dual citizenship.

Foreign Influence

A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are: (1) not citizens of the United States or (2) may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Condition that could raise a security concern:

1. An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country;

Condition that could mitigate security concerns:

1. A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between the loyalty of the person(s) involved and the United States.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

The Government must make out a case under Guideline C (foreign preference) and Guideline B (foreign influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

An individual who demonstrates a foreign preference and has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. The mere possession of a foreign passport raises legitimate questions as to whether the Applicant can be counted upon to place the interests of the United States paramount to that of another nation. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

CONCLUSION

Having considered the evidence in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR, and that Applicant's foreign contacts have a direct and negative impact on his suitability for access to classified information.

The Applicant was born in the United States, but raised in Ireland. He obtained an Irish passport in 1998 for the purpose of obtaining employment in Ireland, but he never used it. The Applicant's parents live in Ireland, and although the Applicant would have liked to support them in Ireland, he was unable to find employment there, and moved to the United States. The Applicant has traveled to Ireland on frequent occasions, to visit his parents, but he has always used his United States passport. Since learning that possession of a foreign passport is not permitted when holding a security clearance, in compliance with the provisions of the Money Memorandum, he surrendered his Irish passport to the Consulate General, and it has been cancelled. With respect Irish citizenship, the Applicant has expressed a willingness to renounce it as required by the directive. Under the circumstances, the Applicant has done everything possible to be in compliance with the requirements of the directive and the Money Memorandum. Accordingly, he has clearly demonstrated an unequivocal preference for the United States. Under the circumstances of this case, I find for the Applicant under Guideline C.

With respect to Guideline B, the evidence establishes that he is not vulnerable to foreign influence. The Applicant's contacts with his foreign relatives are not of a nature to influence his security worthiness. There is no evidence in the record that any of his family or friends have any connection with the Irish Government, or are in a position to be exploited by Ireland in a way that could force the Applicant to choose between loyalty to them and loyalty to the United States. Based on the foregoing, this does not raise a security concern and Guideline B is found for the Applicant.

Considering all the evidence, the Applicant has met the mitigating conditions of Guideline C and Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guidelines C and B.

FORMAL FINDINGS

Formal Findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: For the Applicant.

Subparas. 1.a.: For the Applicant

1.b.: For the Applicant

1.c.: For the Applicant

1.d.: For the Applicant

1.e.: For the Applicant

Paragraph 2: For the Applicant.

Subparas. 2.a.: For the Applicant

2.b.: For the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interests to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson

Administrative Judge

FOOTNOTES

02-20722.h1 FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-20722.h1.html[6/24/2021 11:02:03 AM] 02-20722.h1