KEYWORD: Guideline C; Guideline B
DIGEST: To the extent the Judge erred in his treatment of Guideline C disqualifying conditions,
such error is harmless in light of the Judge’s sustainable application of Guideline C mitigating
conditions.  The Judge’s consideration of Guideline B was not confined to the possibility of
coercive means of influence.  Favorable decision affirmed.
CASENO: 07-13232.a1
DATE: 07/08/2008
DATE: July 8, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-13232
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Emilio Jaksetic, Esq., Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
Identified in the record as Hearing Exhibit II.1
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clearance.  On November 26, 2007, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) and
B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On March 31, 2008, after the hearing, Administrative
Judge Edward W. Loughran granted Applicant’s request for a security clearance.  Department
Counsel filed a timely appeal pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge erred in
concluding that Applicant’s status did not raise Guideline C security concerns; and whether the
Judge’s favorable decision under Guideline B is arbitrary, capricious, or contrary to law.  Finding
no error, we affirm.
The Judge made the following pertinent findings of fact: Applicant is an engineer working
for a defense contractor.  Born in India, he came to the U.S. to attend graduate school.  He has held
an Indian passport, though he never used it.  
His parents are residents and citizens of India, as are his mother-in-law and father-in-law.
He has three siblings, one of whom is a citizen and resident of India, the remaining two being
citizens and residents of the U.S.  Applicant and his wife traveled to India four times in the recent
past to visit their parents.  He holds no foreign assets and has no intention of returning to India to
live.
Applicant has held a status called “Overseas Citizen of India” (OCI).  He did so in order to
facilitate foreign travel.  According to a Department of State Consular Information Sheet,  OCI is1
a status which permits a holder to travel to and from India, to work and study there, and to obtain
property there.  It is not a “dual nationality” program, being more in the nature of a green card.  This
document states that OCI status does not confer Indian citizenship upon a holder.  Applicant has
renounced his OCI status out of concern that it would affect his clearance eligibility.  He had
previously surrendered his Indian passport when applying for OCI status.
Department Counsel argued on appeal that the Judge’s favorable decision under Guideline
C did not take into account significant contrary record evidence.  OCI status, he contended, raises
a serious question as to whether Applicant has shown a preference for India over the U.S. and that
it was error for the Judge to conclude that Applicant’s OCI status did not raise security concerns
under Guideline C.  He stated that “it was arbitrary, capricious, and contrary to law for the . . . Judge
to conclude that only full foreign citizenship is covered under Adjudicative Guidelines ¶ 10.”
Department Counsel Brief at 7.  The Board has considered these arguments in light of the Judge’s
decision and the record as a whole, paying particular attention to the previously- referenced Consular
Information Sheet, an official U.S. document whose contents are binding upon the Judge.   See ISCR
Case No. 05-11292 at 4, n.1 (App. Bd. Apr. 12, 2007) (“. . . Official pronouncements by the
President, State Department, Department of Defense, or other appropriate federal agency on matters
It is not necessarily contradictory to find conduct or circumstances mitigated for the purposes of one guideline2
but still disqualifying in the context of relevant matters in another guideline.
Directive ¶ E2.11(b): “[T]he individual has expressed a willingness to renounce dual citizenship” and  Directive3
¶ E2.11(e): “[T]he passport has been destroyed, surrendered to the cognizant security authority, or otherwise
invalidated[.]”   
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of national security are equivalent to legislative facts for purposes of DOHA adjudications in that
they bind the Judge and are not subject to refutation . . .”) 
Without elaboration, the Consular information Sheet states that the OCI program does not
grant Indian citizenship.  The gravamen of Department Counsel’s argument is that the OCI program
establishes some form of citizenship, at least in the eyes of the Indian government.  The Judge had
to consider all the evidence but was bound by the Consular Information Sheet.  The record provides
no basis to hold that the Judge’s analysis of Applicant’s OCI status was error.  Moreover, there is
ambiguity in the Judge’s decision in that, after declaring that no Foreign Preference disqualifying
condition was raised by the OCI status, the Judge goes on to rely on Applicant’s renunciation of his
OCI status and surrender of his OCI card in his overall analysis of Guideline B.   This suggests that2
the Judge may, in fact, have attributed some security significance to the OCI status, notwithstanding
his one unequivocal statement to the contrary.  In any event, the Judge, in effect, concluded in the
alternative that Applicant had satisfied two Guideline C mitigating conditions  and this conclusion3
is sustainable on this record.  Therefore, to the extent the Judge erred in his treatment of the
disqualifying conditions, such error is harmless. 
Department Counsel also argues that it was arbitrary, capricious, and contrary to law for the
Judge to conclude that only full citizenship is covered under the Guidelines, ¶ 10.  The Board does
not interpret the Judge’s decision as asserting or implying such a position.  
Concerning Guideline B, Department Counsel is correct that the Government’s security
concerns are broader than the limited possibility of the use of coercive means of influence.
However, a review of the Judge’s decision leads the Board to conclude that the Judge did not confine
his analysis under Guideline B to only coercive means of influence.  Department Counsel’s brief
cites several passages where the Judge spoke solely in terms of “coercion.”  Yet, in other portions
of his Decision, the Judge uses terms like “inducement,” “persuasion,” and “conflicts of interest”
when discussing the potential security concerns raised by the presence of Applicant’s family
members in India.  Judges’ decisions are not measured by a standard of perfection.  The fact that the
Judge did not engage in a detailed discussion of bribery and illegal gratuities as forms of foreign
influence, and did not engage in the type of conflict of interest analysis proffered by Department
Counsel, does not establish error.  The terms used by the Judge, though general, are broad in scope
and fairly embrace the concept of non-coercive means of influence.  The Judge’s use of them
indicates that he considered an appropriate spectrum of types of foreign influence, and “a satisfactory
explanation for [his] conclusions, including a rational connection between the facts found” and his
ultimate decision, both as to the application of the mitigating conditions and the whole-person
analysis.  See ISCR Case No. 03-22861 at 2-3 9App. Bd. Jun. 2, 2006).  
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The record supports the Judge’s conclusion that Applicant has met his burden of persuasion
that it is “clearly consistent with the interests of the national security” for him to have a clearance.
See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  “The Board need not agree with a
Judge’s decision in order to find it sustainable.”  ISCR Case No. 06-23881 at 2 (App. Bd. November
2, 2007).  Accordingly, the Board concludes that the Judge’s decision, as to both Guidelines B and
C, is sustainable.
   
Order
The Judge’s favorable security clearance decision is AFFIRMED.  
Signed: Michael Y. Ra’anan            
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett                 
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                    
James E. Moody
Administrative Judge
Member, Appeal Board