A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0489.a1

Appeal Board

Decided Jan 10, 2002 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved an applicant seeking a security clearance who argued that there were errors in the hearing transcript and that the Administrative Judge's decision was arbitrary and capricious. The Board affirmed the Administrative Judge's decision, finding no harmful errors and that the application of the ASDC3I memorandum was appropriate. The adverse decision was upheld based on the applicant's foreign preference and influence concerns.

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Appearances

>APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esq., Department Counsel

<P STYL

Procedural History

Administrative Judge Elizabeth M. Matchinski issued a decision, dated April 3, 2001, in which she concluded it is not clearly consistent with the

national interest to grant or continue a security clearance for Applicant. Applicant appealed. For the reasons set forth below, the Board affirms

the Administrative Judge's decision.

This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2,

1992, as amended.

Applicant's appeal presents the following issues: (1) whether there were prejudicial errors in the hearing transcript; (2) whether the Administrative

Judge erred by applying a memorandum issued by the Assistant Secretary of Defense for Command, Control, Communications and Intelligence;

and (3) whether the Administrative Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated Sept

Appeal Board Summary Disposition

er 11, 2000 to Applicant. The SOR was

based on Guideline C (Foreign Preference) and Guideline B (Foreign Influence).

A hearing was held on January 31, 2001. The Administrative Judge issued a written decision, dated April 3, 2001, in which she concluded it is not

clearly consistent with the national interest to grant or continue a security clearance for Applicant. The case is before the Board on Applicant's

appeal from the Judge's adverse decision.

After filing notice of appeal, Applicant asked for an extension of time to submit his appeal brief so that he could obtain a copy of a tape recording

of his hearing. Applicant based his request on his contention that the hearing transcript contained serious inaccuracies. Department Counsel

opposed Applicant's request for an extension of time. Applicant was granted additional time to pursue his request elsewhere in the Defense Office

of Hearings and Appeal because the Chairman did not have jurisdiction or authority to grant or deny

Judges Findings

plicant's request for a copy of a tape

recording of his hearing. Applicant was unable to obtain a copy of a tape recording of his hearing.

Applicant filed an appeal brief and Department Counsel submitted a reply brief.

<CENTER>Scope of Review</CENTER>

On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine whether

there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and

identify how the Administrative Judge committed factual or legal error. See Directive, Additional Procedural Guidance, Item E3.1.32. See, e.g.,

ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).

When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact

are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary

evidence. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge." Directive,

Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is record evidence supporting a Judge's

findings, but also whether there is evidence that fairly detracts from the weight of the evidence supporting those findings. See, e.g., ISCR Case

No. 99-0205 (October 19, 2000) at p. 2.

When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. See DISCR

Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).

<CENTER>Administrative Judge's Findings</CENTER>

Applicant was born in a foreign country (FC) in 1945, and was raised with all the rights and privileges of an FC citizen.

Applicant came to the United States in 1968 to pursue graduate studies while his parents and three siblings remained resident citizens of FC.

Applicant received his graduate degrees in the United States in 1970 and 1973.

By 1974, Applicant decided to become a permanent resident and citizen of the United States. To that end, Applicant applied for and received

deferments from mandatory military service and the draft in FC.

After Applicant obtained permanent resident status in the United States, he el

Judges Analysis

ed to travel on documents issued by the United States instead of

an FC passport. In 1978, the United States issued to Applicant travel documents based on his status as a permanent resident alien.

In 1982, Applicant became a naturalized U.S. citizen. Applicant was not required to relinquish his FC citizenship when he became a U.S. citizen

and he took no action to do so. However, Applicant no longer voted in FC elections or accepted any educational, medical, or other benefits from

FC.

In June 1982, Applicant was issued a U.S. passport, which he renewed on its expiration. Applicant used his U.S. passport exclusively when

traveling abroad, using it to enter and exit FC. Applicant continued to maintain an FC passport on an intermittent basis (when he intended to travel

to FC) to show to FC authorities for purposes of identification under various circumstances.

In 1994, Applicant found himself unemployed after a reduction in force. Applicant started his own consulting company in the United States. After

Applicant learned of a joint initiative of the United States and FC governments to stimulate private business in FC, he traveled to FC in July 1997

as a self-employed independent consultant, farming out ideas for a project for potential funding under the joint initiative. For seven days in

September 1997, Applicant served as a non-paid consultant for the FC geological survey agency. Applicant's business trip resulted in significant

Appeal Issues

ost with no financial return as his proposal was not accepted.

Applicant returned to the United States and secured employment with a defense contractor in November 1998. At that time, Applicant looked for

his current FC passport, but could find only the FC passport that had expired in December 1997. Because Applicant had applied for renewal of

his FC passport, he disclosed on a security questionnaire that he had an FC passport as a means of identification to show FC origin, which was

useful to prove his identity when in FC. Applicant also reported: his dual citizenship with the United States and FC; the FC citizenship and

residency of his mother, his in-laws, his two brothers, and a sister; his travel to FC on three separate occasions.

Applicant applied to renew his FC passport in 1997 when he was in FC. Applicant stated that when he left FC, he forgot the new FC passport in

FC or lost it. Applicant has his previous FC passport, which was canceled. The totality of the evidence indicates that Applicant's FC renewal

application was granted. Applicant has tried to get or replace the FC passport because he did not want it to fall into the wrong hands and he wants

to maintain the ability to identify himself when traveling to FC. On three or four occasions, Applicant has asked his sister in FC about the FC

passport, but he has made no effort to contact FC authorities to determine whether the FC passport was in fact renewed.

In 1999, Applicant told an investigator: (a) all his foreign travel has been made with his U.S. passport; (b) he probably would be willing to

relinquish the FC passport if required for him to get access to classified information, but he viewed renunciation of his FC citizenship as a denial of

his FC birth; (c) he foresaw the possibility of having to travel to FC on an emergency or urgent basis to fulfill family obligations; (d) he denied he

had any known obligation of FC citizenship; (e) although he referred to an inheritance on his security questionnaire, he indicated he was not aware

of any specific financial asset in his name; (f) he denied any employment as an agent or official representative of FC; and (g) he denied any intent to

use a position of trust in the United States to influence decisions in order to serve the interests of FC in preference to the United States.

Applicant traveled to FC in late 1999 to visit his sister who was suffering from a serious illness. Applicant entered FC using his U.S. passport.

Apart from a couple inquiries of his sister (now deceased), Applicant made no effort to locate the FC passport renewed following his application in

1997.

As of the hearing, Applicant has not made an effort to contact FC authorities about his missing FC passport or to ask about procedures to

surrender it because he hoped to be able to continue to maintain his FC passport for identification purposes for himself and his family. Applicant

indicated that surrender of his FC passport would have implications for his family and his wife.

Applicant has no intent to renounce his FC citizenship, but he would relinquish his FC passport "with great reluctance" if it was mandated in order

to get a security clearance.

Applicant's spouse is a naturalized U.S. citizen, and their two children are U.S. citizens by birth in this country. Applicant's mother, father-in-law,

and two brothers are resident citizens of FC. Applicant's mother is a retired professor and his father-in-law is a retired businessman who had his

own company selling food products. Applicant's brothers both are professionals in FC: one is a physician with his own medical practice, the other

works at a clinic and teaches at a university which receives FC funding.

Applicant's father died in 1984. Applicant inherited a fractional proportion of his father's estate (including half a house which members of

Applicant's family are currently using), but he realizes no financial benefit from his interest in his father's estate.

Former and current professional colleagues strongly support Applicant's application for a security clearance; they have confidence that Applicant

would comply with the obligations of a security clearance.

<CENTER>Administrative Judge's Conclusions</CENTER>

Applicant's possession and use of an FC passport falls under the terms of the August 16, 2000 memorandum by the Assistant Secretary of

Defense for Command, Control, Communications, and Intelligence (ASDC3I) concerning adjudication of security clearance cases involving

foreign passports. Applicant's inability to locate his current FC passport does not eliminate security concerns because Applicant's renewal of the

FC passport has Guideline C implications.

The fact that Applicant has misplaced his FC passport does not render the ASDC3I memorandum inapplicable to his case. Applicant's decision

to make no effort to locate his missing FC passport does not amount to surrender of it under the terms of the ASDC3I memorandum. Moreover,

Applicant's claim that he obtained and used an FC passport because he needed it to verify his identity to FC authorities for various purposes is a

claim of necessity that is not recognized by the ASDC3I memorandum.

Applicant would like to maintain an FC passport for identification purposes and it was his intent to replace the missing FC passport. Applicant has

expressed a willingness to relinquish his FC passport only if ordered to do so in order to obtain a security clearance. Applicant's conditional

willingness to relinquish the FC passport, when coupled with his expressed unwillingness to relinquish his FC citizenship, is not enough to overcome

the foreign preference concerns in this case, which are magnified by the presence of close family members in FC and Applicant's sense of familial

obligation which makes him so reluctant to relinquish his FC passport.

There is a factual and logical connection between Applicant's renewal of his FC passport and his ties to family members in FC. The totality of the

circumstances of Applicant's family ties in FC raise security concerns under Guideline B, and his statements about why he needs an FC passport

do little to dispel those security concerns.

Applicant's efforts to seek out a possible business venture in FC in 1997 raises foreign preference concerns because it has not been established

that his efforts were sponsored by the U.S. government or that his proposed projects for funding and individual contacts were consistent with U.S.

interests.

Applicant's application for a security clearance is strongly supported by former and present professional colleagues. However, that support and

Applicant's contributions to the defense industry are not enough to overcome the security concerns raised under Guideline C (Foreign Preference)

and Guideline B (Foreign Influence). Because Applicant's financial interests in FC are minimal, SOR paragraph 2.b is found in his favor.

However, adverse findings are warranted with respect to the rest of the SOR paragraphs (1.a, 1.b, 1.c, and 2.a).

It is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.

<CENTER>Appeal Issues</CENTER>

1. Whether there were prejudicial errors in the hearing transcript. Applicant contends there are 40 errors in the hearing transcript<A HREF="#N_1_"> (1)</A> and asserts

that the "errors in the transcript raised enough concerns unrelated to the Applicant in the mind of the Administrative Judge that made the already

heavy burden of proof placed on the Applicant impossible to meet."

The Board reviews an Administrative Judge's security clearance decision to determine whether or not the Judge made any factual or legal error

that was harmful to the appealing party. Directive, Additional Procedural Guidance, Item E3.1.32. To the extent that an appealing party raises

claims of procedural error, the Board must consider whether: (a) the alleged procedural errors occurred, and (b) if procedural errors did occur,

did they result in any prejudice to the appealing party.

When a hearing is conducted, the presiding Administrative Judge personally hears the words spoken by the parties and witnesses, and there is a

rebuttable presumption that a Judge considers all the record evidence unless the Judge specifically states otherwise. Therefore, even if there are

errors in a hearing transcript, an appealing party must demonstrate that such errors: (a) resulted in factual or legal error by the Judge, and (b) that

such errors were harmful to the appealing party. Without such a showing, the mere presence of errors in a hearing transcript does not constitute

error that warrants remand or reversal.

Applicant specifically characterizes 12 alleged errors in the hearing transcript as "benign."<A HREF="#N_2_"> (2)</A> The Board must address "the material issues raised by

the parties." Directive, Additional Procedural Guidance, Item E3.1.32. No useful purpose would be served by addressing alleged transcript

errors that even Applicant characterizes as "benign."

Applicant characterizes 7 alleged errors in the hearing transcript as inaccuracies by the transcriber without stating whether he considers them as

"benign" or "harmful" error.<A HREF="#N_3_"> (3)</A> After reviewing those 7 claims of error, the Board concludes that, even if the hearing transcript were in error as

alleged by Applicant, the errors identified by Applicant would be essentially trivial ones that do not reflect any factual or legal error by the

Administrative Judge in her decision.

Applicant identifies one brief passage in the hearing transcript and states "[m]ust have tape- recording to correct."<A HREF="#N_4_"> (4)</A> As the appealing party,

Applicant must identify claims of error with specificity. See, e.g., ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3. Because Applicant fails to

indicate how this alleged error in the hearing transcript reflects any factual or legal error by the Administrative Judge or how this alleged error

harmed or prejudiced Applicant, this claim of error lacks sufficient specificity to warrant consideration by the Board.<A HREF="#N_5_"> (5)</A>

As for the remainder of Applicant's claims of errors in the hearing transcript, the Board has reviewed them and concludes the following: (a) with

respect to 17 claims of transcript errors<A HREF="#N_6_"> (6)</A> a review of the decision below persuades the Board that there is no indication that the alleged errors

confused or misled the Judge or resulted in any unwarranted finding or conclusion in the Judge's decision; and (b) with respect to 3 other claims of

transcript errors<A HREF="#N_7_"> (7)</A> a review of the decision shows the Administrative Judge made factual findings consistent with Applicant's interpretation of the

record evidence and, therefore, any errors in the transcript clearly did not confuse or mislead the Judge.

2. Whether the Administrative Judge erred by applying a memorandum issued by the Assistant Secretary of Defense for Command, Control,

Communications and Intelligence. On appeal, Applicant argues: (a) the ASDC3I memorandum was not in existence when he last visited FC and

the Administrative Judge erred by applying the ASDC3I memorandum retroactively to his past conduct; (b) his use of an FC passport before the

ASDC3I memorandum was issued was consistent with Guideline C; (c) application of the ASDC3I memorandum is unwarranted because the

facts and circumstances of his possession and use of an FC passport do not demonstrate he has a preference for FC; and (d) application of the

ASDC3I memorandum is not warranted because he does not currently possess an FC passport. These arguments raise the issue of whether the

Judge erred by applying the ASDC3I memorandum to Applicant's case.

Under Section 5.1 of the Directive, the ASDC3I has the authority to, inter alia, establish adjudicative standards, oversee the application of such

standards, and to issue clarifying guidance and instructions. The ASDC3I memo falls within the scope of Section 5.1. See, e.g., ISCR Case No.

99-0481 (November 29, 2000) at p. 5 n.1. Under the Directive, neither a DOHA Administrative Judge nor this Board has the authority or

discretion to ignore, disregard, or decline to apply the ASDC3I memo. Indeed, DOHA Administrative Judges and this Board must make

decisions "in accordance with policy, procedures, and standards established by [the] Directive." Directive, Section 5.2.14. Accordingly, both

DOHA Judges and this Board must apply the ASDC3I memorandum in any case to which it is applicable. See, e.g., ISCR Case No. 01-00783

(December 19, 2001) at pp. 4-5; ISCR Case No. 00-0009 (September 26, 2001) at p. 3.

(a) Application of the ASDC3I memorandum to an applicant's conduct that was undertaken before the issuance of that memorandum does not

violate the Ex Post Facto Clause or the Due Process Clause of the U.S. Constitution. See ISCR Case No. 99-0424 (February 8, 2001) at pp.

7-8 (discussing federal cases). Therefore, the Administrative Judge did not err by applying the ASDC3I memorandum to Applicant's case even

though Applicant obtained an FC passport before that memorandum was issued.

(b) Even if the Board were to assume solely for the purposes of deciding this appeal that Applicant's possession and use of an FC passport in the

past were consistent with then-existing DoD policy and standards, such an assumption would not lead the Board to conclude the Administrative

Judge erred. Applicant's security eligibility at this time must be adjudicated under current DoD policy and standards, not past DoD policy and

standards. See, e.g., ISCR Case No. 01-00783 (December 19, 2001) at p. 5.

Applicant's reliance on two State Department documents (Exhibits B and C) does not demonstrate the Administrative Judge erred by applying the

ASDC3I memorandum. Exhibit B is a document entitled "Dual Nationality" that appears on the State Department Web site. Although Exhibit B

recognizes that some foreign countries require dual nationals to use their passports to enter and leave those countries, nothing in Exhibit B states or

indicates that the U.S. government affirmatively authorizes or approves of the use of a foreign passport in those situations. See ISCR Case No.

99-0511 (December 19, 2000) at p. 13 (State Department recognition of the existence of a practice by some countries concerning use of foreign

passports, without the State Department endorsing or objecting to that practice, does not constitute State Department approval or ratification of

the practice). Furthermore, Exhibit C (a State Department Consular Information Sheet on FC) specifically notes that dual nationals may use their

U.S. passports to enter and leave FC. Furthermore, nothing in Exhibit C states or indicates that the U.S. government affirmatively authorizes or

approves of the use of an FC passport by a dual national. Indeed, as noted by Department Counsel, Applicant conceded at the hearing (Hearing

Transcript at p. 145) that he did not receive official U.S. government approval to use an FC passport. Finally, nothing in Executive Order 12968,

Executive Order 10865, or the Directive requires that DoD policies, practices, or procedures in security clearance adjudications must follow or be

consistent with State Department policies, practices or procedures, especially ones that on their face do not deal with security clearance

adjudications. See ISCR Case No. 99-0424 (February 8, 2001) at p. 6.<A HREF="#N_8_"> (8)</A>

(c) Applicant's argument that he only used the FC passport when he could not use his U.S. passport in FC fails to demonstrate the Administrative

Judge erred in applying the ASDC3I memorandum. The Judge specifically noted Applicant's explanation for why he used an FC passport and

concluded that the ASDC3I memorandum does not provide for a claim of necessity as extenuation or mitigation of the possession and use of a

foreign passport. The Judge's interpretation of the ASDC3I memorandum concerning claims of necessity is legally correct. See, e.g., ISCR Case

No. 99-0532 (February 27, 2001) at p. 6 (noting ASDC3I memorandum superseded prior Board rulings on legal necessity); ISCR Case No. 99-0519 (February 23, 2001) at p. 7 (same).

(d) Applicant contends the Administrative Judge should not have applied the ASDC3I memorandum in his case because he currently does not

possess an unexpired FC passport.

The following findings by the Administrative Judge are relevant to this appeal issue: (i) Applicant is an FC citizen by birth and a U.S. citizen by

naturalization; (ii) Applicant does not wish to renounce his FC citizenship; (iii) Applicant has relied on an FC passport as a form of identification

when visiting FC; (iv) Applicant renewed the FC passport in 1997 when he was visiting FC; (v) Applicant foresees the possibility that he would

have to travel to FC on an emergency or urgent basis to fulfill family obligations; (vi) Applicant now indicates that he would make no effort to

locate his missing FC passport; (vii) Applicant would like to be able to use an FC passport as identification when he is traveling in FC; (viii)

Applicant would relinquish his FC passport only if ordered to do so to get a security clearance; and (ix) although Applicant does not presently

have physical possession of his FC passport, he may find it and can ask FC authorities for a replacement passport.

Considering the record as a whole (including the evidence that Applicant is reluctant to forego the use of an FC passport for identification when he

travels to FC, the evidence that Applicant has immediate family in FC that he probably will visit in the future, and the evidence that Applicant has

given somewhat vague and inconsistent explanations about the location of his FC passport) it was not arbitrary or capricious for the Administrative

Judge to conclude that Applicant had failed to show that h

Appeal Board Summary Disposition

ad surrendered his FC passport within the meaning of the ASDC3I memorandum.

Applicant had the burden of presenting persuasive evidence to demonstrate that he satisfied the terms of the ASDC3I memorandum sufficiently to

warrant a favorable security clearance decision. See Directive, Additional Procedural Guidance, Item E3.1.15. Because the record evidence

shows Applicant is somewhat equivocal in his inten