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

ISCR Case No. 01-00677.a1

Appeal Board

Decided May 21, 2002 · Administrative Judge Michael Y. Ra'anan · Appeal

Reading

Workbench

Appeal at a glance

The appeal involved a review of an Administrative Judge's decision denying the applicant a security clearance based on foreign influence and preference. The applicant argued that the Judge erred in her conclusions, but the Board found no harmful errors and affirmed the decision.

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

Open original PDF

The complete official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

Appearances

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 specif

Procedural History

uate 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 fro

Procedural Matters

ting 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>Appeal Issues</CENTER>

The Administrative Judge entered favorable formal findings with respect to SOR paragraphs 1.b, 2.a, and 2.d. Those favorable formal findings are not at issue on appeal.

The Administrative Judge made extensive findings of fact in her decision. Applicant does not challenge the Judge's factual findings. Accordingly, the Board will discuss the Judge's factual findings only to the extent necessary to address the issues raised on appeal.

On appeal, Applicant relies on five decisions by DOHA Administrative Judges and cites to another decision he attributes to the Board. The Administrative Judge decisions are ISCR Case No. 99-0532 (March 17, 2000); ISCR Case No. 00-0185 (March 22, 2001); ISCR Case No. 00-0460 (May 15, 2001); ISCR Case No. 00-0485 (May 11, 2001); and ISCR Case No. 00-0489 (April 3, 2001). The purported Board decision is cited as ISCR Case No. 00-125. There is no Board decision with such a case number, and we have not identified any Board decision that resembles the one described by Applicant.<A HREF="#N_1_"> (1)</A> As for the Administrative Judge decisions cited by Applicant, the Board notes tho

Appeal Issues

Judge in this case, just as a decision by one trial judge is not legally binding on the trial judge's colleagues. Furthermore, as an appellate tribunal, the Board is not bound by decisions by DOHA Judges, but may consider whether it finds the reasoning of such decisions to be persuasive authority. See, e.g., ISCR Case No. 98-0761 (December 27, 1999) at p. 4 (discussing precedential value of Administrative Judge decisions).<A HREF="#N_2_"> (2)</ A>

1. Whether the Administrative Judge erred by concluding Applicant has demonstrated a foreign preference under Guideline C. The Administrative Judge concluded Applicant demonstrated a foreign preference under Guideline C because:

(a) Applicant sought to become recognized as a citizen of a foreign country (FC) but was "thwarted only because of his inability to produce his mother's birth certificate";

(b) since 1996, Applicant has served as a representative for FC in international softball sporting (as a coach, an umpire, and a non-voting delegate); and

(c) Applicant has acted on his own initiative to raise funds for FC softball activities.

The Judge noted that there was no evidence that Applicant had made any decisions inimical to the United States, but concluded Applicant "remains personally invested in [FC's] softball program to such an extent to engender security significant doubts as to whether he can be counted on to make decisions without regard to foreign interests."

Applicant contends the Administrative Judge erred by concluding he has demonstrated a foreign preference under Guideline C. In support of that contention, Applicant argues:

(i) he never applied for an FC passport, let alone carry and use one;

(ii) his motivation for inquiring about applying for an FC passport related to his desire to umpire at the Olympics, not a preference for a foreign country;

(iii) the evidence shows he denied any intent to apply for FC citizenship or an FC passport in the future;

(iv) his involvement with FC softball programs "is minimal when compared to a lifetime of involvement with [similar] programs in the United States and only occurs during limited time periods";

(v) the motivation for his ongoing involvement with FC softball programs stems from humanitarian motives, and he has not sought any financial benefit or personal gain for his actions;

(vi) his involvement with FC softball does not raise security concerns because the evidence shows he has served "only as an advisor," he does not set policy for the program,

Conclusion

ministrative Judge should give to similar evidence in Applicant's case. <A NAME="N_2_">2. </A> One of the Administrative Judge decisions cited by Applicant (ISCR Case No. 99-0532) was reversed by the Board on February 27, 2001. Accordingly, that decision h