ISCR Case No. 02-09085

2-09085

<P STYLE="text-align: CENTER"><STRONG>APPEAL BOARD DECISION</STRONG></P>

<P STYLE="text-align: CENTER"><STRONG><SPAN STYLE="text-decoration: underline">APPEARANCES</ SPAN></STRONG></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR GOVERNMENT</STRONG></SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt">Peregrine D. Russell-Hunter, Esq., Chief Department Counsel</SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR APPLICANT</STRONG></SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG><EM>Pro Se</EM></STRONG></SPAN><SPAN STYLE="font-size: 11pt"><EM></EM></SPAN></P>

<P>Administrative Judge Richard A. Cefola issued a decision, dated October 29, 2002, in which he concluded it is not clearly consistent with the national interest

to grant or continue a security clearance for Applicant. Applicant appealed.</P>

<P>This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as

amended.</P>

<P>Applicant's appeal presents the following issues: (1) whether Applicant's loyalty to the United States was erroneously challenged; and (2) whether the

Administrative Judge's decision is arbitrary, capricious, or contrary to law. For the reasons that follow, the Board affirms the Administrative Judge's decision.</P>

<P><CENTER><STRONG>Procedural History</STRONG></ CENTER>

</P>

<P>The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) to Applicant, dated May 10, 2002. The SOR was based on Guideline C

(Foreign Preference) and Guideline B (Foreign Influence). A hearing was held on October 9, 2002.</ P>

<P>The Administrative Judge issued a written decision dated October 29, 2002, in which he 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.</P>

<P><CENTER><STRONG>Scope of Review</STRONG></CENTER>

</P>

<P>On appeal, the Board does not review a case <EM>de novo</EM>. 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. <EM>See</EM> Directive, Additional Procedural Guidance, Item E3.1.32. <EM>See also</EM> ISCR Case No. 00-0050 (July 23, 2001) at pp.

2-3 (discussing reasons why party must raise claims of error with specificity).</P>

<P>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 the same record. 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. <EM>See, e.g.</EM>, ISCR Case No. 99-0205 (October 19, 2000) at p. 2.</P>

<P>When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. <EM>See</EM> DISCR Case No.

87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).</P>

<P><CENTER><STRONG>Appeal Issues</STRONG><A HREF="#N_1_"><SUP> (1)</SUP>

<SPAN STYLE="text-decoration: underline">APPEARANCES</ SPAN></STRONG></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR GOVERNMENT</STRONG></SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt">Peregrine D. Russell-Hunter, Esq., Chief Department Counsel</SPAN></P>

<P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR APPLIC

al presents the following issues: (1) whether Applicant's loyalty to the United States was erroneously challenged; and (2) whether the

Administrative Judge's decision is arbitrary, capricious, or contrary to law. For the reasons that follow, the Board affirms the Administrative Judge's decision.</P>

<P><CENTER><STRONG>Procedural History</STRONG></ CENTER>

</P>

<P>The Defense Office of Hearings and Ap

als issued a Statement of Reasons (SOR) to Applicant, dated May 10, 2002. The SOR was based on Guideline C

(Foreign Preference) and Guideline B (Foreign Influence). A hearing was held on October 9, 2002.</ P>

<P>The Administrative Judge issued a written decision dated October 29, 2002, in which he 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.</P>

<P><CENTER><STRONG>Scope of Review</STRONG></CENTER>

</P>

<P>On appeal, the Board does not review a case <EM>de novo</EM>. 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. <EM>S

</EM> Directive, Additional Procedural Guidance, Item E3.1.32. <EM>See also</EM> ISCR Case No. 00-0050 (July 23, 2001) at pp.

2-3 (discussing reasons why party must raise claims of error with specificity).</P>

<P>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 the same record. 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. <EM>See, e.g.</EM>, ISCR Case No. 99-0205 (October 19, 2000) at p. 2.</P>

<P>When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. <EM>See</EM> DISCR Case No.

87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).</P>

<P><CENTER><STRONG>Appeal Issues</STRONG><A HREF="#N_1_"><SUP> (1)</SUP></A></CENTER>

</P>

<P>1. <SPAN STYLE="text-decoration: underline">Whether Applicant's loyalty to the United States was erroneously challenged</SPAN>. Applicant was born in a foreign country (hereinafter Country A)<A HREF="#N_2_"><SUP> (2)</SUP></A> and

immigrated to the United States in 1967. He became a naturalized United States citizen in 1974. He owns property and has relatives in Country A. The

Administrative Judge found that Applicant executed a sworn statement in July 2001 in which he expressed an intention to become a dual national by

reacquiring the citizenship of Country A.<A HREF="#N_3_"><SUP> (3)</SUP></A> The Judge also found that at the hearing he reaffirmed his intention to establish dual citizenship with Country A.

The Judge concluded that Applicant's intention to obtain Country A citizenship was unequivocal and evidenced a preference for Country A over the interests of

the United States. Therefore, it was not clearly consistent with the national interest to grant a security clearance to Applicant.</P>

<P>Applicant asserts on appeal that his loyalty to the United States has erroneously been called into question by the adverse decision of the Administrative Judge.

In making his foreign preference finding, the Administrative Judge made no comment that can be interpreted as questioning Applicant's loyalty to the United

States. In fact, the Judge noted that in seeking Country A citizenship, Applicant was in essence seeking to pledge allegiance to both countries. The Judge

made a security risk assessment based on Applicant's stated intention to obtain Country A citizenship at some time in the future. By stating such an intention,

Applicant, notwithstanding a professed loyalty to the United States, is indicating his future intention to place himself in a position where he may be forced to

choose between acting in accordance with the interests of Country A as opposed to those of the United States. The Administrative Judge, in keeping with the

"clearly consistent with the national interest" standard, could properly conclude that Applicant was stating an intention to take action that would place him in a

situation that raises serious security concerns. <EM>See, e.g.</EM>, ISCR Case No. 01-00677 (May 21, 2002) at p. 5 (noting that serious security concerns are raised by an

applicant's efforts to obtain foreign citizenship even if those efforts do not succeed); ISCR Case No. 99-0454 (October 17, 2000) at p. 6 (noting security

significance of an applicant's actions undertaken to protect the applicant's ability to claim the rights and privileges of foreign citizenship). The Judge's

conclusions were reached without questioning Applicant's loyalty to the United States.</P>

<P>2. <SPAN STYLE="text-decoration: underline">Whether the Administrative Judge's decision was arbitrary, capricious or contrary to law</SPAN>. On appeal, Applicant states: (i) the only reason he made a dual

citizenship inquiry was to enable him to own and register a car in Country A; (ii) the fact that Applicant inherited property in Country A and pays taxes on the

property to the Country A government should not suggest that his loyalty to the United States is compromised; and (iii) Applicant was simply making inquiry

into obtaining dual citizenship and now that he recognizes the gravity of the situation, he is willing to abandon his pursuit of dual citizenship. The Board

construes these arguments as asserting that the Judge's decision is arbitrary, capricious or contrary to law.</P>

<P>The acquiring of citizenship in a country (especially voluntarily as an adult) is a serious matter with profound consequences for an individual in numerous

aspects of his or her life. The motivations for obtaining citizenship do not enlarge or diminish the substantial bundle of rights and duties that flow from gaining

citizenship. The Administrative Judge was not obliged to dismiss as trivial Applicant's inquiries into obtaining Country A citizenship simply because

Applicant saw citizenship primarily as a means to own and register a car in Country A. The Administrative Judge was also not obliged to accept Applicant's

suggestion that his future exercise of Country A citizenship would be confined only to the purchase and registration of an automobile. Applicant's argument

does not establish error on the part of the Administrative Judge.</P>

<P>Applicant asserts that his holding of property and paying taxes on the property in Country A should not suggest that his loyalty to the United States is

compromised. As indicated at an earlier point in this decision, the Administrative Judge made no finding or conclusion that Applicant was not loyal to the

United States. To the extent Applicant argues that his holding of property in Country A and payment of property taxes in Country A do not provide a basis

(either in whole or part) for the Judge's adverse security clearance determination, Applicant's argument highlights a defect in the Judge's decision. It is not

clear from the Administrative Judge's decision whether or not Applicant's real property or tax obligations in Country A were part of his ultimate decision to

deny Applicant a security clearance. The Judge appears to base his decision to deny Applicant a clearance under the Foreign Preference Guideline (SOR

Paragraph 1, Guideline C) solely on Applicant's stated intention to obtain Country A citizenship. The Judge then discusses Applicant's financial interests in the

context of his analysis of the case under the Foreign Influence Guideline (Guideline B). There the Judge states, "As to his financial interests in Country A, I

also find them to be of little consequence when compared with his substantial financial interests in the U.S." Nevertheless, when making his formal findings at

the end of his decision, the Administrative Judge finds against Applicant under subparagraphs 1.c and 1.e of the SOR. The Judge fails to explain why he

concludes Applicant's ownership of a two-story home in Country A and his pay

ration: underline">Signed: Jeffrey D. Billett </SPAN></P>

<P>Jeffrey D. Billett</P>

<P>Administrative Judge</P>

<P>Member, Appeal Board</P>

<P><A NAME="N_1_">1. </A> The Administrative Judge ultimately made formal findings favorable to the Applicant under the SOR paragraph dealing with Guideline B, Foreign Influence

(Paragraph 2). Those favorable formal findings are