1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS

DEPARTMENT OF DEFENSE

DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: )

)

) ISCR Case No. 11-02652

)

Applicant for Security Clearance )

Appearances

For Government: Braden Murphy, Esquire, Department Counsel

For Applicant: Pro se

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Decision

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WESLEY, Roger C., Administrative Judge:

Based upon a review of the pleadings, items, and legal arguments in the case

file, Applicant mitigates foreign influence security concerns but does not mitigate foreign

preference security concerns. Clearance is denied.

History of Case

On July 14, 2011, 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, issued a Statement of Reasons (SOR) to 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 Applicant, and recommended referral to an administrative judge

to determine whether his clearance should be granted, continued, denied or revoked.

Applicant responded to the SOR on August 13, 2011, and elected to have his

case decided on the basis of the written record. Applicant received the File of Relevant

Material (FORM) on October 6, 2011. Applicant did not submit any information in

response to the FORM. The case was assigned to me on December 22, 2011.

January 24, 2012

Besides its seven items, the Government requested administrative notice of one

document: Country Specific Information, Brazil, U.S. Department of State (November

10, 2010). Applicant did not ask to include any items addressing Brazil's country status.

Administrative or official notice is the appropriate type of notice used for

administrative proceedings. See ISCR Case No. 05-11292 (App. Bd. April 12, 2007);

ISCR Case No. 05-11292 (App. Bd. April 12, 2007). Administrative notice is appropriate

for noticing facts or government reports that are well known. See Stein, Administrative

Law, Sec. 25.01 (Bender & Co. 2006). For good cause shown, administrative notice

was granted with respect to the above-named background reports addressing the

geopolitical status of Brazil.

Summary of Pleadings

Under Guideline C, Applicant is alleged to have exercised dual citizenship with

Brazil after becoming a U.S. citizen in January 2007 by (i) applying for, obtaining, and

holding a Brazilian passport issued in January 2009 and not subject to expiration before

January 2014 and (b) using his Brazilian passport, instead of his U.S. passport, for

travel in at least December 2009.

Under Guideline B, Applicant is alleged (a) to have a mother, brother, and sister

who are citizens and residents of Brazil and (b) to have a daughter who is a dual

citizen of Brazil and the U.S.

In his answer to the SOR, Applicant denied each of the allegations under

Guidelines C and B. He claimed his holding a Brazilian passport was required by

Brazilian authorities to enter and depart Brazil and claims no member of his family has

any knowledge of his security clearance application, understanding of the significance

of a security clearance, or the products his company makes. And he claims to have

disclosed his daughter's dual citizenship and her use of a Brazilian passport for traveling

convenience.

Findings of Fact

Applicant is a 38-year-old supply chain manager for a defense contractor who

seeks a security clearance. The allegations covered in the SOR and admitted by

Applicant are adopted as relevant and material findings. Additional findings follow.

Applicant's background

Applicant was born and raised in Brazil to parents of Brazilian citizenship and

residency. By virtue of his birth to Brazilian parents, Applicant was awarded Brazilian

citizenship himself. He attended Brazilian primary and secondary schools. Applicant

immigrated to the U.S. from Brazil sometime in 2003 (specific date of entry not

provided). Applicant married his spouse (a U.S. citizen by birth) in May 2003 and has

one child (age three) from this marriage. (Item 4). By virtue of his dual citizenship with

Brazil, his daughter is a dual citizen of Brazil and the U.S. as well. (Items 3 and 4)

Applicant applied for U.S. citizenship and became a naturalized U.S. citizen in

January 2007. (Item 4) He obtained a U.S. passport in February 2007. (Items 4 and 6)

After becoming a naturalized U.S. citizen, he retained his Brazilian citizenship,

because Brazil requires "anyone born in Brazil to travel in and out of Brazil with a

Brazilian passport only." (Item 7) U.S. passports, in turn, are not accepted from

Brazilian natives. (Item 7) Applicant has never renounced his Brazilian citizenship and

never destroyed or turned in his Brazilian passport after becoming a U.S. citizen.

Applicant applied for an updated Brazilian passport and received a newly issued

Brazilian passport in January 2009. (Item 6) This passport will not expire until January

2014. (Item 6) Because he has family (mother, brother, and sister) still residing in

Brazil, he is reluctant to destroy or relinquish his Brazilian passport.

Because of Brazilian legal requirements, Applicant can enter and exit Brazil for

family emergencies only with his Brazilian passport. (Items 5 and 7) And in the event

his Brazilian passport was destroyed or surrendered, he would be required to obtain a

new one, a long and expensive process. So, consequently, Applicant is disinclined to

destroy or surrender his Brazilian passport, or renounce his Brazilian citizenship. (Item

Since becoming a U.S. citizen in 2007, Applicant has traveled on a couple of

occasions to destinations outside the U.S., using his Brazilian passport exclusively to

depart and re-enter the U.S. (Items 6 and 7) For instance, he used his Brazilian

passport to travel to Brazil in December 2009 to visit his family, returning in January

2010. (Item 6) He is currently unwilling to destroy or surrender his Brazilian passport to

his facility clearance officer (FSO) because of Brazilian requirements to obtain a new

Brazilian passport for any future trip to Brazil to see his family. (Item 6) For the same

reasons, Applicant is unwilling to consider renouncing his Brazilian citizenship.

Applicant remains a dual citizen of the U.S. and Brazil. (Items 4, 6, and 7)

Applicant has never voted in a Brazilian election. While eligible, he never

served in the Brazilian military, and is currently not subject to conscription. (Item 7) He

has no business, financial, or property interests in Brazil, and considers the U.S. his

principal place of residence and the country of his predominant loyalty. (Item 7) His

three-year-old daughter has both a U.S. passport and Brazilian passport, which she

uses to travel to and from Brazil. (Item 7)

Applicant's family ties in Brazil

Applicant's mother, brother, and sister are citizens and residents of Brazil. (Item

4) His mother was born in Brazil and is a retired seamstress. (Item 7) Applicant

maintains weekly telephone contact with her and sees her once a year. (Item 7) She is

not familiar with Applicant's work or aware of his application for a security clearance.

Besides his mother, Applicant has two siblings who are citizens and residents of

Brazil. Both were born and raised in Brazil. (ltem 7) Applicant communicates by

telephone with his brother once or twice a year and sees him once a year when he

visits Brazil. (Item 7) His brother is a mechanical technician for a private German steel

company operating in Brazil. His brother has no known affiliations or sympathies with

any foreign governments or interests in them. (Item 7)

Applicant also has a sister who is both a citizen and resident of Brazil. (Item7)

He maintains telephonic contact with her weekly and sees her every two years when

he visits Brazil. (Item 7) His sister is a housewife with no affiliation with any foreign

governments. The administrative record does not provide any documentation of

whether or not the parents and siblings have ever worked or associated with officials of

the Brazilian government and military.

Brazil's country status

Brazil is a federation of states with an advanced developing economy. (Item 8)

Brazil remains a non-hostile trading partner of the U.S. and is a country whose

democratic institutions are not incompatible with our own traditions and respect for

human rights and the rule of law. Brazil maintains strong bilateral trading and

commercial relations with the U.S. and is a charter member of the Organization of

American States. See Country Specific Information, Brazil, supra. (Item 8) Brazil is a

country with no known recent history of government-sponsored hostage taking or

disposition for exerting undue influence against family members to obtain either

classified information, or unclassified economic and proprietary data. (id.)

Policies

The Adjudicative Guidelines for Determining Eligibility for Access to Classified

information (effective September 2006) list Guidelines to be considered by

administrative judges in the decision-making process covering DOHA cases. These

Guidelines require the administrative judge to consider all of the "Conditions that could

raise a security concern and may be disqualifying" (Disqualifying Conditions), if any, and

all of the "Mitigating Conditions," if any, before deciding whether or not a security

clearance should be granted, continued or denied. The Guidelines do not require the

administrative judge to assess these factors exclusively in arriving at a decision. In

addition to the relevant Adjudicative Guidelines, administrative judges must take into

account the pertinent considerations for assessing extenuation and mitigation set forth

in E2 (a) of the Adjudicative Process of Enclosure 2 of the Directive, which are intended

to assist the administrative judges in reaching a fair and impartial commonsense

decision.

Viewing the issues raised and evidence as a whole, the following adjudication

policy concerns are pertinent herein:

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."

See Adjudicative Guideline (AG) C, § 9.

Foreign Influence

The Concern: "Foreign contacts and interests may be a security concern if the

individual has divided loyalties or foreign financial interests, may be manipulated or

induced to help a foreign person, group, organization, or government in a way that is not

in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest.

Adjudication under this Guideline can and should consider the identity of the foreign

country in which the foreign contact or financial interest is located, including, but not

limited to, such considerations as whether the foreign country is known to target United

States citizens to obtain protected information and/or is associated with a risk of

terrorism." See AG B, § 6.

Burden of Proof

By virtue of the precepts framed by the Directive, a decision to grant or continue

an Applicant's request for security clearance may be made only upon a threshold finding

that to do so is clearly consistent with the national interest. Because the Directive

requires administrative judges to make a commonsense appraisal of the evidence

accumulated in the record, the ultimate determination of an applicant's eligibility for a

security clearance depends, in large part, on the relevance and materiality of that

evidence. As with all adversary proceedings, the Judge may draw only those inferences

which have a reasonable and logical basis from the evidence of record. Conversely, the

Judge cannot draw factual inferences that are grounded on speculation or conjecture.

The Government's initial burden is twofold: (1) It must prove any controverted

facts alleged in the Statement of Reasons and (2) it must demonstrate that the facts

proven have a material bearing to the applicant's eligibility to obtain or maintain a

security clearance. The required showing of material bearing, however, does not require

the Government to affirmatively demonstrate that the applicant has actually mishandled

or abused classified information before it can deny or revoke a security clearance.

Rather, consideration must take account of cognizable risks that an applicant may

deliberately or inadvertently fail to safeguard classified information.

Once the Government meets its initial burden of proof of establishing admitted or

controverted facts, the burden of proof shifts to the applicant for the purpose of

establishing his or her security worthiness through evidence of refutation, extenuation or

mitigation of the Government's case.

Analysis

Applicant, who is employed by a U.S. defense contractor, was born and raised in

Brazil. He immigrated to the U.S. in 2003 and became a naturalized citizen in January

2007. Claiming the need for a Brazilian passport to enable him to legally enter and exit

Brazil, he retained and renewed his Brazilian passport after becoming a U.S. citizen and

obtaining a U.S. passport.

Dual citizenship concerns necessarily entail country allegiance assessments and

invite critical considerations over acts indicating a preference for the interests of the

foreign country over the interests of the U.S. In a different vein, the continued residence

of his immediate family members (his parents, brother, and sister) in Brazil raise

potential concerns about their being vulnerable to future pressure or duress that could

result in the compromise of classified information. To some consent, too, Applicant’s

young daughter’s dual citizenship with Brazil, and the chances of her accompanying

Applicant on his trips to Brazil, raise potential concerns. The issues, as such, raise

security concerns over Applicant's preference for a foreign country over the U.S., and

the potential for members of Applicant's immediate family being placed at risk to

pressure Applicant to divulge classified information he might be privy to.

Foreign Preference

By virtue of his birth in Brazil to parents of Brazilian descent and citizenship,

Applicant was endowed with Brazilian citizenship. This citizenship could not be lost

except by express renunciation, approved by the Brazilian government which Applicant

has never explored. He renewed his Brazilian passport in 2009 and has never

expressed any willingness to surrender it. He still retains his Brazilian passport for use

in entering and exiting Brazil to see his family and has provided no documentation of his

surrendering the passport to his FSO, or other; authorized official. Risks of his being

taken hostage behind Brazilian lines and denied the customary diplomatic intercession

made available to U.S. citizens traveling on U.S. passports remains for so long as

Applicant retains his Brazilian passport.

The Appeal Board has tended to blur convenience/force of law distinctions when

appraising claimed legal necessity reasons (concerns about dealing with Brazilian

officials in Applicant's case) for holding onto a foreign passport. See ISCR Case No. 99-

0424 (App. Bd. February 8, 2001); ISCR Case No. 99-0254 (App. Bd. February 16,

2000). To be sure, Applicant’s exercise of choice to renew and retain his Brazilian

passport for use when traveling to Brazil after becoming a U.S. citizen is itself a

voluntary election. He made his election to continue holding his Brazilian passport and

citizenship with presumptive knowledge that his traveling to Brazil on the strength of a

Brazilian passport jeopardized the ability of U.S. security personnel to monitor and track

his movements and provide diplomatic assistance should it become necessary to

protect him and secrets he might be privy to.

While Applicant‘s desire to have continued personal access to his family

members in Brazil by the only legal means currently available to him under Brazilian law

is understandable, his personal interests cannot take precedence over the

Government’s security interests. Considered in this light, Applicant’s election to retain

his Brazilian passport and citizenship in compliance with Brazilian ingress and egress

requirements may not be recognized as an exception to Guideline C’s published

preference criteria. By this line of Appeal Board reasoning, Applicant’s application for

renewal of a Brazilian passport reflected a conscious preference for Brazil, even if his

reissuance application was for perfectly logical and understandable reasons.

So, even Applicant's claimed exercise of dual citizenship under compulsion of

law is sufficient under the facts of this case to invoke one disqualifying condition of the

Guidelines covering foreign preference: DC 10(a), "exercise of any right, privilege or

obligation of foreign citizenship after becoming a U.S. citizen or through the foreign

citizenship of a family member,” which includes possession of a current foreign

passport. Concerns over Applicant's foreign preference for Brazil through his continued

possession of his Brazilian passport and dual U.S.-Brazilian citizenship remain

considerable.

Applicant, to be sure, has no assets in Brazil and assures his preference is for

the U.S. He has never voted in a Brazilian election, served in Brazil’s military, or worked

for the Brazilian government. By contrast, all of his assets and financial interests are

located in the U.S. And his dual citizenship with Brazil is based solely on his parents’

Brazilian citizenship and his birth in that country. Still, he retains his Brazilian passport

and citizenship and has expressed no willingness to abandon either one. For these

reasons, none of the available mitigating conditions covered by Guideline C apply.

Considering all of the circumstances surrounding Applicant’s exercise of dual

citizenship and lack of any documented surrender of his Brazilian passport or clear

expression of an intent to renounce his Brazilian citizenship, conclusions warrant that

foreign preference concerns are not mitigated. Unfavorable conclusions are entered

with respect to subparagraph 1.a of Guideline C of the AGs.

Foreign Influence

Principal security issues raised under Guideline B center on Applicant's mother

and siblings who are citizens and residents of Brazil and his daughter who retains dual

citizenship with Brazil and the U.S. Security concerns are raised over risks that both

Applicant's immediate family members residing in Brazil, and his daughter who has dual

citizenship with Brazil and the U.S., might be subject to undue foreign influence by

Brazilian government and military authorities to access classified information in

Applicant's possession or control.

Because Applicant's family members either are citizen/residents of Brazil, or

have dual citizenship and the potential to travel to Brazil (as is the case with Applicant’s

young daughter), they present potential heightened security risks covered by

disqualifying condition (DC) § 7(a), "contact with a foreign family member, business or

professional associate, friend, or other person who is a citizen of or resident in a foreign

country if that contact creates a the Intelligence Community Directive (ICD) 704,

Personnel Security Standards and Procedures Eligibility, dated, October 1, 2008; the

Intelligence Community Policy Guidance (ICPG) 704.2, heightened risk of foreign

exploitation, inducement, manipulation, pressure, or coercion," of Guideline B. The

citizenship/residence status of these family members in Brazil, and to some extent

Applicant’s young daughter who resides in the U.S., pose some potential concerns for

Applicant because of the risks of undue foreign influence that could compromise

sensitive or classified information under Applicant's possession and/or control.

Historically, the Appeal Board has been clear and consistent in its holdings that

the nature of the foreign government, the intelligence gathering history of that

government, and the presence of terrorist activity in the country are material to a foreign

influence case. See ISCR Case No. 07-07266 (App. Bd. Dec. June 27, 2008); ISCR

Case no. 0226130 (App. Bd. Dec. Dec. 7, 2006). So, clearly, the geopolitical aims and

policies of the particular foreign regime involved do matter. Brazil (the country under

scrutiny in this case) has both a respectable human rights record and strong bilateral

commercial relations with the U.S.

Because of Brazil's acceptable human rights record and strong bilateral relations

with the U.S., any potential heightened risk of a hostage situation or undue foreign

influence brought in the hopes of eliciting either classified information or economic or

proprietary data out of Applicant through his family members residing in Brazil or young

daughter should she travel to Brazil, is quite remote. Applicant, accordingly, may take

advantage of one important mitigating condition: MC § 8(a), "the nature of the

relationships with foreign persons, the country in which these persons are located, or

the persons or activities of these persons in that country are such that it is unlikely the

individual will be placed in a position of having to choose between the interests of a

foreign a foreign individual, group, organization, or government and the interests of the

U.S." Whatever potential conflicts he may have through his continued exercise of

Brazilian citizenship and contacts with his family members in Brazil have been more

than counterbalanced by his demonstrated U.S. citizenship responsibilities.

Due to the infrequency of the contacts Applicant has historically had with most of

his family members (his mother excepted), potential risks associated with them are

tempered. Moreover, none of Applicant's family members have any identified affiliations

or contacts with Brazilian government or military officials known to be associated with

intelligence or military organizations interested in collecting proprietary or sensitive

information in the U.S. Nor does Applicant or his young daughter have any known

contacts with Brazilian government or military officials that could be exploited or

subjected to pressure.

Further, from what is known from the presented evidence, none of Applicant's

family members in Brazil have any known (a) political affiliations with Brazil's

government, (b) history to date of being subjected to any coercion or influence, or (c)

major indications of any vulnerability to the same. His mother is a retired seamstress;

his brother is a mechanical technician; and his sister is a housewife. None appear to

have any financial or business interests that could be at risk to exploitation or pressure.

The AGs governing collateral clearances do not dictate per se results or mandate

particular outcomes for applicants with relatives who are citizens/residents of foreign

countries. What is considered to be an acceptable risk in one foreign country may not

be in another. While foreign influence cases must by practical necessity be weighed on

a case-by-case basis, guidelines are available for referencing in the supplied materials

and country information about Brazil. Unlike the old AGs, the new ones explicitly take

into account the country's demonstrated relations with the U.S. as an important

consideration in gauging whether the particular relatives with citizenship and residency

elsewhere create a heightened security risk. The geopolitical aims and policies of the

particular foreign regime involved do matter. Brazil remains a friendly country of the

U.S. with strong bilateral trade and commercial relations, an acceptable human rights

record, and historical respect for the rule of law.

MC § 11 (8(b), "there is no conflict of interest, either because the individual's

sense of loyalty or obligation to the foreign person, group, government, or country is so

minimal, or the individual has such deep and longstanding relationships and loyalties in

the U.S., that the individual can be expected to resolve any conflict of interest in favor of

the U.S. interest," has application, too, to Applicant's situation. Applicant is a naturalized

U.S. citizen with no known financial interests in Brazil that could pose potential conflicts

for him and his family members residing in Brazil. Whatever potential conflicts he may

have through his family members who reside in Brazil are more than outweighed by

Applicant's demonstrated U.S. citizenship responsibilities.

Whole-person assessment also serves to minimize Applicant's exposure to

conflict of interests with his Brazilian family members. Not only is Applicant a naturalized

U.S. citizen with demonstrated loyalty and professional commitments to the U.S., but he

has shown no inclination to expose himself to coercion or pressure. Any foreign

influence risks associated with his family members (viz., his immediate members who

reside in Brazil and his daughter who resides in the U.S.) are clearly manageable ones.

In Applicant's case, any likelihood of coercion, pressure, or influence being brought to

bear on any of his family members by Brazilian authorities is minimal.

Overall, any potential security concerns attributable to Applicant's immediate

family members residing in Brazil are sufficiently mitigated to permit safe predictive

judgments about Applicant's ability to withstand risks of undue influence attributable to

his familial relationships in Brazil. Favorable conclusions warrant with respect to the

allegations covered by sub-paragraphs 2.a and 2.b of Guideline B.

In reaching my recommended decision, I have considered the evidence as a

whole, including each of the factors and conditions enumerated in E2 (a) of the

Adjudicative Process of Enclosure 2 of the Directive.

Formal Findings

In reviewing the allegations of the SOR in the context of the findings of fact,

conclusions, and the factors and conditions listed above, I make the following separate

formal findings with respect to Applicant's eligibility for a security clearance.

GUIDELINE C (FOREIGN PREFERENCE): AGAINST APPLICANT

Subpara: 1.a AGAINST APPLICANT

GUIDELINE B: (FOREIGN INFLUENCE): FOR APPLICANT

Subparas. 2.a and 2.b: FOR APPLICANT

Conclusions

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 Applicant's security

clearance. Clearance is denied.

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Roger C. Wesley

Administrative Judge