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ISCR Case 04-01243.h1 — CASE

ISCR Case 04-01243.h1denied

Case Headnote

ISCR Case No. 04-01243.h1

deniedOct 18, 2005· Hon. Elizabeth M. Matchinski· hearing

Summary

A security clearance was denied to an applicant, a native of Lebanon who became a U.S. citizen in 2001, due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant maintained dual citizenship with Lebanon and was unwilling to renounce her Lebanese citizenship or passport.

Disqualifying conditions were raised because the applicant has family members, including her parents and three siblings, who are citizens and residents of Lebanon. She also traveled to Lebanon at least four times between August 1999 and August 2003. Furthermore, the applicant voted in a Lebanese election in 1996, which occurred before she obtained U.S. citizenship.

Despite the application of a mitigating condition, the judge found that the applicant's retention of Lebanese citizenship, her vote in a foreign election, and her continuing family ties in Lebanon created a potential for undue foreign influence and demonstrated a preference for her country of origin, leading to the denial of her security clearance.

Why the Applicant Was Denied

Applicant retained her Lebanese citizenship and was unwilling to renounce it.
She voted in a local election in Lebanon in 1996, raising foreign preference concerns.
Applicant has continuing ties to family members in Lebanon, creating potential for undue foreign influence.

Conditions Referenced

Disqualifying

E2.A3.1.2.1raisedDual Citizenship
E2.A3.1.2.2raisedPossession And/or Use of a Foreign Passport

Mitigating

E2.A3.1.3.2rejectedIndicators of Possible Foreign Preference Occurred Before Obtaining U.S. CitizenshipVoting in a foreign election occurred before she acquired U.S. citizenship.

Key Rule Quoted

“"No one has a 'right' to a security clearance."”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedOct 13, 2004
Answer filedOct 26, 2004
Hearing heldMay 26, 2005
Decision dateOct 18, 2005

Cite For

Foreign Preference Concerns Related to Dual Citizenship Under Guideline C
Foreign Influence Due to Family Ties in Lebanon Under Guideline B
The Importance of Renouncing Foreign Citizenship for 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 B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline B, citing her continuing ties to family members in Lebanon, which create the potential for undue foreign influence. The applicant's dual citizenship and unwillingness to renounce her Lebanese citizenship were significant factors in the decision to deny her security clearance.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: U.S. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	The applicant has family members who are citizens and residents of Lebanon, including her parents and three siblings.	Against Applicant	Parent in Foreign Country Immediate Family	Lebanon	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	—	—
2.b	The applicant has traveled to Lebanon at least four times between August 1999 and August 2003.	Against Applicant	Unspecified Foreign Relationship Other	Lebanon	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	—	—
2.c	The applicant has expressed a preference for her foreign citizenship by retaining her Lebanese citizenship and passport.	Against Applicant	Unspecified Foreign Relationship Other	Lebanon	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	—	—

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The applicant, a native of Lebanon, faced foreign preference concerns due to her dual citizenship and unwillingness to renounce her Lebanese citizenship. The judge found against the applicant on two allegations related to foreign preference, while ruling in her favor on one allegation regarding her voting in a foreign election prior to obtaining U.S. citizenship. Ultimately, the applicant's security clearance was denied due to the persistence of foreign preference issues.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	The applicant exercises dual citizenship (U.S. and Lebanon) and is unwilling to renounce her Lebanese 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.	—	—
1.b	The applicant voted in a Lebanese election in 1996.	Against Applicant	Foreign Voting	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.c	The applicant's voting in a foreign election occurred before obtaining U.S. citizenship.	For Applicant	Foreign Voting	Admitted	—	(a) the foreign citizenship is not in conflict with U.S. national security interests	—

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

SYNOPSIS

KEYWORD: Foreign Preference; Foreign Influence

DIGEST: Applicant, a native of Lebanon, acquired U.S. citizenship in 2001. She voted in a local election when living in Lebanon in 1996, but it was not an exercise of dual citizenship. Foreign preference concerns persist where she is unwilling to renounce her Lebanese citizenship, cannot recall the date of her U.S. naturalization, and has never voted in a U.S. election. Applicant also has continuing ties of affection and obligation to family members in Lebanon which create the potential for undue foreign influence. Clearance is denied.

CASENO: 04-01243.h1

DATE: 10/18/2005

DATE: October 18, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-01243

DECISION OF ADMINISTRATIVE JUDGE

ELIZABETH M. MATCHINSKI

APPEARANCES

SYNOPSIS

Applicant, a native of Lebanon, acquired U.S. citizenship in 2001. She voted in a local election when living in Lebanon in 1996, but it was not an exercise of dual citizenship. Foreign preference concerns persist where she is unwilling to renounce her Lebanese citizenship, cannot recall the date of her U.S. naturalization, and has never voted in a U.S. election. Applicant also has continuing ties of affection and obligation to family members in Lebanon which create the potential for undue foreign influence. Clearance is denied.

STATEMENT OF CASE

On October 13, 2004, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant which detailed 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. (1) DOHA recommended referral to an administrative judge to conduct proceedings and determine whether clearance should be granted, continued, denied, or revoked. The SOR was based on foreign preference (Guideline C) and foreign influence (Guideline B).

On October 26, 2004, Applicant responded to the SOR allegations and requested a hearing before a DOHA administrative judge. The case was assigned to me on April 4, 2005. On May 6, 2005, I scheduled a hearing for May 26, 2005. At the hearing, one joint exhibit proving surrender of her Lebanese passport was entered into evidence. The government otherwise submitted Applicant's security clearance application (Ex. 1) and her response to interrogatories (Ex. 2). Applicant's case consisted of one additional document (Ex. A, her U.S. passport) and the testimonies of three witnesses (Applicant, her brother, and her supervisor). A transcript of the hearing was received on June 8, 2005.

At the government's request, administrative notice was taken of several documents: a map of Lebanon showing the location of Applicant's hometown; U.S. State Department's Travel Warning November 18, 2004 (current as of March 24, 2005) and Travel Warning April 21, 2005 (current as of May 10, 2005); U.S. Library of Congress country study on Lebanon, December 1987; U.S. State Department's Patterns of Global Terrorism 2001; U.S. State Department's Background Note: Lebanon, November 2004; and extracts from the Operations Security Intelligence Threat Handbook, revised May 1996. (2)

FINDINGS OF FACT

The SOR alleges foreign preference concerns, specifically Applicant exercises dual citizenship (U.S. and Lebanon), is unwilling to renounce her Lebanese citizenship, and voted in a Lebanese election in 1996. Foreign influence concerns are also alleged because of the Lebanese citizenship and residency of her parents and three of her siblings (dual citizenship U.S. and Lebanon of her parents) and her travel to Lebanon at least four times between August 1999 and August 2003.

In her Answer, Applicant admitted the allegations, explaining in part that she preferred to retain her dual citizenship as her Lebanese citizenship was "an important part of [her] family and cultural heritage" and she wanted to be able to travel to Lebanon on a moment's notice should it be necessary. Applicant added that she had surrendered her Lebanese passport on June 12, 2002, understanding the U.S. government's need to know of her foreign travel. Applicant's admissions are incorporated as findings of fact. After a complete and thorough review of the evidence of record, and upon due consideration of the same, I make the following additional findings:

Applicant is a 43-year-old senior accountant employed by a university at its affiliated federally-funded research laboratory since July 2002. She seeks a secret-level security clearance for her duties as manager of the cashier's office, where she is responsible for the laboratory's three bank accounts and cash. She also has access to one university campus account into which she transfers the laboratory staff's payroll.

Applicant was born and raised in rural Lebanon. Her father, who had little formal education, co-owned with his brother a small construction (plastering) business that operated in their village and others nearby. Her mother, who speaks French, English and Arabic, stayed home to care for their six children (two sons and four daughters). In November 1987, during civil unrest in Lebanon, Applicant came to the U.S. to visit her two brothers, who had emigrated from Lebanon in 1973 and 1976, respectively. A few months later, Applicant's parents joined her (their youngest and only unmarried daughter) in the U.S. The elder of Applicant's two brothers had acquired his U.S. citizenship in 1983, and was working for a U.S. technology company. The younger had his own convenience store business. Applicant worked in her brother's business as assistant store manager from February 1988 to March 1995 while learning English (she did not speak the language when she arrived) and then pursuing higher education. Her parents helped out in the store as well, and Applicant and her parents acquired U.S. permanent residency status.

After earning her associate degree in accounting, Applicant transferred to a private university in September 1994. In April 1995, she began working as a sales/service associate at a bank. In 1996, her brother sold his convenience store business. Bored and desiring to retire in Lebanon, her parents returned to their home in rural Lebanon with Applicant in March 1996. After she finished with her studies for her B.S. degree in finance, which was subsequently awarded to her that Fall, Applicant was persuaded by her mother to give living in Lebanon a chance. Applicant left most of her belongings with her brothers in the U.S., as she was not certain that she wanted to remain in Lebanon.

Applicant began teaching in a private international elementary school in Lebanon in September 1996. While it was a very good job, it was not beneficial for her career. Nor did she enjoy the absence of privacy in her personal life. (3) She spent Christmas and New Year's in the U.S., and returned to Lebanon to serve out the remainder of her one-year contract. During the fifteen months she was in Lebanon, she voted in one local election. She had not previously voted in a foreign election. In December 1997, Applicant returned to the U.S. permanently, on a Lebanese passport issued in July 1994 and valid for ten years.

For the first four months of 1998, she worked as a data processor for a temporary agency. In April 1998, she gained employment as a senior staff accountant for a high tech firm. She traveled to Lebanon to see her parents and sisters in August 1999 and August 2000 on her Lebanese passport. In about June 2001, she became a U.S. naturalized citizen, taking an oath to renounce all foreign allegiances, to support and defend the U.S. Constitution and its laws, and to bear arms or perform noncombatant or civilian service on behalf of the U.S., if required. (4) While she became a U.S. citizen as she appreciated the personal privacy and employment opportunities in the U.S., she took no steps to renounce her Lebanese citizenship and continued to possess her Lebanese passport. In July 2001, she was issued her U.S. passport, valid for ten years. In August 2001, she went to Lebanon to see her family, using her U.S. passport in transit but her Lebanese passport on entering and exiting Lebanon. (5)

Applicant's employer filed for bankruptcy, and she was laid off in November 2001. After seven months of unemployment, she was hired by her present employer in July 2002. Informed by the laboratory that she would need a security clearance for her duties and was required to surrender her foreign passport, Applicant wrote to the Lebanese Consulate inquiring as to the procedure for surrendering her U.S. passport as she was "working currently at [the laboratory] and [she] was requested [sic] a Security Clearance in order to maintain [her] job." On July 18, 2002, she forwarded her foreign passport to the Consulate. On July 24, 2002, the Consulate confirmed her surrender of the Lebanese passport issued July 1994.

On July 29, 2002, Applicant executed a security clearance application (SF 86). She disclosed her dual citizenship with Lebanon and the U.S.. (6) She indicated her parents and the younger of her two brothers have dual citizenship with the U.S. and Lebanon, but provided alien registration numbers consistent with U.S. permanent resident status. (7) Applicant attached to her SF 86 documentation confirming surrender of her foreign passport.

Applicant traveled to Lebanon on her U.S. passport in August 2003. She stayed at her parents' home during her three- week visit. Applicant informed security officials at her place of employment of her planned travel before she left for Lebanon. On December 3, 2003, Applicant was interviewed by a Defense Security Service (DSS) special agent. She reiterated that she was a dual citizen of the U.S. and Lebanon, and again provided proof of her surrender of her Lebanese passport. She disclosed she had voted in a Lebanese election while she lived there in 1996/97. In subsequent interrogatories, DOHA inquired whether she would be willing to renounce her foreign citizenship. In her response of March 19, 2004, Applicant indicated she was not willing to renounce her citizenship with either the U.S. or Lebanon:

United States is where I live, I work, I have my friends, my brothers and their families, and my church. Lebanon is where my parents and sisters and their families live, and I would like to be able to visit them.

Applicant denied receipt or exercise of any rights, privileges, or benefits from Lebanon. She indicated she had not renewed her Lebanese passport, had not voted in any foreign election since 1996/97 and had no intent to do so in the future, and had not traveled since December 2003.

As of late May 2005, Applicant had not renounced her Lebanese citizenship primarily because as a Lebanese citizen, she would be able to enter Lebanon without a visa on her U.S. passport by presenting her birth certificate at the border should she have to travel there on short notice. She also does not want to hurt her family members by denying her Lebanese heritage and culture.

Applicant does not intend to return to Lebanon to live in the future. She is very active in her Orthodox Christian church in the U.S., where she served as treasurer for the past two years. She owns her condominium in the U.S., which she purchased in December 2004, and has savings and retirement assets in the U.S. Applicant registered to vote in the U.S. in 2004. As of May 2005, she had not yet voted in an election in the U.S., but she plans to vote in the future. Applicant has no financial assets or real property in Lebanon, and receives no benefits from Lebanon. On the deaths of her parents, her two brothers will inherit their parents' home in Lebanon.

As of late May 2005, her parents were residing in their home in rural Lebanon. Retired since his return to Lebanon in 1996, Applicant's father spends his days gardening and socializing with his three brothers, all themselves retired, who reside in a neighboring village. Neither of Applicant's parents has been politically active in Lebanon. Applicant has three sisters (all teachers in the local public schools) in Lebanon. The eldest teaches grade school French and is herself married to a teacher. Their three children have all attended college focusing on nursing, civil engineering, and French literature, respectively. None served in the Lebanese military. The middle sister teaches social studies and Arabic. Her spouse retired about eight years ago from his teaching position. Their two children are college graduates who studied agriculture and engineering, respectively. The youngest of Applicant's three sisters is soon to be divorced from her spouse, who was a colonel in the Lebanese Army (supply department) until his retirement more than 12 years ago. A teacher, Applicant's sister resides with her parents in their home and she sees her estranged spouse rarely. She and her children are U.S. permanent residents. Her son was living with Applicant in the U.S. as of ay 2005 while he took English as a second language classes at a local college. This sister plans to immigrate to the U.S. in June 2005. Applicant telephones her parents once weekly. Since her sister is living there, she speaks with her as well. Applicant contacts her other sisters on birthdays and holidays, such as Easter. None of Applicant's siblings or their families works for the Lebanese government or Lebanese military. While they are aware Applicant is employed as an accountant by the university, she has not told them that she requires a security clearance for her duties. To Applicant's knowledge none of her family members have been improperly approached by an agent of the Lebanese government. Applicant has a large extended family in Lebanon (aunts, uncles, cousins) whom she visits when in Lebanon. She does not have any regular, ongoing contact with them.

Applicant's two brothers are longtime residents of the U.S. who do not intend to return to Lebanon. The elder brother, a dual citizen of the U.S. and Lebanon, came to the U.S. in 1973 to pursue a degree in engineering. Currently general manager of a software division of a $2.5 billion publicly-held U.S. computer hardware technology company, he travels abroad extensively. He is married to a U.S. native citizen. They have two grown children who are registered in Lebanon. Their son, who has a degree in English from a private college in the U.S., has spent his time since college surfing. Their daughter is studying the fashion business. She has Lebanese and U.S. passports while his son has only a U.S. passport. The younger of Applicant's brothers, who immigrated to the U.S. when he was only 16, attended high school and college in the U.S. He is a mechanical engineer with three children, all minors. Applicant is close to her brothers and spends time with them and their families on the weekends.

Applicant keeps in touch with a childhood friend who works as a librarian in Lebanon. They converse by telephone on their respective birthdays and on holidays. Applicant and this friend get together when Applicant is in Lebanon visiting her family.

Applicant's direct supervisor, who has had the opportunity to observe her work and trustworthiness in handling accounts with balances upwards of $50 million, has rated her performance as "exceptional across the board." He has confidence in her based on her accuracy in handling the cash accounts, confirmed by clean audits. On a couple of occasions, Applicant discovered potential risk areas that she properly brought to his attention. She recently questioned a bank balance that appeared low to her. After some research, a $1.1 million accounting error was detected and balances were corrected. In May 2005, she was recognized with a cash reward for exceptional service for the past fiscal year, and had been approved for a promotion to assistant accounting officer. He has no qualms about her being granted her security clearance.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "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). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his [or her] security clearance." ISCR Case No. 01-20700 at 3.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

After a complete review of the evidence of record, the following adjudicative guidelines are pertinent to this case:

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. (¶ E2.A3.1.1.)

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 not citizens of the United States or 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. (¶ E2.A2.1.1.)

CONCLUSION

Having considered the evidence in light of the appropriate legal precepts and factors, and having assessed the credibility of those who testified, I conclude the government has established its case with respect to Guideline C, foreign preference, and Guideline B, foreign influence.

Applicant came to the U.S. from Lebanon in November 1987 to visit her brothers who had immigrated more than a decade before. Joined shortly thereafter by her parents, Applicant worked in her brother's convenience store business while attending college, and became a permanent resident of the U.S. in February 1995. At the urging of primarily her mother, Applicant went back to rural Lebanon when her parents returned in March 1996. She taught in a private school for a year, and voted in one local election in Lebanon. While voting in a foreign election can raise foreign preference concerns (see E2.A3.1.2.8. Voting in foreign elections), it is mitigated by the fact that it predated her acquisition of U.S. citizenship. Mitigating condition E2.A3.1.3.2 Indicators of possible foreign preference occurred before obtaining U.S. citizenship applies to her voting, as well as to her renewal of her Lebanese passport in 1994, which occurred before she even obtained permanent resident status in the U.S. SOR ¶ 1.c. is found for Applicant.

A dual citizen of Lebanon and the U.S. since about June 2001, Applicant used her Lebanese passport in preference to her U.S. passport to enter and exit Lebanon during a trip taken in August/September 2001, and she retained possession of that valid foreign passport until July 2002. While dual citizenship may be mitigated where it is based solely on birth in a foreign country (see E2.A3.1.3.1.), legitimate foreign preference concerns are raised where Applicant presented her Lebanese passport after she became a U.S. citizen. Disqualifying conditions E2.A3.1.2.1. The exercise of dual citizenship, and E2.A3.1.2.2. Possession and/or use of a foreign passport, apply. (8) Applicant was not working for a defense contractor at the time and had no reason to know of the security concerns presented by the possession and/or use of a foreign passport. (9) Nonetheless, the risk of unverifiable travel remained as long as she possessed a Lebanese passport and her willingness to travel as a Lebanese citizen engenders doubts about the strength of her ties to the U.S.

She surrendered her Lebanese passport promptly when apprised by her employer that she had to relinquish it. This shows a willingness to comply with Department of Defense requirements, and she has not reacquired a Lebanese passport. She traveled to Lebanon in August 2003 on her U.S. passport, and has chosen to make her home and career in the U.S. At the same time, she remains unwilling to renounce her Lebanese citizenship. Renunciation of foreign citizenship is not required for access, but the government must be assured that Applicant will not make decisions in the interest of Lebanon, even if her actions have no inimical impact on the U.S. Applicant explained that her primary motivation in retaining her Lebanese citizenship is so she can travel to Lebanon on her U.S. passport without a visa. When asked what documentation sufficed as proof of Lebanese citizenship, Applicant responded, "When I travel with my American passport, I just show them a birth certificate that I was born in Lebanon and that's it." (Tr. 117) If proof of Lebanese birth rather than nationality is all that is required, Applicant's U.S. passport reflects she was born in Lebanon (Ex. A). More than a matter of convenience, Applicant wants to avoid the situation of being confronted by Lebanese authorities regarding her citizenship status ("I would have to go through hard time getting a visa, and they're going to be like why did you renounce your Lebanese citizenship if you're going to be going back and forth? I don't want to go through this." Tr. 63-64) and she considers it a denial of her Lebanese culture and heritage to renounce her Lebanese citizenship ("My parents are in Lebanon. My sisters, and I go on a regular basis, and I don't see why I would want to hurt their feelings by just saying I don't want to be Lebanese anymore. For this reason, I didn't want to, it's part of my culture." Tr. 62). Her unwillingness to relinquish her Lebanese citizenship is evidence of a strong tie to Lebanon and it precludes the application of mitigating condition E2.A3.1.3.4., Individual has expressed a willingness to renounce dual citizenship.

As corroborated by her direct supervisor, Applicant has proven reliable and trustworthy in fulfilling her substantial fiduciary duties for her employer. While her dedication to her work and church in the U.S. weigh in her favor, she was unable to recall the date of her U.S. naturalization, and she has not voted in the U.S. She made no effort to register to vote in the U.S. until 2004. Even if reflective of a disinterest in politics, it raises questions about the strength of her commitment to fulfill the duties of her U.S. citizenship. Her strong ties to her parents and siblings in Lebanon (which raise issues of undue foreign influence, see below), heighten the risk of her acting in foreign preference. SOR ¶ 1.a. and ¶ 1.b. are resolved against her, as she has failed to meet her heavy burden of overcoming the foreign preference concerns presented by her exercise of dual citizenship.

Under Guideline B, 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 not citizens of the U.S. or 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. (¶ E2.A2.1.1.) In determining whether an applicant's family ties in a foreign country pose an unacceptable security risk, the administrative judge must consider the record evidence as a whole. Common sense suggests that the stronger the ties of affection or obligation, the more vulnerable a person is to being manipulated if the relative, cohabitant, or close associate is improperly influenced, brought under control, or even used as a hostage by a foreign intelligence or security service.

Applicant's parents and sisters are residents of northern Lebanon. Applicant has regular contact with her parents (once weekly) and the sister who resides with them pending her divorce. Although her contact with her other sisters is limited to holidays and birthdays, she remains close to them. Applicant visited her sisters and their families when she traveled to Lebanon in 1999, 2000, 2001 (twice), and 2003. As of May 2005, a nephew, a Lebanese citizen, was living with her in the U.S. while studying English. Disqualifying conditions E2.A2.1.2.1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country, and E2.A2.1.2.2. Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists, apply.

Under the Directive, the foreign influence concerns raised by her relationship with her parents and sisters in Lebanon may be mitigated where it can be determined that they 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 Applicant to choose between them and the U.S. (see MC E2.A2.1.3.1.). (10) Applicant's relatives have not been agents of a foreign power. Applicant's father worked as a plasterer in his small construction business in Lebanon before he came to the U.S. in 1988. He has been retired since he returned to Lebanon. Her mother never worked outside of the home. Applicant's sisters are teachers in the local school system in Lebanon. While one sister was married to a retired colonel in the Lebanese military, he served in logistics (supply), has been retired for more than 12 years, and is estranged from Applicant's sister and the family. This sister, the mother of the nephew residing with Applicant, planned to immigrate to the U.S. in June 2005.

As long as there is a tie of obligation or affection to a person who is subject to a foreign government's jurisdiction/laws and/or is within physical reach of the foreign authorities, undue foreign influence remains possible. Although not specifically stated in the adjudicative guideline, the particular foreign country of which the close relative or associate is a citizen and/or resides is relevant in determining the likelihood of undue influence being brought to bear on its citizens/residents. Countries with strong democratic institutions and respect for the rule of law are generally regarded as presenting less of a risk than totalitarian regimes with a record of human rights abuses, support for terrorist activities, or hostility to the U.S., although the particular circumstances of each applicant must be taken into account. The U.S. State Department's recent travel warning dated April 21, 2005, reports the need for heightened caution by U.S. citizens when traveling in Lebanon due to continued instability in the country. Protests against the U.S. Embassy followed the assassination of Lebanon's former prime minister in February 2005. Hizballah, whom the U.S. regards as a terrorist group, maintains a strong presence in many areas of Lebanon, including Tripoli, the largest city in northern Lebanon which is about 25 minutes drive from the rural village in which Applicant's relatives live. (See Tr. 102) While Applicant's immediate family members are not officials or agents of the Lebanese government, the unstable political and economic conditions in Lebanon do not preclude the possibility that Applicant's family members could be exploited in a manner that might force Applicant to choose between her family members and her obligations to the U.S. government. It is noted that when she surrendered her Lebanese passport to the Consulate, she informed them that she worked for the university-affiliated laboratory and had requested a security clearance to perform her job, potentially placing her relatives at more of a risk than had she not notified them of her job and clearance situation. None of the mitigating conditions under Guideline B apply. SOR ¶ 2.a., ¶ 2.b., and ¶ 2.c. are resolved against Applicant. (11)

FORMAL FINDINGS

Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:

Paragraph 1. Guideline C: AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: Against the Applicant

Subparagraph 1.c.: For the Applicant

Paragraph 2. Guideline B: AGAINST THE APPLICANT

Subparagraph 2.a.: Against the Applicant

Subparagraph 2.b.: Against the Applicant

Subparagraph 2.c.: Against the Applicant

DECISION

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

Elizabeth M. Matchinski

Administrative Judge

1. The SOR was issued under the authority of Executive Order 10865 (as amended by Executive Orders 10909, 11328, and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4).

2. I declined to take administrative notice of a Defense Personnel Security Research Center document, Espionage by the Numbers: A Statistical Overview.

3. Applicant's eldest brother testified that in their native village "everybody knows everybody." (Tr. 149)

4. Applicant was unable to recall the specific date of her U.S. naturalization. She initially testified she became a U.S. citizen in 2000. (Tr. 54) On cross examination, she testified, "In 2001 I got my U.S. passport and this is when, you know, went and swore, I guess this is when I became U.S. American citizen, in 2001." (Tr. 109) When I later asked her whether she became a U.S. citizen in June or July 2001, she responded, "I think it was June. I don't recall exactly when . . . ." (Tr. 114)

5. Applicant testified she could not recall whether she presented her Lebanese passport when she traveled to Lebanon in August 2001. After it was pointed out to her that her U.S. passport contained entry and exit stamps by Lebanese border officials only for the trip in 2003, Applicant indicated she must have had her Lebanese passport with her in 2001 and only that passport was stamped. (Tr. 116) It is not clear whether Applicant attempted to enter Lebanon on her U.S. passport in 2001.

6. It indicates on her SF 86 that Applicant became a U.S. naturalized citizen in February 1995. That is the date she became a U.S. permanent resident. When asked about the discrepancy, Applicant explained that the form was typed up by someone in the security department who may have assumed it was the date she became naturalized. (Tr. 108, 113) Applicant testified she was sure she told the security employee she became a U.S. permanent resident in February 1995. (Tr. 113)

7. Applicant testified her brother sponsored her parents for their permanent residency and then citizenship. Her mother then sponsored her. (Tr. 94) The date(s) her parents acquired U.S. citizenship is not of record.

8. Dual citizenship is recognized by the United States, but it is not encouraged. As the DOHA Appeal Board articulated dual citizenship in and of itself is not sufficient to warrant an adverse security clearance decision. ISCR Case No. 99- 0454, (App. Bd. Oct. 17, 2000). Under Guideline C, the issue is whether an applicant has shown a preference through her actions for the foreign country of which she is also a citizen. Among the specific behaviors which raise significant Guideline C issues is possession of a foreign passport. 9. On August 16, 2000, the Assistant Secretary of Defense for Command, Control, Communications and Intelligence (ASDC3I) clarified the guidance pertinent to possession and or use of a foreign passport, stating in pertinent part:

The purpose of this memorandum is to clarify the application of Guideline C to cases involving an applicant's possession or use of a foreign passport. The Guideline specifically provides that "possession and/or use of a foreign passport" may be a disqualifying condition. It contains no mitigating factor related to the applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country. The only applicable mitigating factor addresses the official approval of the United States Government for the possession or use. The security concerns underlying this guideline are that the possession and use of a foreign passport in preference to a U.S. passport raises doubt as to whether the person's allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States. Therefore, consistent application of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government.

10. See MC E2.A2.1.3.1. A determination that the immediate family members(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 loyalty to the person(s) involved and the United States. The mitigating condition is bifurcated in nature ["A determination that the immediate family member(s). . . are not agents of a foreign power or in a position to be exploited by a foreign power. . . ."]. To construe the conjunction "or" as "and" would be against the plain language. While MC E2.A2.1.3.1. can be applied if an applicant satisfies only one of the two parts, a given adjudicative condition (either disqualifying or mitigating) cannot be read in such a way to be inconsistent with other adjudicative conditions. Under Guideline B, if foreign relations, who are not government agents or employees, are in a position to be exploited then MC E2.A2.1.3.1. does not mitigate the foreign influence concerns.

11. Foreign travel is not itself disqualifying under foreign influence. SOR ¶ 2.c. is resolved against her to the extent her travel to see her relatives in Lebanon confirms her close relationship with them.

FOOTNOTES

FOR GOVERNMENT Daniel F. Crowley, Esq., Department Counsel FOR APPLICANT file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01243.h1.htm[7/2/2021 3:23:27 PM] Josiah M. Black, Esq.