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ISCR Case 06-08983.h1 — CASE

ISCR Case 06-08983.h1denied

Case Headnote

ISCR Case No. 06-08983.h1

deniedJan 31, 2007· Hon. LeRoy F. Foreman· hearing

Summary

A 55-year-old dual citizen of the United Kingdom and the United States was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed from her continued possession and use of her U.K. passport, which she renewed after becoming a U.S. citizen and used on two occasions. She also stated her intention to renew it again and her unwillingness to surrender it.

The Statement of Reasons alleged that her renewal, use, and refusal to surrender the U.K. passport established a disqualifying condition and indicated a preference for a foreign country. The judge found that her exercise of dual citizenship through possessing and using the foreign passport demonstrated a preference for a foreign country, raising Disqualifying Conditions 1 and 2.

Despite the applicant's claims of allegiance to the U.S. and explanations related to her heritage, these were not found to be mitigating circumstances (Mitigating Conditions 1 and 2 were applied but did not overcome the concerns). The judge concluded that her unwillingness to surrender the U.K. passport indicated a preference for foreign citizenship over U.S. citizenship, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant continued to possess and use her U.K. passport after becoming a U.S. citizen.
She expressed unwillingness to surrender her U.K. passport, indicating a preference for foreign citizenship over U.S. citizenship.
The applicant's actions were not mitigated by her claims of allegiance to the U.S. or her heritage.

Conditions Referenced

Disqualifying

DC 1appliedDual Citizenship
DC 2appliedPossession or Use of a Foreign Passport

Mitigating

MC 1appliedDual Citizenship Based Solely on Parents' Citizenship or Birth in a Foreign Country
MC 2rejectedIndicators of Possible Foreign Preference Occurred Before Obtaining U.S. CitizenshipThis mitigating condition does not apply because the applicant continued to possess and use her U.K. passport after becoming a U.S. citizen.

Key Rule Quoted

“When an applicant acts in such a way as to indicate a preference for a foreign country over the U.S., he or she may be prone to provide information or make decisions that are harmful to the interests of the U.S.”

Procedural Posture

SOR issuedJul 24, 2006
Answer filedAug 14, 2006
Hearing heldJan 17, 2007
Decision dateJan 31, 2007

Cite For

Denial of Clearance Due to Foreign Preference Under Guideline C
Impact of Dual Citizenship on Security Clearance Eligibility
Importance of Surrendering Foreign Passports as Per the Money Memorandum

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 applicant, a dual citizen of the United Kingdom and the United States, faced allegations under Guideline B concerning foreign influence. The judge found that the applicant's continued possession and use of a foreign passport raised security concerns that were not mitigated, leading to a denial of the security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a–1.d	4 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant	Unspecified Foreign Relationship Other	—		—	—	—

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 dual citizen of the United Kingdom and the United States, faced security concerns due to her possession and use of a foreign passport. The judge found that the applicant's actions indicated a preference for her foreign citizenship, which was not mitigated by her claims of heritage. Consequently, the judge ruled against the applicant on all allegations under Guideline C, resulting in a denial of her security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	The applicant renewed her U.K. passport after becoming a U.S. citizen, used it twice, and intends to renew it again. She is not willing to surrender it.	Against Applicant	Foreign Passport Possession or Use	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 is not willing to surrender her U.K. passport.	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.c	The applicant's exercise of her dual U.K.-U.S. citizenship by possessing and using her U.K. passport establishes a disqualifying condition.	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.d	The applicant's continued possession and use of her U.K. passport after becoming a U.S. citizen indicates a preference for a foreign country.	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.	—	—

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

DATE: January 31, 2007

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 06-08983

ECISION OF ADMINISTRATIVE JUDGE

LEROY F. FOREMAN

SYNOPSIS

Applicant is a dual citizen of the United Kingdom (U.K) and the United States (U.S.). She renewed her U.K. passport after becoming a U.S. citizen, used it twice, and intends to renew it again. She is not willing to surrender it. The security concern based on her possession and use of a foreign passport is not mitigated. Clearance is denied.

STATEMENT OF CASE

On July 24, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny Applicant a security clearance. This action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (Directive). The SOR alleged security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of the Directive.

Applicant answered the SOR in writing on August 14, 2006, admitted the allegations under Guideline C, admitted one of two allegations under Guideline B, offered explanations, and elected to have a hearing before an administrative judge. The case was assigned to me on November 14, 2006. On January 5, 2007, I granted Department Counsel's motion to withdraw the allegations under Guideline B. The case was heard on January 17, 2007, as scheduled. DOHA received the hearing transcript (Tr.) on January 23, 2007.

FINDINGS OF FACT

Applicant's admissions in her answer to the SOR and at the hearing are incorporated into my findings of fact. I make the following findings:

Applicant is a 55-year-old supply chain manager for a federal contractor. She was born in the United Kingdom (U.K.), married a U.S. citizen in August 1975, and became a naturalized U.S. citizen. She holds dual U.S.-U.K. citizenship. She first received a security clearance in 1993 (Tr. 40). Her clearance was continued in March 2003 (GX 1 at 7).

Applicant renewed her U.K. passport in April 1997, after becoming a U.S. citizen. She continues to hold her U.K. passport, which expires in April 2007, and she used it twice, in April 1997 and April 1998, to visit her parents in the U.K. (GX 5; Answer to SOR). On each occasion, a parent was on the verge of death, and Applicant used her U.K. passport because it enabled her to exit the airport more quickly and rush to the hospital (Tr. 39). She also has a U.S. passport, which she has used for all other foreign travel (Tr. 44).

Applicant is not willing to surrender her U.K. passport. In an interview with a security investigator in November 1993, she stated she was unwilling to give up her U.K passport. She explained, "It is part of me, who I am and it is something I don't want to give up." She professes allegiance to the U.S., and she also takes pride in her U.K citizenship. She keeps her U.K. citizenship because it is part of her heritage (GX 3 at 1; GX 4 at 6). She adhered to her position at the hearing (Tr. 40, 47). She intends to renew her U.K. passport when it expires (Tr. 45). When asked if she would keep her U.K. passport even if it meant losing her clearance, she responded that she probably would give up her clearance (Tr. 50).

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), as amended and modified. 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 security clearance." ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).

The Directive sets forth adjudicative guidelines for determining eligibility for access to classified information, and it lists the disqualifying conditions (DC) and mitigating conditions (MC) for each guideline. Each clearance decision must be a fair, impartial, and commonsense decision based on the relevant and material facts and circumstances, the whole person concept, and the factors listed in the Directive ¶¶ 6.3.1 through 6.3.6.

A person granted access to classified information enters into a special relationship with the government. The government must be able to have a high degree of trust and confidence in persons with access to classified information. However, the decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the government must establish, by substantial evidence, conditions in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. "Substantial evidence" is "more than a scintilla but less than a preponderance." See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). "[T]he Directive presumes there is a nexus or rational connection between proven conduct under any of the Criteria listed therein and an applicant's security suitability." ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)).

Once the government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3; see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531; see Directive ¶ E2.2.2.

CONCLUSION

When an applicant acts in such a way as to indicate a preference for a foreign country over the U.S., he or she may be prone to provide information or make decisions that are harmful to the interests of the U.S. Directive ¶ E2.A3.1.1. A disqualifying condition under Guideline C may arise if an individual exercises dual citizenship (DC 1), or possesses or uses a foreign passport (DC 2). Directive ¶¶ E2.A3.1.2.1., E2.A3.1.2.2. Use of a foreign passport is an exercise of dual citizenship. Applicant's exercise of her dual U.K-U.S. citizenship by possessing and using her U.K. passport establishes DC 1 and DC 2.

Dual citizenship standing alone is not sufficient to warrant an adverse security clearance decision. ISCR Case No. 99- 0454 at 5 (App. Bd. Oct. 17, 2000). Under Guideline C, "the issue is not whether an applicant is a dual national, but rather whether an applicant shows a preference for a foreign country through actions." ISCR Case No. 98-0252 at 5 (App. Bd. Sep 15, 1999).

When possession or use of a foreign passport is involved, the clarifying guidance issued by the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (the "Money Memorandum") dated August 16, 2000, requires denial of a clearance unless the applicant surrenders the foreign passport or obtains official approval for its use from the U.S. Government. Applicant is aware of the "Money Memorandum" and understands its implications. She stated at the hearing that she "probably" would keep her U.K. passport even if it prevents her from keeping her clearance.

A mitigating condition (MC 1) applies if dual citizenship is based solely on parents' citizenship or birth in a foreign country. Directive ¶ E2.A3.1.3.1. This mitigating condition is established because Applicant did not affirmatively seek foreign citizenship, but acquired it by virtue of her birth in the U.K to parents holding U.K. citizenship.

MC 2 applies if indicators of possible foreign preference occurred before the individual obtained U.S. citizenship. Directive ¶ E2.A3.1.3.2. This mitigating condition does not apply to Applicant, because she has continued to possess and use her U.K. passport after becoming a U.S. citizen.

In addition to considering the specific disqualifying and mitigating conditions under Guideline C, I have also considered: (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 applicant's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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. Directive ¶¶ E2.2.1.1 through E2.2.1.9.

Applicant is a mature adult who has held a clearance for many years. She is understandably proud of her heritage, and she does not believe her attachment to the U.K. affects her allegiance to the U.S. She was candid, honest, and sincere at the hearing. Her motive for using her U.K. passport while rushing to her parents' deathbeds was understandable, but it does not outweigh her continued and more recent refusal to surrender her passport after being advised of the "Money Memorandum." The guidance in the "Money Memorandum" precludes her from continuing to hold a clearance.

After weighing the disqualifying and mitigating conditions under Guideline C, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concern based on based on her possession and use of a foreign passport. Accordingly, I conclude she has not carried her burden of showing that it is clearly consistent with the interests of national interest to continue her security clearance.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline C (Foreign Preference): AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

DECISION

In light of all of the circumstances in this case, it is not clearly consistent with the national interest to continue a Applicant's security clearance. Clearance is denied.

LeRoy F. Foreman

Administrative Judge

FOOTNOTES

APPEARANCES

FOR GOVERNMENT Rita C. O'Brien, Esq., Department Counsel FOR APPLICANT Pro se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/06-08983.h1.html[7/2/2021 3:54:22 PM] 06-08983.h1