KEYWORD: Guideline C
DIGEST: In 2001 Applicant applied for and received Mexican citizenship in order to purchase
property in Mexico.  Applicant applied for voting rights in Mexico in order to obtain an
identification card proving Mexican citizenship.  There is a paucity of mitigating evidence  
Favorable decision reversed.
CASENO: 07-14151.a1
DATE: 09/10/2008
DATE: September 10, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-14151
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On February 29, 2008, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a decision on the written record.  On May 30, 2008, after considering the record,
Administrative Judge Henry Lazzaro 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 issue on appeal: whether the Judge’s favorable
application of Foreign Preference Mitigating Condition (FPMC) 11(b) is unsupported by record
evidence.  Finding error, we reverse.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following pertinent findings of fact: Applicant is a U.S. citizen by birth.
Her parents were citizens of Mexico.  Her father is now deceased, and her mother is a naturalized
U.S. citizen who lives with Applicant in the U.S.  Applicant’s husband was born in Mexico but has
been a U.S. citizen since 1977.
In 2001 Applicant applied for, and received, Mexican citizenship.  She did so in order to
purchase property in Mexico, currently worth about $15,000.00, for the purpose of eventually
constructing a vacation home on it.  Applicant applied for voting rights in Mexico in order to obtain
an identification card proving her Mexican citizenship and in order to secure ownership of the land.
She has not actually voted in Mexican elections.  Applicant has no other connections to Mexico.
“She asserts that her sole loyalty is to the United States and she is willing to renounce her Mexican
citizenship if it is a condition of her obtaining a security clearance.”  Decision at 3. 
B.  Discussion
The Appeal Board’s review of the Judge’s findings of fact is limited to determining if they
are supported by substantial evidence–“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.”
Directive  ¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.1.  
Department Counsel has not challenged the Judge’s findings of fact.  Applicant did not file
a brief on appeal.  Therefore, the Judge’s findings of fact are not an issue in this appeal.  
Whether the Record Supports the Judge’s Ultimate Conclusions
Directive ¶ E2.11(b): “[T]he individual has expressed a willingness to renounce dual citizenship[.]” This1
mitigating condition is unchanged from the previous version of the Adjudicative Guidelines, found at Directive ¶
E2.A3.1.3.4.  See ISCR Case No. 06-23453 at 4 (App. Bd. Nov. 14, 2007) (Prior precedent “remains valid where the
applicable language of the guideline is unchanged or the changes are not of sufficient magnitude to vitiate or overrule
the substance of the precedent.”)
3
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choices made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The
general standard is that a clearance may be granted only when ‘clearly consistent with the interests
of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
The Judge concluded that Applicant, by stating she would renounce her Mexican citizenship,
had met her burden of persuasion as to mitigation under Foreign Preference Mitigating Condition
11(b).   The Chief Department Counsel argues that Applicant’s willingness to renounce is1
conditional and, therefore, entitled to less weight than an expression of unconditional willingness
to do so.  See, e. g., ISCR Case No. 99-0295 (App. Bd. Oct. 20, 2000).  See ISCR Case No. 01-16098
at 3 (App. Bd. May 29, 2003).  The Board has considered the Judge’s decision in light of his
unchallenged findings of fact.  Applicant chose to have the case decided upon the written record,
with the  result that her credibility could not be evaluated in the context of a hearing.  See ISCR Case
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No. 08-00899 at 3 (App. Bd. Jul. 29, 2008).  Applicant did not to reply to the Government’s File of
Relevant Material; nor did she submit a reply brief on appeal.  Given the Judge’s unchallenged
findings that Applicant actively acquired Mexican citizenship and that she registered to vote in
Mexico; his unchallenged finding that she expressed merely a conditional willingness to renounce
her Mexican citizenship; and the paucity of record evidence as to mitigation, the Board concludes
that, on the facts of this case, Applicant has failed to meet her burden of persuasion under the Egan
standard.   See ISCR Case No. 99-0511 at 9 (App. Bd. Dec. 19, 2000) (The weight reasonably to be
assigned an applicant’s willingness to renounce foreign citizenship should be determined in the
context of the “clearly consistent with the national interest” standard.)  The record, viewed as a
whole, will not sustain the Judge’s favorable decision.  
Order
The Judge’s favorable security clearance decision is REVERSED. 
 
Signed: Michael Y. Ra’anan          
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: William S. Fields            
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board