DATE: December 30, 2002

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

KATHRYN MOEN BRAEMAN

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esquire, Department Counsel

FOR APPLICANT

Pro Se

OVERVIEW

Security concerns remain over Applicant's foreign preference activated by his dual citizenship and his possession and use of his foreign passport to travel to Lebanon and to protect his financial property interests there. His mere assertion of an exclusive preference for the US is insufficient as he stated that he would not relinquish the passport or his citizenship in Syria. On the other hand, he has mitigated some of the allegations of foreign influence. Although his relatives are citizens of a foreign country, there is no evidence that they have ties to the government, are agents of a foreign power, or could be exploited by a foreign power in a way that would force him to choose between his ties to them and to the US. However, he is clearly influenced by his partial interest in property he owns in Lebanon. Clearance is denied.

The Government could not reach the preliminary positive finding that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, ⁽¹⁾ so the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant on May 20, 2002. The SOR detailed security concerns in paragraph 1 over foreign influence (Guideline B) and in paragraph 2 over foreign preference (Guideline C). Applicant received the SOR and replied to these SOR allegations in an Answer of August 10, 2002, and admitted allegations 1.d., 2.a., 2.b., and 2.c. He requested a decision without a hearing, and the case was assigned to Department Counsel.

On September 10, 2002 she prepared a File of Relevant Material (FORM) and advised Applicant that he had 30 days to submit objections and/or information before the FORM was submitted to an administrative judge and that he had the right to be represented by counsel. A Personnel Security Specialist (PSS) sent the FORM to Applicant on September 10, 2002, and again notified the Applicant that he had 30 days from receipt of the letter to submit objections and/or information before the FORM was submitted to an administrative judge. Applicant received the FORM on October 9, 2002, with a response due on November 9, 2002. Applicant submitted his response on October 25, 2002 (Exhibit A); Department Counsel indicated on November 7, 2002 that she had no objection, so Exhibit A was admitted into evidence.

On November 8, 2002, the case was assigned to me.

The Department of Defense issued a policy memorandum on August 16, 2000. It clarified the policy on Foreign Preference, Guideline C and stated, in part:

The purpose of this memorandum is to clarify the application of Guideline C to cases involving an applicant's possession or use of a foreign passport. The Guideline specifically provides that "possession and/or use of a foreign passport" may be a disqualifying condition. It contains no mitigating factor related to the applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country. The only applicable mitigation factor addresses the official approval of the United States Government for the possession or use. The security concerns underlying this guideline are that possession and use of a foreign passport in preference to a U.S. passport raises doubt as to whether the person's allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States. Therefore, consistent application of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United State Government. Modification of the Guideline is not required.

This ASD(C3I) Memorandum issuing this policy was sent to Applicant as an attachment to his SOR on May 20, 2002. (Item 2)

After a complete and thorough review of the evidence in the record, and upon due consideration of that evidence, I make the following Findings of Fact:

Applicant, 63 years old, is the security officer of a United States (US) company (Company #1) where he has worked from 1999 to present. Previously he had this position for short periods with a number of other companies. In November 1999 he completed an Office of Personnel Management (OPM) Security Clearance Application (Standard Form 86) (SF 86) to seek a security clearance. (Item 5) He has a spouse-like relationship with a person who became a naturalized US citizen in December 1982. (Items 5, 6)

Applicant was born in Nigeria and lived there from 1939 to 1960 when he moved to Lebanon. He lived there from 1960 to 1987 when he and his mother immigrated to the US. In 1990 and 1992 he returned to Lebanon to visit his aunt ⁽²⁾ who lived there and to visit his uncle ⁽³⁾ in Syria. Since June 1980 Applicant has been a part-owner of a 31-unit residential property in Lebanon. When his mother died, he became custodian of the building and receives $500 per month from the rental of the apartment units. He shares this income with his brother who is a resident and citizen of Nigeria. He is close to his brother but only contacts him by letters. While he has provided his brother some monies from the apartment building he owns in Lebanon, he does not "support" his brother. (Items 5, 6, Answer)

Applicant is a citizen of Syria based on his parents being from Syria. He obtained a passport from Syria that was issued in July 1997 and expires in July 2003 which he used to come to the US and two other times when he returned to Lebanon in 1990 and 1992. Without this passport he would lose his property in Lebanon, so he believes he "must" maintain his dual citizenship and is unwilling ⁽⁴⁾ to relinquish his foreign passport. He has not used the Syrian passport since becoming a US citizen. (Items 5, 6)

Applicant claims he cannot sell the foreign apartment building as he cannot get a fair price. (Answer) Applicant's response to the FORM states that he offered to have the Defense Security Service Special Agent "hold" his Syrian passport for safekeeping but the agent refused. (Exhibit A) Applicant offers no additional reason for his refusal to abide by the DoD policy requirements.

Applicant became a naturalized US citizen in August 1996 and expects to live out his life in the US. He has never served in any foreign military service and has not voted in any foreign election. (Items 5, 6) He considers the US his "true home." (Answer) He is a law abiding citizen. (Exhibit A)

Enclosure 2 of the Directive sets forth adjudicative guidelines to consider in evaluating an individual's security eligibility divided into conditions that could raise a security concern and may be disqualifying and conditions that could mitigate security concerns in deciding whether to grant or continue an individual's access to classified information. The mere presence or absence of any given adjudication policy condition is not decisive. Based on a consideration of the evidence as a whole in evaluating this case, I weighed the following relevant Adjudication Guidelines:

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: (1) not citizens of the United States or (2) 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

(8) a substantial financial interest in a country, or in any foreign-owned or operated business that could make the individual vulnerable to foreign influence.

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;

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;

(2) possession and/or use of a foreign passport ⁽⁶⁾;

(6) using foreign citizenship to protect financial or business interests in another country;

Conditions that could mitigate security concerns include:

(2) indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;

The responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue access to classified information. Then the Applicant presents evidence to refute, explain, extenuate, or mitigate in order

to overcome the doubts raised by the Government, and to demonstrate persuasively that it is clearly consistent with the national interest to grant or continue the clearance. Under the provisions of Executive Order 10865, as amended, and the Directive, a decision to grant or continue an applicant's security clearance may be made only after an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination, the Administrative Judge may only draw those inferences and conclusions that have a reasonable and logical basis in the evidence of record.

The Government expressed security concerns over Applicant's possible foreign influence raised by his close ties of affection to citizens of a foreign country (his brother is a citizen of Nigeria and his aunt is a citizen of Lebanon) and by his owning a half-interest in a 31-unit apartment building in Lebanon. The security concern under Guideline B, Foreign Influence, is that a security risk may exist when an individual's immediate family. . . and other persons to whom he or she may be bound by affection, influence, or obligation are: (1) not citizens of the United States. 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 and (8) a substantial financial interest in a country, or in any foreign-owned or operated business that could make the individual vulnerable to foreign influence. Clearly, because of his property interests in Lebanon Applicant is influenced to continue his citizenship ties to Syria as he has used that economic interest as his reason not to surrender his Syrian passport or renounce his Syrian citizenship (discussed below).

On the other hand Applicant has relatively infrequent contacts with his aunt in Lebanon and his brother Nigeria. (His uncle in Syria is deceased.) Thus, these security concerns are mitigated by the fact that Applicant's relatives have no ties to their foreign government; nor is there any substantial likelihood that they would exercise foreign influence over Applicant. Merely because of these family ties Applicant is not vulnerable to duress. I think it improbable that his family would create a situation that could result in the compromise of classified information. Contacts with citizens of other countries are relevant to security determinations only if they make an individual potentially vulnerable to coercion, exploitation, or pressure through threats against those foreign relatives. Security clearance decisions are predictive judgments about an applicant's security eligibility in light of the applicant's past conduct and present circumstances. Department of Navy v. Egan, 484 U.S. 518, 528-29 (1988).

While acts indicative of foreign influence warrant careful scrutiny, after considering the Enclosure 2 Adjudicative Process factors and the Adjudicative Guidelines, I resolve SOR paragraph 1 and subparagraph 1.d. against Applicant, but subparagraphs 1.a. through 1.c. in Applicant's favor.

If an individual acts in such a way as to indicate a preference for a foreign country over the United States, this conduct raises a security concern under Guideline C, Foreign Preference, as the individual 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; (2) possession and/or use of a foreign passport; (6) using foreign citizenship to protect financial or business interests in another country. Further, DoD policy clarification of August 16, 2000 explains that "possession and/or use of a foreign passport" may be a disqualifying ⁽⁷⁾ condition and to mitigate an Applicant must surrender his foreign passport or obtain official approval for its use.

Security concerns over Applicant's possible foreign preference arise from his active exercise of dual citizenship as he has maintained his citizenship in Syria even after he became a naturalized US citizen in April 1996 and received a US passport. While dual citizenship is not prohibited per se (and in that sense is sanctioned by policies of the United States), any conduct indicating possible foreign preference does raise a security concern where such action would increase the risk of an individual being influenced by the needs, desires, or aims of a foreign nation.

Applicant possessed a foreign passport and used it at least twice on his trips to Lebanon; however, he did not use it for visits after he became a naturalized citizen of the US and after his US passport was issued to him.

The DoD policy guidance furnishes an avenue for individuals to mitigate the security concern: an applicant must either surrender the foreign passport or obtain official approval for its use from the appropriate agency of the United States Government. Because of his financial interests in Lebanon, Applicant attested both in his February 2001 Statement and again in his August 2002 Answer that he would not surrender his passport even though required to do so by DoD policy.

Finally, Applicant owns real estate in Lebanon and is unwilling to relinquish this property. Thus, he has maintained and will continue to maintain his citizenship in Syria to protect this economic interest.

Thus, Applicant failed to demonstrate he meets the mitigating conditions (MC). ⁽⁸⁾ While he maintains in his Answer that his principal preference is for the US that statement by itself does not establish the preference sufficiently under DoD security policy. Applicant's use of his foreign passport and his decision to continue his dual citizenship with Syria cast doubt as to whether he can be counted on to make decisions without regard to his personal foreign interests. Further, he took no action to indicate he would fall within MC 4 as he did not express any willingness to renounce his dual citizenship. In this case, after reviewing all of the evidence in the record and considering all of the security policies, including the August 16, 2000, policy clarification memorandum, I conclude he has not met the DoD mitigation sufficiently to indicate his clear preference for the United States. DoD policy clarification of Guideline C issued in August 2000 made clear that "any clearance [must] be denied or revoked unless the applicant surrenders the foreign passport . . . ."

Acts indicative of foreign preference warrant careful scrutiny. Hence, after considering the Enclosure 2 Adjudicative Process factors and the Adjudicative Guidelines, I decide SOR paragraph 2 and subparagraphs 2.a. through 2.c. against Applicant.

After reviewing the allegations of the SOR in the context of the Adjudicative Guidelines in Enclosure 2 and the factors set forth under the Adjudicative Process section, I make the following formal findings:

Paragraph 1.Guideline B: AGAINST APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Subparagraph 1.c.: For Applicant

Subparagraph 1.d.: Against Applicant

Paragraph 2. Guideline C: AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant

Subparagraph 2.b.: Against Applicant

Subparagraph 2.c.: Against 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. This procedure is required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated January 2, 1992 (Directive), as amended by Change 4, April 20, 1999.

2. Applicant has not communicated with his aunt in Lebanon since his mother died. (Answer)

3. Applicant stated that his uncle is now deceased. (Answer)

4. When he received the SOR in August 2002, Applicant was put on notice of the need to surrender this foreign passport as required by the August 16, 2000, Department of Defense policy on Foreign Preference detailed in the attached ASD(C3I) Memorandum.

5. See also the DoD August 16, 2000, Policy Clarification Memorandum, quoted above.

6. DoD policy clarification of Guideline C issued in August 2000 made clear that "any clearance [must] be denied or revoked unless the applicant surrenders the foreign passport . . . ."

7. The policy contains no mitigating factor related to the applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country.

8. Conditions that could mitigate security concerns include:

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

2. Indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;

3. Activity is sanctioned by the United States;

4. Individual has expressed a willingness to renounce dual citizenship.