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ISCR Case 17-03560 — CASE

ISCR Case 17-03560granted

Case Headnote

ISCR Case No. 17-03560

grantedJan 17, 2019· Hon. Richard A. Cefola· hearing

Summary

A 66-year-old defense contractor, holding a security clearance since 2010, had his clearance reviewed under Guideline B (Foreign Influence). The primary concern stemmed from the fact that five of his close relatives are citizens and residents of Afghanistan. This raised disqualifying conditions under Adjudicative Guidelines Paragraphs 7(a) and 7(b).

However, the applicant successfully demonstrated mitigating conditions, specifically Adjudicative Guidelines Paragraphs 8(a), 8(b), and 8(c). He showed strong ties to the United States through both family and professional relationships. Furthermore, U.S. military officials provided positive support, attesting to his reliability and commitment.

Ultimately, the adjudicator concluded that the applicant's foreign contacts were unlikely to create a conflict of interest. Based on the demonstrated strong U.S. ties and positive endorsements, the security concerns were mitigated, and the applicant's security clearance was GRANTED.

Why the Applicant Prevailed

The applicant demonstrated strong ties to the U.S. through family and professional relationships.
Positive support from U.S. military officials indicated the applicant's reliability and commitment.
The applicant's foreign contacts were deemed unlikely to create a conflict of interest.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties
AG ¶ 8(c)appliedCasual and Infrequent Contact with Foreign Relatives

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 31, 2017
Answer filedDec 7, 2017
Hearing heldMay 22, 2018
Decision dateJan 17, 2019

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Strong U.S. Ties in Security Clearance Decisions
Weight of Military Endorsements in Clearance Evaluations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found that the applicant has five close relatives who are citizens and residents of Afghanistan. Despite this foreign influence, the applicant's strong ties to the United States, including his marriage to a naturalized U.S. citizen and his employment with a defense contractor, were deemed sufficient to mitigate the concerns. The application for security clearance was granted.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: U.S. Spouse or Partner · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant has five close relatives who are citizens and residents of Afghanistan.	For Applicant	Extended Family in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: )

)

ISCR Case No. 17-03560

)

) Applicant for Security Clearance )

For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Heela Rasool, Esq. Applicant’s Counsel

January 17, 2019 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On October 31, 2017, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline B. The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

Applicant answered the SOR on December 7, 2017, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on February 12, 2018. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 15, 2018, scheduling the hearing for May 22, 2018. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 4, which were admitted without objection. GX 4 asked for Administrative Notice. Applicant testified on his own behalf and called one witness. Applicant presented a set of

documents, which I marked Applicant’s Exhibits (AppX) A. DOHA received the transcript of the hearing (TR) on June 7, 2018.

PROCEDURAL RULINGS

At the hearing, the Government requested I take administrative notice of certain facts relating to Afghanistan. Department Counsel provided an seven-page summary of the facts, supported by six Government documents pertaining to Afghanistan, identified as GX 4. The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact.

FINDINGS OF FACT

Applicant admitted to the allegation in SOR ¶ 1.a., with explanation. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 66-year-old employee of a defense contractor. (GX 1 at pages 5 and 11.) He has been employed with the defense contractor since June of 2009, and has held a security clearance since September of 2010. (GX 1 at pages 11 and 56.) He is married to a naturalized U.S. citizen, and has four children, three of whom are native born Americans. (GX 1 at pages 18–19, and 23–25.)

Guideline B - Foreign Influence

1.a. Applicant has five close relatives who are citizens and residents of Afghanistan. His three sisters are housewives. (TR at page 14 line 2 to page 17 line 17, at page 23 line 6 to page 26 line 17, and at page 27 line 5 to page 28 line 8.) His brother is a retired school principal, and his brother-in-law is “a low clerk,” working for the Afghan Government. (Id.) Applicant has monthly contact with his Afghan relatives, who have no idea of what Applicant does as a contractor. (TR at page 14 line 2 to page 17 line 17, at page 23 line 6 to page 26 line 17, and at page 27 line 5 to page 28 line 8.) Applicant’s mother and other brother-in-law have passed away.

Applicant has submitted two letters of support from two U.S. Army Colonels. (AppX A at pages 1 and 2.) These letters attest to his excellent work history, and dedication and commitment to our forces.

Notice

I take administrative notice of the following facts: A U.S. State Department Travel Warning remains in effect for Afghanistan. Extremists are active throughout the country. However, Afghanistan remains an important partner in of the fight against terrorism.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who applies for access to classified information seeks to enter into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order (EO) 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B - Foreign Influence

The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6:

Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. Two are potentially applicable in this case:

(a) contact, regardless of method, 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 heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology

Applicant has five close relatives who are citizens and residents of Afghanistan. The evidence is sufficient to raise these disqualifying conditions.

AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including:

(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those 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 individual, group, organization, or government and the interests of the United States;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation

Applicant’s connections with his foreign relatives is far outweighed by his connections with his adopted country, and his immediate family connections in the United States. Foreign Influence is found for Applicant.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant has a distinguished history of working with our forces in Afghanistan, as evidenced by two letters of support from U.S. Army Colonels. He performs well at his job. He can be expected to resolve any conflict of interest in favor of the United States due to his longstanding ties here.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Foreign Influence security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are:

Paragraph 1, Guideline B:

FOR APPLICANT

Subparagraph 1.a:

For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant national security eligibility and a security clearance. Eligibility for access to classified information is granted.

________________________ Richard A. Cefola Administrative Judge