1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 16-00905 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guideline C (Foreign Preference). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application (SCA) on December 10, 2014. On August 8, 2016, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline C. The DOD acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006.1 1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines. The SEAD 4 guidelines apply to all adjudicative decisions issued on or after June 8, 2017. My decision is based on the guidelines in SEAD 4. 2 Applicant answered the SOR on September 1, 2016, and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on October 14, 2016. On October 21, 2016, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on October 25, 2016, and he submitted a response, which has been included in the record without objection. The case was assigned to me on September 7, 2017. Findings of Fact Applicant admitted the allegations in the SOR and his response to the FORM. His admissions are incorporated in my findings of fact. Applicant is a 53-year-old master engineer employed by a defense contractor since September 2013. He was previously employed by defense contractors from May 2005 to August 2013. Applicant was born in Brazil. He attended a technical institute and a university in Brazil and received a bachelor’s degree in July 1988. He entered the United States on a student visa in January 1989 and became a U.S. citizen in February 2000. He obtained a master’s degree from a U.S. university in June 1991. He renewed his Brazilian passport in December 2010. Applicant’s first wife was a native of Brazil and a citizen of the United States. They married in December 1994 and divorced in June 1997. He married his current spouse, a native of Brazil and a citizen of the United States, in May 2004. He and his current spouse have two children, ages 10 and 5, who are native-born U.S. citizens. Applicant’s father is deceased. His mother, a retired school teacher, is a citizen and resident of Brazil. He has two brothers who are citizens and residents of Brazil and are employed by companies who seek contracts with the government of Brazil. He has two sisters. The older sister is involved in the real estate business, is a dual U.S.-Brazilian citizen, and resides in Brazil. His younger sister is a U.S. citizen residing in the United States. His youngest brother is a lawyer and a citizen and resident of Brazil. Applicant and his wife visit the family members in Brazil at least once a year, using Brazilian passports to enter and leave Brazil. They use their U.S. passports for all other foreign travel. When Applicant submitted his SCA, he disclosed that he voted in Brazilian elections in 1994 and every four years thereafter. In his response to the FORM, he stated that he believes that he and his wife are required to vote in Brazilian presidential elections to retain their Brazilian passports, which he needs to enter Brazil and visit his family members. He provided no official documents supporting his belief. 3 Applicant also disclosed in his SCA that he founded a non-profit philanthropic organization in Brazil in December 2001 to help small rural communities gain access to the Internet as a means of achieving social and economic development. He acted as he executive director of the organization from September 2003 to December 2005 and continues to provide support to the Brazilian organization in the form of advice, website maintenance, and financial support. All of his involvement with the organization has been as an unpaid volunteer. On my own motion and without objection by Department Counsel, I have taken administrative notice of relevant facts about Brazil, as reflected in the following Department of State publications: “U.S. Relations with Brazil,” dated January 27, 2017; “Country Information,” updated May 24, 2017; and “Country Reports on Human Rights Practices for 2016,” which are included in the record as Hearing Exhibits I through III. As of the date of this decision, The Department of States has issued no travel warnings for Brazil. Brazil is a constitutional, multi-party republic. The United States and Brazil are the two largest democracies and economies in the Western Hemisphere. They have a partnership that is rooted in a shared commitment to expand inclusive economic growth and prosperity, promote international peace, security, and respect for human rights; and strengthen defense and security cooperation. The two countries have a long history of exchanges in education, energy, health, science and technology, and innovation. They have extensive scientific exchanges at the individual level, as well as bilateral collaborations at the national level. They work together on key global, multilateral, and regional issues. Economic relations between the United States and Brazil are significant and growing. Brazil is the world’s ninth-largest economy and the United States is Brazil’s second-largest trading partner. There is no evidence that Brazil targets the United States for economic or military intelligence. The violent crime rate is high in most urban centers in Brazil, and travelers are advised to be aware of their surroundings and to avoid certain areas. Civilian authorities do not always maintain effective control over security forces. The most significant human rights abuses include excessive force and unlawful killings by state police, poor and sometimes life-threatening conditions in some prisons, and corruption. The government prosecutes officials who commit abuses, but an inefficient judicial process frequently delays adjudication of alleged abuses. Policies “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly 4 consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his [or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). 5 Analysis Guideline C, Foreign Preference The SOR alleges that Applicant, while a citizen of the United States, exercised his Brazilian citizenship by voting in Brazilian national elections in 2002, 2006, 2010, and 2014 (SOR ¶ 1.a) and by using his Brazilian passport to travel to Brazil in “at least” 2013 and 2014 (SOR ¶ 1.b). The concern under this guideline is set out in AG ¶ 9 of the guidelines applicable to all adjudications on or after June 8, 2017: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual's judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself; the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship. The following disqualifying conditions under this guideline are potentially applicable: AG ¶ 10(a): applying for and/or acquiring citizenship in any other country; AG ¶ 10(b): failure to report, or fully disclose when required, to an appropriate security official, the possession of a passport or identity card issued by any country other than the United States; AG ¶ 10(c): failure to use a U.S. passport when entering or exiting the U.S.; AG ¶ 10(d): participation in foreign activities, including but not limited to: (1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and (2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests; AG ¶ 10(e): using foreign citizenship to protect financial or business interests in another country in violation of U.S. law; and 6 AG ¶ 10(f): an act of expatriation from the United States such as declaration of intent to renounce U.S. citizenship, whether through words or actions. Dual citizenship standing alone is not sufficient to warrant an adverse security clearance decision. ISCR Case No. 99-0454 at 5, 2000 WL 1805219 (App. Bd. Oct. 17, 2000). Under Guideline C, “the issue is not whether an applicant is a dual national, but rather whether an applicant shows a preference for a foreign country through actions.” ISCR Case No. 98-0252 at 5 (App. Bd. Sep. 15, 1999). The security concern under this guideline is not limited to countries hostile to the U.S. “Under the facts of a given case, an applicant’s preference, explicit or implied, even for a nation with which the U.S. has enjoyed long and peaceful relations, might pose a challenge to U.S. interests.” ADP Case No. 07-14939 at 4 (App. Bd. Mar. 11, 2009). None of the disqualifying conditions in AG ¶¶ 10 are established. Applicant has taken no action to acquire foreign citizenship after becoming a U.S. citizen. There is no evidence that he has failed to comply with reporting requirements regarding his possession and use of a Brazilian passport or attempted to conceal it. To the contrary, he disclosed it in his e-QIP and his response to the FORM. There is no evidence that he used his Brazilian passport to enter or leave the United States. He has no foreign assets. He closed his foreign bank account in December 2004. He has not engaged in any acts of expatriation. He founded and continues to participate in the activities of a non-profit philanthropic organization in Brazil, but there is no evidence that the organization’s activities conflict with U.S. interests. Whole-Person Analysis The ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In applying the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(c).2 I have incorporated my comments under Guideline C in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(c). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). Based on the evidence submitted by Applicant I conclude that no 2 The factors are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. 7 disqualifying conditions are established. Thus, I conclude that he has carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline C (Foreign Preference): FOR APPLICANT Subparagraphs 1.a-1.b: For Applicant Conclusion I conclude that it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. LeRoy F. Foreman Administrative Judge