DATE: January 23, 2003

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ELIZABETH M. MATCHINSKI

APPEARANCES

FOR GOVERNMENT

Kathryn D. MacKinnon, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant, a dual citizen of the United Kingdom (UK) and United States (US), acquired a UK passport after he had become a US naturalized citizen. The foreign preference concerns raised by his possession and use of a foreign passport are mitigated by his surrender of that passport with no intent to renew it. Applicant's parents, dual citizens of the UK and Israel, retired to Israel in 1973. They are not agents of a foreign power nor in a position to be exploited by a foreign power. Applicant has infrequent contact with his brother, a UK citizen residing in Italy, or with his sister, a resident citizen of Israel. While Applicant's spouse is a Mexican citizen, she has resided in the US since 1980 and has applied for US naturalization. The foreign citizenship and/or residency of these family members present little risk of foreign influence. Clearance is granted.

STATEMENT OF THE CASE

The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended by Executive Orders 10909, 11328 and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4), issued a Statement of Reasons (SOR), dated August 15, 2002, to the Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied or revoked. The SOR was based on foreign preference (guideline C) related to the exercise of dual citizenship since the acquisition of US naturalized citizenship in October 1982, including the acquisition and use of a UK passport, and on foreign influence (guideline B) concerns because of the foreign residency and/or citizenship of close family members (spouse, parents and siblings).

On August 16, 2002, Applicant responded to the allegations set forth in the SOR and requested a hearing before a DOHA Administrative Judge. The case was assigned to me on September 30, 2002, and pursuant to formal notice dated October 22, 2002, a hearing was scheduled for November 14, 2002. At the hearing, which was held as scheduled, the Government submitted five exhibits, which were entered into the record without objection, and called Applicant as an adverse witness. Applicant testified on his behalf and offered ten documents which were admitted into evidence. At the close of the evidence, the Government moved to amend SOR subparagraph 2.c. to reflect that Applicant's brother, a UK citizen, currently resides in Italy rather than in the UK. Applicant having no objection thereto, the motion was granted. With the receipt on November 25, 2002, of the transcript of the hearing, the case is ripe for a decision.

After a thorough review of the evidence, and on due consideration of same, I render the following findings of fact:

Applicant is a 55-year-old dual citizen of the US and UK who was employed by a US defense contractor until August 16, 2002, when he was laid off. Currently working for a commercial insurance company, he is subject to recall by the defense contractor if he obtains the secret security clearance requested by his former employer in June 2001.

Applicant was born in the Czech Republic (then Czechoslovakia) in November 1947 to parents with Jewish ethnicity (father a Czech native and mother an Israeli from birth). ⁽¹⁾ When Applicant was two months of age, the family emigrated to the UK. Applicant and his parents subsequently acquired UK citizenship, Applicant when he was still a very young child. Two other children were born into the family in the UK, a son in 1951 and a daughter in 1958.

Raised and educated in the UK, Applicant earned his bachelor of science degree from a government-subsidized university in the UK in June 1970. From September 1970 to June 1971, he pursued graduate studies in statistics at another British university. After working in the US as a camp counselor in the summer of 1971, he traveled within the US for about six months. Applicant returned to the UK in about February 1972, where he "studied a little bit more." Taunted and even physically abused by peers during his youth because of his religion, Applicant did not feel at home in the UK, so in July 1972 he went to Israel where, for the first six months, he lived in a hostel with others considering emigration. In December 1972, Applicant commenced employment as a statistician for an engineer consulting company in Israel.

In 1973, Applicant's parents retired and moved from the UK to Israel. In July 1975, Applicant came to the US to pursue additional graduate studies, ⁽²⁾ funded in part with monies from his Israeli employer with the understanding he would return to work for the company. ⁽³⁾ For about a year, Applicant worked as econometrician and programmer for a renowned private university (university X) in the United States. In 1977, he was awarded a master of science degree in applied mathematics from university X.

In December 1977, Applicant married a US citizen in the United States. In February 1979, he was granted permanent residence in the US. On earning his Ph.D. degree from university X in 1981, Applicant in February 1981 went to work for a defense contractor (defense contractor #1) as a member of the technical staff. Required to obtain a secret security clearance for his duties, Applicant in March 1981 completed a Personnel Security Questionnaire (PSQ) on which he listed his status as an immigrant alien with "British" citizenship, his past foreign employments in England and Israel, his foreign travel, and the British citizenship and Israeli residency of his parents and siblings. In early April 1981, Applicant amended his PSQ to add details of his activities during past periods of unemployment abroad.

On May 14, 1982, Applicant was interviewed by a special agent from the Defense Security Service. ⁽⁴⁾ Eligible to apply for US citizenship since that February, Applicant expressed his intent to apply for US citizenship in the near future. He indicated his allegiance was solely to the United States, his British citizenship notwithstanding, and he would be willing to bear arms in defense of the United States against any foreign country, including England and Israel. Applicant related his parents continued to reside in Israel, and should they need him, he would "go to them and stay with them as long as the situation warranted."

In October 1982, Applicant became a US naturalized citizen, taking an oath to renounce all foreign allegiances, to support and defend the United States Constitution and its laws, and to bear arms or noncombatant service or civilian service on behalf of the United States if required. In late November 1982, Applicant was granted a secret security clearance to perform statistical analyses and mathematical modeling work for the defense contractor.

In January 1984, Applicant went to work as a systems analyst for defense contractor #2. In conjunction with this employer's request that he be granted access to top secret classified information for his duties, Applicant on November 13, 1984, completed another PSQ on which he reported his US naturalized citizenship, his foreign travel to the USSR in July 1980, Canada in February 1981, Israel in April 1982, and England in November 1982, as well as the Israeli residency and British citizenship of his parents and siblings. Circa June 1987, Applicant was granted the top secret clearance for his duties as a senior engineer in the company's operations research group.

In the mid-1980s, Applicant and his spouse had two children born to them in the US, a daughter in April 1983 and a son in October 1985. Applicant has never sought to obtain any foreign citizenship for his children.

In February 1988, Applicant was issued a US passport, valid for ten years. Applicant used this passport to travel abroad, including on trips to Israel, Mexico, Jordan, and the UK.

In late April 1993, Applicant was divorced from his spouse. That November, he married his second wife, a Mexican citizen with a US "green card" since 1976. In 1994, Applicant left the defense sector. From 1994 to 1996, he worked as a senior research associate for a company engaged in risk assessment and management. Required to interview and hire staff for a new office in the UK, Applicant applied for a UK passport for convenience in traveling to the UK for business and pleasure. In December 1995, Applicant was issued a UK passport, valid to December 2005. Applicant used this passport in preference to his US passport four or five times (approximately once annually) to enter the UK. He used his US passport on all other travel, including on a pleasure trip with his spouse to the UK in December 1996.

From 1996 to 1998, Applicant was employed as a risk consultant for a provider of actuarial and management consulting services. As with his prior work in risk assessment, he did not require a security clearance for his duties. In 1998, Applicant went to work for a start-up software company developing technology for business to business electronic commerce. In March 1998, Applicant was issued a US passport on renewal, valid to mid-March 2008. Applicant traveled on this passport for pleasure to Belize in August 1998, Belize, Mexico and Guatemala in August 2000, and Mexico in December 2001. He also used his US passport, in preference to his British passport, on trips to Israel to see family members in June 2000 for a nephew's bar mitzvah, April 2001 to see his daughter, and March/April 2002 for a family gathering.

On August 16, 2000, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASDC³I) clarified the foreign preference adjudication guideline pertinent to possession/use of foreign passports, making it clear that possession/use of a foreign passport raises doubts as to whether the person's allegiance to the United States is paramount and it could facilitate foreign travel unverifiable by the United States. Possession/use of a foreign passport could not be justified on the basis of factors such as personal convenience, safety, the requirements of foreign law, or the identity of the foreign country.

Circa March 2001, Applicant went to work for defense contractor #3 as a principal systems engineer, with his continued employment contingent on him obtaining a security clearance. On June 26, 2001, Applicant executed a security clearance application (SF 86) on which he listed his dual citizenship with the US and UK, and his possession of both US and UK passports. With regard to family members, he disclosed the Mexican citizenship and US residency of his spouse, the dual citizenship (UK and Israel) and Israeli residency of his parents, the UK citizenship (address unknown) of his brother, and the Israeli citizenship and residency of his sister.

On August 30, 2001, Applicant was interviewed by a DSS special agent about his possession of a valid UK passport and his exercise, if any, of any other rights, privileges or benefits of his UK citizenship. Applicant indicated he obtained in December 1995, and continued to maintain, the UK passport solely for ease of entry into the UK on his trips to the UK. He denied using this foreign passport to enter any other foreign country, or accepting any other benefit from the UK. Applicant expressed a willingness to renounce his foreign citizenship and relinquish his foreign passport.

On August 15, 2002, DOHA issued an SOR to Applicant alleging foreign preference concerns presented by his possession and use of a valid UK passport after he had become a US naturalized citizen, and foreign influence concerns because of the foreign citizenship and/or residency of close family members (spouse, parents, siblings). On receipt of the SOR, Applicant was apprised of the ASDC³I memorandum to the effect that clearance is to be denied or revoked unless an applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government. ⁽⁵⁾ On October 15, 2002, Applicant surrendered to the British Consulate his UK passport, which was formally cancelled. The passport was free of any stamps or visas. Applicant does not intend to replace the UK passport.

Applicant is willing to relinquish his UK citizenship. Applicant has no financial assets outside of the United States. He owns two residences, is invested in a retirement plan and stocks/mutual funds, and has funds on deposit in financial institutions in the US. Applicant's current spouse, a teacher by profession, received her undergraduate and graduate education in the United States. She has resided continuously in the US since about 1980, and from 1992 to 2000 taught in a Montessori elementary school. In late 2001, she commenced application for naturalization in the United States, which was delayed because of a discrepancy in birth date. In late August 2002, the Immigration and Naturalization Service received her application for US naturalization.

Applicant's elderly parents (ages 80 and 78), dual citizens (Israel and the UK), have not worked since moving to Israel in 1973 and they are not politically active. They stay with Applicant on visits to the United States, and Applicant sees them on his trips to Israel. Applicant provides them no financial support. Applicant contacts his sister in Israel infrequently. He makes an effort to see her when he is in Israel, but he does not write her or correspond by electronic mail. Applicant's brother is a citizen of the UK residing in Italy as of November 2002. As an agricultural economist for the United Nations, Applicant's brother has lived in several foreign countries over the years. Applicant has seen his brother twice in the last seven years, in 1999 when his brother came to the United States and in April 2002 at the family gathering in Israel.

Applicant has made no effort to acquire dual nationality for his two children. Applicant's daughter is a student at a university in the United States. His son, a high school senior, resides with Applicant's ex-wife in the local area.

Applicant's in-laws from his current marriage are citizens of Mexico, who own residences in Mexico and New York. They split their time between the two countries. Prior to his retirement, Applicant's father-in-law owned a textile business in Mexico.

Applicant is involved in his local community in the US, having served on the board of at least one communal organization. Applicant is considered by his friends, one of whom has known him since 1984, to be of good character and committed to the United States.

POLICIES

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, favorable and unfavorable, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the nature, extent, and seriousness of the conduct and surrounding circumstances; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the motivation of the individual applicant and extent to which the conduct was negligent, willful, voluntary or undertaken with knowledge of the consequences involved; the absence or presence of rehabilitation and other pertinent behavioral changes; the potential for coercion, exploitation and duress; and the probability that the circumstances or conduct will continue or recur in the future. See Directive 5220.6, Section 6.3 and Enclosure 2, Section E2.2. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors 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 judgment, irresponsibility or emotionally unstable behavior. See Directive 5220.6, Enclosure 2, Section E2.2.4.

Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:

Foreign Preference

E2.A3.1.1. 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.

E2.A3.1.2. Conditions that could raise a security concern and may be disqualifying also include:

E2.A3.1.2.1. The exercise of dual citizenship

E2.A3.1.2.2. Possession and/or use of a foreign passport

E2.A3.1.3. Conditions that could mitigate security concerns include:

E2.A3.1.3.1. Dual citizenship is based solely on parents' citizenship or birth in a foreign country

E2.A3.1.3.4. Individual has expressed a willingness to renounce dual citizenship.

Foreign Influence

E2.A2.1.1. 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.

E2.A2.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A2.1.2.1. 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.A2.1.3. Conditions that could mitigate security concerns include:

E2.A2.1.3.1. 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.A2.1.3.3. Contact and correspondence with foreign citizens are casual and infrequent

* * *

Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which 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. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which 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. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets its burden and establishes conduct cognizable as a security concern 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 criterion 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." Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security. See Enclosure 2 to the Directive, Section E2.2.2.

Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of the Applicant, I conclude the following with respect to guidelines C and B:

Guideline C is based on actions taken by an individual which indicate a preference for a foreign country over the United States. ⁽⁶⁾ A citizen of the UK since he was a young child, Applicant resided and worked in Israel for about three years from 1972 to 1975. He made no effort to acquire Israeli citizenship, and came to the United States to pursue graduate studies at age 27 in 1975. Applicant elected to make his home in the US. He paid back the Israeli employer, who had provided funding for his graduate education in the United States, married a US citizen in December 1977, and acquired US naturalized citizenship in October 1982. From 1981 to 1994, Applicant worked for defense firms where he held secret and top secret security clearances. In 1988, he was granted a US passport, which he used exclusively for travel abroad, including to Israel and the UK. These actions in preference to his United States citizenship notwithstanding, Applicant in 1995 exercised a benefit/privilege of his UK citizenship in 1995, acquiring a UK passport which he used on four or five subsequent trips to the UK to ease entry into the UK.

Dual citizenship is recognized by the United States, and a decision to deny or revoke a security clearance based solely on one's status as a dual citizen would raise constitutional issues. However, affirmative acts in exercise of foreign citizenship are potentially security disqualifying, as they may indicate a preference for the foreign country over the United States. (See E2.A3.1.2.1.). The Directive cites specific affirmative behaviors which raise security significant guideline C concerns, including possession and/or use of a foreign passport. (See E2.A3.1.2.2.). As set forth by the Assistant Secretary of Defense for Command, Control, Communications and Intelligence (ASD³I) in an August 16, 2000 policy clarifying guideline C as it applies to foreign passports, possession and/or use of a foreign passport raises doubt as whether the person's allegiance to the United States is paramount, and it could also facilitate travel not verifiable by the United States. ⁽⁷⁾ Applicant surrendered his foreign passport to the British Consulate on October 15, 2002. Since Applicant no longer has the foreign passport and does not intend to acquire one in the future, the risk of unverifiable travel no longer exists.

While questions of allegiance are not necessarily answered by the surrender of a foreign passport, Applicant did not view the acquisition of the UK passport as an act of foreign preference. As confirmed by his exclusive use of his US passport when traveling to countries other than the UK, Applicant regarded the UK passport as a practical tool which allowed him to avoid long lines when entering the UK. His recent surrender of the foreign passport is evidence of his willingness to comply with Department of Defense requirements. Indeed, Applicant's decisions to become a US citizen and to pursue his career here are telling in their implications for his primary allegiance. Unlike his UK citizenship, which he acquired as a very young child before he could read or write, Applicant became a US naturalized citizen knowing and accepting of the obligations of his United States citizenship. Applicant has expressed without reservations a willingness to bear arms for the United States against all countries, including Israel and the UK. His continued domicile and employment in the United States for more than twenty years is consistent with his US citizenship. Applicant has repeatedly expressed, without reservation, his willingness to renounce his foreign citizenship. (See E2.A3.1.3.4.). As of November 2002, he had taken no affirmative steps to do so. While the United States Government does not encourage its citizens to remain dual nationals because of the complications that may ensue from obligations owed to the country of second nationality, the Directive does not require that one renounce foreign citizenship in order to gain access. Yet, there must be adequate assurances that a dual citizen will not actively exercise or seek rights, benefits, or privileges of that foreign citizenship. There is no evidence Applicant is using his foreign citizenship to protect financial or business interests in the UK. All of his financial assets are in the United States. His parents and siblings no longer reside in the UK, and he has taken no steps to seek dual citizenship for his two children, who are both US citizens from birth. After considering all the evidence of record, I conclude there is little risk, if any, of Applicant acting in preference to any foreign country, including the UK, over the United States. Subparagraphs 1.a., 1.b., and 1.c. are resolved in Applicant's favor.

Under guideline B, a security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he is bound by affection, influence or obligation are not citizens of the United States or may be subject to duress. Applicant's current spouse is a citizen of Mexico, although she was educated in the United States and has been a continuous resident of this country since about 1980. Applicant's parents are UK and Israel citizens who have resided in Israel since 1973. Applicant's siblings are foreign nationals as well. His sister is an Israeli resident citizen, while his brother, a UK citizen, has resided all over the world because of his position with the United Nations. ⁽⁸⁾ DC E2.A2.1.2.1., 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, applies in evaluating Applicant's security worthiness.

The security concerns engendered by the foreign citizenship and/or residency of close family members may be mitigated where it can be determined 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 (MC E2.A2.1.3.1.). While the extent to which Applicant corresponds with his elderly parents in Israel is not fully developed in the record, Applicant visits them on his trips to Israel and they stay with him when they come to the United States. Applicant does not send them financial assistance, but it is clear he feels affection for his parents as well as obligation. Applicant told the DSS agent in 1982 "if they were to expressly need [his] assistance or presence, [he] would go to them and stay with them as long as the situation warranted." He clarified at the hearing he would attend to his parents if they fell seriously ill. Applicant's parents have been retired since they moved to Israel and there is nothing about their activities to raise the attention of foreign authorities. Applicant testified credibly to them not being politically active. Applicant's contacts with his sister in Israel and his brother in Italy are infrequent. As of June 2001 when Applicant completed his SF 86, he was unaware of his brother's address. Applicant testified to making an effort to see his sister when he is in Israel, but he does not correspond with her on any regular basis. None of these relations are aware of the specifics of Applicant's work, and there is nothing unreasonable or untoward about Applicant's contacts with these family members.

The risk of foreign influence presented by the Mexican citizenship of Applicant's current spouse is greatly reduced by her continuous residency in the United States since 1980 and her clear intent to acquire US citizenship, as evidenced by her application for naturalization. Acclimated to life in the United States, Applicant's spouse was educated in the US and from 1992 to 2000 worked as an elementary school teacher in the United States. The other persons to whom Applicant has a close bond, his son and daughter, are US citizens from birth who attend schools in the United States. Individuals who have been acquainted with Applicant for some time attest to his good character and commitment to the United States. Applicant has been candid with the Government about his foreign connections, and he understands his obligations. In the unlikely event Applicant's foreign family members were to fall subject to undue influence or pressure, I am persuaded he would report to proper authorities in the United States any contacts, requests or threats by foreign authorities or individuals. Subparagraphs 2.a., 2.b., 2.c. (as amended) and 2.d. are resolved in Applicant's favor.

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

Paragraph 1. Guideline C: FOR THE APPLICANT

Subparagraph 1.a.: For the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For the Applicant

Paragraph 2. Guideline B: FOR THE APPLICANT

Subparagraph 2.a.: For the Applicant

Subparagraph 2.b.: For the Applicant

Subparagraph 2.c. (as amended): For the Applicant

Subparagraph 2.d.: 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.