DATE: August 5, 2002

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SSN: ----------------------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

BARRY M. SAX

APPEARANCES

FOR GOVERNMENT

Kathryn D. MacKinnon, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant and his family came to the U.S. as refugees from FC A, in 1990. His ethnic homeland, within FC A, became an independent country, FC B, in 1993. Applicant believes he renounced his FC B citizenship in 2000, when he took the oath to become a U.S. citizen. He now believes he may still be a dual citizen with FC B, under FC B law, and is willing to again renounce his FC B citizenship if a conflict arises between the U.S. and FC B, a country to which he has minimal ties. His father and brother are also U.S. citizens and his mother is a legal resident. All three reside in the U.S. Mitigation has been established. Clearance is granted.

STATEMENT OF THE CASE

On February 19, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended, issued a Statement of Reasons (SOR) to the Applicant. The SOR detailed reasons why DOHA could not make the preliminary affirmative finding required under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. The SOR recommended referral to an Administrative Judge to conduct proceedings and determine whether a clearance should be granted, denied or revoked.

On February 22, 2002, Applicant responded to the allegations set forth in the SOR, and elected to have a decision made by a DOHA Administrative Judge based on the written record; i.e., without a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to Applicant on arch 13, 2002. The FORM includes five exhibits, which have been marked and admitted as Government Exhibits (GX) 1 - 5. The Applicant was instructed to submit information in response to the FORM within 30 days of receipt of the FORM. Applicant submitted a response to the FORM on April 23, 2002, to which Department Counsel did not object. The response is designated Applicant's Exhibit (AX) A and the four attachments thereto are designated AX B - E. The matter was assigned to me for resolution on May 31, 2002.

FINDINGS OF FACT

Applicant is a 24-year-old employee of a defense contractor that is seeking a security clearance for him (level not specified in the FORM). After considering the totality of the evidence in the case file, including Applicant's responses to the SOR and the FORM, I make the following FINDINGS OF FACT:

Applicant was born in 1978 in Eritrea, when it was a province of Ethiopia. In 1990, the family came to the United States, to escape the fighting and turmoil in Ethiopia, where they had been residing in that country's capital. When Eritrea gained its independence in 1993, Applicant's family returned to Eritrea and Applicant attended primary school in Eritrea's capital city. In 1995, the family returned to the United States, and have resided here ever since. Applicant was then about 17 years old. During the first part of this period, Applicant traveled on a United States issued Refugee Travel Document/Passport. In June 1997, three years before becoming a United States citizen, Applicant obtained a "Laisser Passer" (Travel document) in June 1997, from the Embassy of Eritrea in Washington, D.C., to allow him to travel to Eritrea (Response to FORM, attachments 1 and 3). He visited Eritrea during the Summer of 1997 (GX 4).

Applicant registered for the draft and obtained a selective service number on August 12, 1996 (Response to FORM, attachment 2). He attended university in the U.S. from 1996 to 2000, when he graduated. On March 23, 2000, Applicant became a naturalized United States citizen (GX 4). Since becoming a citizen, the only valid travel document he has possessed is his United States passport (Response to FORM at page 4).

Under Eritrean law, ⁽¹⁾ dual citizenship is not recognized, the sole exception being "special arrangements may be made for Eritrean citizens by birth who wish to retain any foreign citizenship they have since acquired." There is nothing in the record indicating this occurred in the present case.

Moreover, Eritrean law states that "grounds for involuntary loss of Eritrean citizenship" exist when the "person voluntarily acquires another citizenship," as was the case with Applicant in 2000. I note his statement (Response to FORM) that he answered "no" on his security clearance application of June 28, 2000 (GX 4) because he believed he had renounced his Eritrean citizenship when he took the oath of allegiance to the United States in March 2000.

Applicant's discussion of the issue of dual citizenship in the Response to the FORM reflects some confusion as to whether or not he remains (or believes he remains) a citizen of Eritrea since his United States naturalization and oath taking in March 2000. While he now believes he may be a dual citizen of the two countries, based on what he has read, it has not been established that he actually is. To the degree that he believes he may be a citizen of Eritrea, he is willing to again renounce that citizenship if there is a conflict of interest between Eritrea and the United States.

I conclude that since Applicant took no action to ascertain or establish Eritrean citizenship, or to use it in any way since becoming an American citizen, the record does not establish any conduct or statements by Applicant indicating a preference for Eritrea over the United States.

GUIDELINE C - FOREIGN PREFERENCE

SOR 1.a. As of February 19, 2002, Appellant expressed an unwillingness to renounce the Eritrean citizenship ⁽²⁾

he thought he has based on his understanding of what he had read. However, in his subsequent response to the FORM (AX A), Appellant explained his current state of mind in the following terms:

The sole reason for my desire to keep my [Eritrean] citizenship is to keep my heritage [e.g., to keep the origins and culture of my parents] and not to gain any benefits, such as the use of that country's passport, voting, and other rights. My desire to remain a dual citizen does not mean that I prefer the Eritrean citizenship over my American citizenship. I have not exercised any rights under the Eritrean citizenship after becoming a U.S. citizen. I have repeatedly stated my allegiance to the United States over any other nation. If my Eritrean citizenship requires me to act in ways that threaten the integrity and safety of the United States, I would unequivocally renounce my Eritrean citizenship . . . It would not be honest of me to say that I am willing to renounce my Eritrean citizenship just for acquiring security clearance. However, only if this conflict of interest regarding U.S. national security arises due to my dual citizenship would I renounce my Eritrean citizenship (sic).

Although Applicant has explained his reasons for not wanting to renounce whatever Eritrean citizenship he might have at present, the risk we are seeking to avoid is precisely where Applicant promises he would act in the interests of the United States. I consider his statement to be one of unequivocal support for the United States and not to indicate any kind of preference for Eritrea.

SOR 1.b. - As of the date of issuance of the SOR, February 19, 2002 (GX 1), Applicant stated his intent to vote in the next Eritrean election (GX 1 and 5). However, in his response to the SOR, dated February 22, 2002 (GX 3), Applicant "reverse[d] his previously stated intention to vote in the next Eritrean election." The reason given was that he "now realize[s] this could be construed as being inconsistent with the national interest of [his] country, the United States" (Id.), something he does not want to do. Finally, in his response to the FORM, Applicant further explains that:

My initial intention was to participate and be a part of this new nation's transition to democratic values consistent with the values of the United States. I still hope that democracy befalls on Eritrea and the people's voices are heard and counted freely, but I would not be a participant in the process.

Overall, I find Applicant's first statement on this issue to have come from the heart, while the last two statements reflect more considered judgment. The impact of his first statement about intending to vote in the next Eritrean election, like all his statements, must be considered in the context of all the evidence of record and, on this basis, was not compelling or persuasive, either by itself or in context. Based on the current record, I find Applicant does not intend to vote in any future Eritrean elections.

GUIDELINE B - FOREIGN INFLUENCE

Applicant and his family (apparently ethnic Eritreans) left Ethiopia in 1990 because of the turmoil and fighting in that country, which lead to the independence of Eritrea in 1993.

SOR 2.a. - Applicant's father and brother are citizens of the United States and may also be citizens of Eritrea, although that status is by no means certain, for the same reasons that apply to Applicant, as discussed above. Both and reside in the United States (GX 3).

SOR 2.b. - Applicant's mother is a legal U.S. resident, but not yet a citizen, so she apparently still is a citizen of Eritrea. She is employed by an international agency, primarily funded by the United States, and lives part of the year in each country (GX 3). In his security clearance application (GX 4), Applicant gives her address as being in the United States.

SOR 2.c. - Applicant's parents own a home in Ethiopia, but they reside primarily in the United States. Applicant has not seen the home for more than 10 years, which is around the time the family fled that now foreign country. Applicant has no personal interest in that home and no plans to return or reside in Ethiopia.

POLICIES

Each adjudicative decision must also include an assessment of nine generic factors relevant in all cases: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowing participation; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood or continuation or recurrence (Directive, E.2.2. 1., on page 16 of Enclosure 2). I have considered all nine factors, individually and collectively, in reaching my overall conclusion.

Because each security case presents its own facts and circumstances, it should not be assumed that the factors cited above exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable financial judgment and conduct.

Considering the evidence as a whole, I find the following specific adjudicative guidelines to be most pertinent to this case:

GUIDELINE C (Foreign Preference)

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.

Condition that could raise a security concern and may be disqualifying:

1. The exercise of dual citizenship.

Condition that could mitigate security concerns:

1. Dual citizenship is based solely on parents' citizenship or birth in a foreign country.

GUIDELINE B (Foreign Influence)

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 obligation are not citizens of the United States or may be subject to duress.

Conditions that could raise a security concern and maybe disqualifying includes:

1. An immediate family member who is a citizen of, or resident or present in, a foreign country;

8. A substantial financial interest in a foreign country that could make the individual vulnerable to foreign influence.

Conditions that could mitigate security concerns include:

1. Based on the totality of the record, I make a determination that Applicant's family members are not agents of a foreign power and are not 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;

5. Financial interests are minimal and not sufficient to affect the individual's security responsibilities.

The eligibility criteria established by Executive Order 10865 and DoD Directive 5220.6 identify personal characteristics and conduct that are reasonably related to the ultimate question of

whether it is "clearly consistent with the national interest" for an individual to hold a security clearance. In reaching the fair and impartial overall common sense determination based on the "whole person" concept required by the Directive, the Administrative Judge is not permitted to speculate, but can only draw those inferences and conclusions that have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make

critical judgments as to the credibility of witnesses.

In the defense industry, the security of classified information is entrusted to civilian workers

who must be counted on to safeguard classified information and material twenty-four hours a day.

The Government is therefore appropriately concerned where available information indicates that an applicant for a security clearance, in his or her private life or connected to work, may be involved

in conduct that demonstrates poor judgment, untrustworthiness, or unreliability. These concerns include consideration of the potential, as well as the actual, risk that an applicant may deliberately

or inadvertently fail to properly safeguard classified information.

An applicant's admission of the information in specific allegations relieves the Government

of having to prove those allegations. If specific allegations and/or information are denied or otherwise controverted by the applicant, the Government has the initial burden of proving those controverted facts alleged in the Statement of Reasons. If the Government meets its burden (either

by the Applicant's admissions or by other evidence) and establishes conduct that creates security concerns under the Directive, the burden of persuasion then shifts to the Applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence

of conduct that falls within specific criteria in the Directive, it is nevertheless consistent with the interests of national security to grant or continue a security clearance for the Applicant.

A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence. As required by DoD Directive 5220.6, as amended, at E2.2.2., "any doubt as to whether access to classified information is clearly consistent with the interests of national security will be resolved in favor of the nation's security."

CONCLUSIONS

This case is based primarily on information provided by Applicant during the investigation process, in his response to the SOR and in his response to the FORM. The SOR contains only two allegations under Guideline C: one relating to his "unwillingness to renounce [his] Eritrean citizenship," and the second relating to his expressed intent to vote in the next Eritrean election.

Applicant was clearly candid in his first statement on this point, his March 20, 2001 sworn statement to the Defense Security Service (DSS) (GX 5)and has been just as candid in his responses to the SOR (GX 3) and to the FORM. I conclude that his first statement was made when he was unaware of how the Government was likely to view the dual citizenship factor, and the latter two statements were made when Applicant better understood the Government's concerns. I find his final statements to be credible.

There is no question that while dual citizenship is recognized by the U.S. as a fact of life in today's world, because of the laws of various countries, it may nonetheless be a negative fact in determining security clearance eligibility. The Directive at Guideline C, Section E2.A3.1.1., makes the "exercise of dual citizenship" a Disqualifying Condition. "Exercise" is not defined, but it presumably starts with simply "possessing" such citizenship at the lower end of the spectrum of relevance and materiality, and becomes more serious as evidence coming within Disqualifying Conditions 3- 9 is shown to exist. The record in the present case does not contain any such evidence, nor are any allegations of conduct within any of the seven Disqualifying Conditions from 3 to 9 stated found in the SOR.

Although "possession and/or use of a foreign passport" is not separately alleged in the SOR,

it is discussed by Department Counsel in the FORM, and responded to by Applicant. The temporary Eritrean passport he obtained in the late 1990s, before he became an American citizen is, by definition, not a dual citizenship issue. It was never used after Applicant became a citizen, expired in 2000, and has not been renewed, so these is no issue alleged in the SOR about possession of a foreign passport.

A willingness to renounce a foreign citizenship is a Mitigating Condition under Guideline C, at E2.A3.1.3.4. Applicant has stated a willingness and intention to do if the U.S. ever enters an adversarial relationship with the Eritrea government, which is an event unlikely to occur. It would make a stronger case for Applicant if he had agreed to immediately renounce whatever Eritrean citizenship he might have. But, as Applicant points out (Response to FORM at p. 6), "the Directive does not require that one renounce foreign citizenship to gain access." Based on the totality of the evidence, I find no reason to doubt Applicant's pledge of undivided allegiance to the United States.

SOR 1.b. - While E2.A3.1.2.8. makes it a Disqualifying Condition if an applicant admits "voting in foreign elections," the evidence supporting allegation SOR 1.a. establishes that he had not done so in the past, but was intending to do so in the next Eritrean election. To the extent his first statement establishes his original intent, he had, upon reflection, decided he will not vote in any future Eritrean elections. I find no evidence in the record to reject or doubt his promise. Based on the totality of the evidence, particularly the lack of any evidence that might bring him within one or more of Disqualifying Conditions E2.A3.1.2.2. - E2.A3.1.2.8, Applicant, since becoming an American citizen, has done nothing to suggest a preference for Eritrea over the United States. In fact, the evidence of Applicant's life and accomplishments in this country support his position of a strong preference and unequivocal support for the United States and its interests.

Guideline B (Foreign Influence)

There is always a possibility that relatives and/or friends in a foreign country might attempt to influence an applicant to act on behalf of that country against U.S. interests. However, there is nothing in the Directive or DOHA precedent to require that such ties an automatic basis for disqualification, as is the possession of a valid foreign passport. Rather, such ties must be considered in the context of the entire record, under the Directive's whole person concept.

In this regard, I conclude that his father and his brother are both citizens of the United States, and may or may not be dual citizens of Eritrea, and that his mother is a legal resident of the United States, and may still be a citizen of Eritrea. They have all made their homes in and tied their futures to the United Sates. The record shows that Applicant and his family are all highly educated and responsible individuals. Both parents are employed by an international agency that is primarily funded by the United States (GX 3 at page 2). Based on the evidence as to his parents and his own character, I conclude there is little or no risk that his parents (or brother) would ask him to violate his oath of allegiance to the United States and even less that he comply with such a request. DOHA precedent places the burden of proof on this issue on the Applicant, in essence to establish a negative, that something will not happen. Proving a negative is always a difficult proposition, but I find that the evidence in this case, taken as whole, supports Applicant's position.

DOHA decisions are not an evaluation of a person's loyalty to the United States but of the risks that result from a person's conduct, if that conduct violates one or more of the Guidelines in the Directive. In the present case, the two cited Guideline deal with foreign preference and foreign influence, which are interrelated concepts. The underlying concern of both Guidelines is that the Applicant's conduct and/or relationships may show questionable judgment, unreliability, and/or untrustworthiness.

I have considered the evidence in light of the appropriate legal standards and factors, and have assessed Applicant's credibility, based on the written record. Overall, I conclude that the evidence does not support the present accuracy of SOR 1.a and 1.b. In fact, the Government has not clearly established that Applicant actually is a citizen of Eritrea. While Applicant, like many Americans, clearly wishes to maintain ties to his ethnic homeland, the record does not contain any indication that he has said or done anything to suggest he "prefers" Eritrea over the United States or that he would do, anything contrary to U.S. interests, including, but not limited to, voting in future Eritrean election

Likewise, as to SOR 2.a and 2.b., the status of Applicant's family members is that all have resided in the U.S. for over 10 years, and are all either U.S. citizens or a legal resident of the U.S. In context, I conclude the evidence establishes his family's ties and commitment to the U.S. and their minimal ties to and interests in Eritrea, beyond maintaining their cultural heritage. As to SOR 2.c., the value of the family home in Ethiopia (which they left more than 10 years ago) is not established but, in context, is found to be insufficient to affect the Applicant's compliance with security responsibilities (DC E2,A2.1.3.5.).

FORMAL FINDINGS

Formal Findings as required by Section 3, Paragraph 7 of Enclosure 1 of the Directive are hereby rendered as follows:

Guideline C (Foreign Preference) For the Applicant

Subparagraph l.a. For the Applicant

Subparagraph 1.b. For the Applicant

Guideline B (Foreign Influence)

Subparagraph 2.a.. For the Applicant

Subparagraph 2.b. For the Applicant

Subparagraph .c. For the Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent

with the national interest to grant or continue a security clearance for Applicant.

BARRY M. SAX

ADMINISTRATIVE JUDGE

1. Found in a DoD publication, Administrative Desk Reference (ADR), listing the foreign citizenship laws for 206 countries; on internet at<www.dss.mil/training/adr/forpre/country3.htm>

2. At the time he was born in June 1978, the international community recognized Eritrea as a province of Ethiopia. Per a U.S. State Department publication, cited in Appellant's response to the FORM at p. 3, Eritrea became independent in May 1993, after a 30-year armed struggle. At that time, Appellant (then about 14) became a citizen of Eritrea by reason of his parents' status as citizens of that country.