DATE: October 22, 2001
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
CLAUDE R. HEINY
APPEARANCES
FOR GOVERNMENT
Arthur A. Elkins, Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
The Applicant was born in Trinidad and Tobago (1) and became a naturalized US citizen in 1978. Although the Applicant has siblings and in-laws living in foreign countries, this fact does not require denial of his clearance because his contacts with them are casual and infrequent, and they could not force Appellant to choose between loyalty to them and the United States. In February 1998, the Applicant reapplied for dual citizenship with the country of his birth because he wanted to be able to go back home to work and stay indefinitely. The Applicant currently holds dual citizenship with the US and Trinidad and Tobago. Because the Applicant decided to reestablish his foreign citizenship, clearance is denied.
STATEMENT OF THE CASE
On February 23, 2001, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding (2) it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. In a response dated March 20, 2001, the Applicant answered the SOR and elected to have his case decided on the written record, in lieu of a hearing.
On July 10, 2001, the Applicant received a complete copy of the file of relevant material (FORM) dated June 8, 2001, and was given the opportunity to file objections and submit material in extenuation, mitigation, or refutation. The Applicant responded (3) to the FORM on August 20, 2001. I was assigned the case on August 24, 2001. The Department Counsel presented five exhibits (Items) in the FORM. The record in this case closed on August 20, 2001.
The SOR alleges foreign influence (Guideline B) and foreign preference (Guideline C). The Applicant admitted some of the allegations and added explanation to subparagraph 2.b. without admitting or denying the allegation.
The Applicant is 63 years old and has worked for a defense contractor since December 1996. He had previously worked for another defense contractor starting in September 1984. He is seeking to maintain a secret security clearance. The Applicant cites his 15 years of dedicated service as justification for maintaining his clearance. The Applicant feels equal loyalty to the US and Trinidad and Tobago.
The Applicant was born in Trinidad and Tobago. In 1966, at the age of 27, the Applicant moved to the US Virgin Islands (VI). In August 1978, he became a naturalized US citizen. At the time he became a US citizen renounced his citizenship with Trinidad and Tobago. His spouse is a citizen of the US and Trinidad and Tobago residing in the VI. She became a naturalized US citizen in December 1994, but did not renounce her Trinidad and Tobago citizenship. The Applicant's two sons are US citizens living in the US. One son currently serves in the US Navy. The Applicant's grandchildren are US citizens.
The Applicant's brother (retired), his mother-in-law (unemployed), two sisters-in-law (a bank employee and unemployed), and two brothers-in-law (a power company employee and retired) reside in Trinidad. He has weekly telephone contact with his mother-in-law and sister-in-law. He talks with his brother telephonically once a month. He has yearly contact with one brother-in-law and no contact with his other brother-in-law. He contacts his relatives during his yearly visits to Trinidad and Tobago.
The Applicant has two brothers (a telephone company employee and a national lottery employee), a sister (unknown employment, if any), and a sister-in-law (unknown employment, if any) who live in Canada. His contact with them is limited. He has telephonic contact with his siblings once a year and no contact with his sister-in-law. He has never visited them in Canada. In the past ten years they have not visited him. Although the relatives reside in foreign countries, their citizenship can not be determined from the FORM, except for one of his brothers who has US residence status.
The Applicant visited Trinidad and Tobago once a year from 1990 through 1994, in 1996, 1998, and 2000. He visited Trinidad and Tobago four times in 1995, twice in 1997. In 1999, the Applicant made two trips of two weeks each to Trinidad and Tobago. The trips were made to visit his family. He intends to continue his yearly trips to Trinidad and Tobago. On the Applicant's Security Clearance Application (Standard Form 86) dated September 1999, in response to question 16 asking the Applicant which foreign countries he had visited in the previous seven years only the two trips made in 1999 were listed.
The Applicant holds dual citizenship with the US and Trinidad and Tobago. In February 1998, the Applicant reapplied for citizenship with Trinidad and Tobago because he wanted to be able to go back home and stay indefinitely. (Item 5, page 2). If not a citizen, visitors are asked how long they intend to stay. The Applicant wanted to be able to stay indefinitely without being asked. He wants to be able to work and reside in Trinidad indefinitely after he retires from his present employment. The cost of living is cheaper there, than in his current location. Additionally, the Applicant considers Trinidad and Tobago "home." The Applicant's decision to become a dual citizen was to make his life easier after retirement. (Item 3)
The Applicant has a US passport, issued in April 1994, which is stamped indicating the Applicant is a citizen of Trinidad and Tobago through "restoration. (4)" (Item 5, page 2) The Applicant states he is unwilling to renounce his foreign citizenship if requested to do so unless it is for "political reasons." The Applicant does not explain what he means by "political reasons."
The Applicant has never served in a foreign military and has no rights, privileges, or obligations to Trinidad and Tobago. He owns no foreign real estate but does have a savings account in a bank in Trinidad and Tobago. He does not maintain his dual citizenship to protect financial interests.
The Adjudicative Guidelines in the Directive are not a set of inflexible rules of procedure. Instead, they are to be applied by Administrative Judges on a case-by-case basis with an eye toward making determinations that are clearly consistent with the interests of national security. In making overall common sense determinations, Administrative Judges must consider, assess, and analyze the evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines, but in the context of factors set forth in section E 2.2.1. of the Directive as well. In that vein, the government not only has the burden of proving any controverted fact(s) alleged in the SOR, it must also demonstrate the facts proven have a nexus to an Applicant's security worthiness.
The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance.
Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:
Foreign Preference (Guideline C) The Concern: 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 be prone to provide information or make decisions that are harmful to the interests of the United States.
Conditions that could raise a security concern and may be disqualifying include:
1. The exercise of dual citizenship. E2.A3.1.2.1.
4. Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country. E2.A3.1.2.4.
Conditions that could mitigate security concerns include:
None Apply
Foreign Influence (Guideline B) The Concern: A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.
Conditions that could raise a security concern and may be disqualifying include:
1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country. E2.A2.1.2.1.
Conditions that could mitigate security concerns include:
1. A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States. E2.A2.1.3.1.
3. Contact and correspondence with foreign citizens are casual and infrequent. E2.A2.1.3.3.
Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the Applicant who must remove that doubt and establish his security suitability with substantial evidence in explanation, mitigation, extenuation, or refutation, sufficient to demonstrate that despite the existence of guideline conduct, it is clearly consistent with the national interest to grant or continue his security clearance.
A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." As this Administrative Judge understands the Court's rationale, doubts are to be resolved against the applicant.
Under Guideline C, the security eligibility of an applicant is placed into question when an individual acts in such a way as to indicate a preference for a foreign country over the United States; he or she may then be prone to provide information or make decisions that are harmful to the interests of the United States.
The Applicant holds dual citizenship with the US and Trinidad and Tobago. In February 1998, the Applicant reapplied for citizenship with Trinidad and Tobago because he wanted to be able to go back home and stay indefinitely. As a resident he has the benefit of being able to work and reside in Trinidad indefinitely without being asked how long he intends to stay. He made the decision to become a dual citizen to make his life easier after retirement from his present job. The Applicant has been a naturalized citizen since 1978 but still considers Trinidad and Tobago home. His US passport indicates the Applicant is a citizen of Trinidad and Tobago through restoration. Disqualifying Condition (DC) 1 (5) applies.
The Applicant has chosen to reestablish his foreign citizenship for "other benefits" from a foreign country, DC 4. (6) Although the benefit the Applicant receives is not educational, medical, or social welfare it is still a benefit. He is allowed to work and reside in Trinidad indefinitely without being questioned.
None of the Mitigating Conditions (MC) apply. The Applicant's dual citizenship is not based
solely on his parents' citizenship or birth in a foreign country (MC 1) because the Applicant took specific action in 1998 to reapply for his foreign citizenship after becoming a naturalized US citizen 21 years earlier. Since his indication of foreign preference occurred after obtaining US citizenship, MC 2 does not apply. The activity is not sanctioned by the United States (MC 3). The Applicant has not expressed a willingness to renounce dual citizenship. (MC 4) In fact the Applicant has stated he is unwilling to renounce his foreign citizenship if requested to do so, unless it was for "political reasons," a term the Applicant does not explain.
Because the Applicant has decided to reestablish his citizenship with Trinidad and Tobago and none of the mitigating conditions apply, I find against the Applicant as to SOR subparagraph 1.a. and 1.b.
The Government has satisfied its initial burden of proof under Guideline B, (Foreign Influence). Under Guideline B, the security eligibility of an applicant is placed into question when the person has immediate family members who are citizens of and/or residing in a foreign country. A security risk may exist where the Applicant is bound by affection, influence, or obligation to individuals who are not citizens of the United States or may be subject to duress. The Applicant's immediate family, i.e., spouse, sons and grandchildren, are US citizens living in the US. His wife, although a naturalized US citizen, is also a citizen of Trinidad and Tobago. I find the Applicant's wife is not an agent of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the persons involved and the United States. MC 1 (7) applies. I find for the Applicant as to SOR subparagraph 2.a.
The Applicant has numerous siblings and in-laws which reside in and are citizens of foreign countries. The Applicant's brother, his mother-in-law, two sisters-in-law, and two brothers-in-law reside in Trinidad and two brothers, a sister, and a sister-in-law live in Canada. The FORM establishes where these individuals live but not their citizenship. The Applicant visits his mother-in-law and sister-in-law on a yearly basis and has weekly telephone contact with them. His visits to them are casual and infrequent. His telephone contact is casual but frequent. Both of these in-laws are unemployed. There is no indication they are agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to his mother-in-law and sister-in-law and the United States. I find for the Applicant as to SOR subparagraph 2.b.
The Applicant's contact with his relatives living in Canada is limited or non existent. He has telephonic contact with his Canadian siblings once a year and no contact with his sister-in-law. He has no contact with one of his brothers-in-law in Trinidad, yearly contact with his other brother-in-law, and monthly telephonic contact with his brother in Trinidad. MC 3 (8) applies to the Applicant's contacts with his brother and sister-in-law residing in Trinidad. I find for the Applicant as to SOR subparagraph 2.c.
The Applicant cites his 15 years of dedicated service as justification for maintaining his clearance. The Applicant's duty performance is not an issue in this case. His point concerning his duty performance is not frivolous, but it is misplaced. An Applicant's security suitability is not determined solely on the basis of his job performance but more often includes consideration of other factors unrelated to job performance. The fact the Applicant had been employed with a defense firm and has a good duty performance at that company, is not sufficient in and of itself to require a ruling in the Applicant's favor.
In reaching my conclusions I have also considered: the nature, extent, and seriousness of the conduct; the Applicant's age and maturity at the time of the conduct; the circumstances surrounding the conduct; the Applicant's voluntary and knowledgeable participation; the motivation for the conduct; the frequency and recency of the conduct; presence or absence of rehabilitation; potential for pressure, coercion, exploitation, or duress; and the probability the circumstance or conduct will continue or recur in the future.
Formal Findings as required by Section 3., Paragraph 7. , of Enclosure 1 of the Directive are hereby rendered as follows:
Paragraph 1 Guideline C (Foreign Preference): AGAINST THE APPLICANT
Subparagraph 1.a.: Against the Applicant
Subparagraph 1.b.: Against the Applicant
Paragraph 2 Guideline B (Foreign Influence): FOR THE APPLICANT
Subparagraph 2.a.: For the Applicant
Subparagraph 2.b.: For the Applicant
Subparagraph 2.c.: For the Applicant
In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant.
1. Trinidad and Tobago are a single island country. Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended.
3. As a response, the Applicant returned all the material he received on July 10, 2001 without adding any additional material or commenting on the FORM he received.
There is no indication if the stamp concerning restoration was applied in 1994, when the passport was issued, or was added later. The Applicant indicates it was four years later, in 1998, he
reapplied for foreign citizenship.
5. DC 1. The exercise of dual citizenship. E2.A3.1.2.1.
6. DC 4. Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country. E2.A3.1.2.4.
7. MC 1. A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign
power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States. E2.A2.1.3.1.
8. MC 3. Contact and correspondence with foreign citizens are casual and infrequent. E2.A2.1.3.3.