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ISCR Case 18-00543 — CASE

ISCR Case 18-00543granted

Case Headnote

ISCR Case No. 18-00543

grantedApr 4, 2019· Hon. Mark W. Harvey· hearing

Summary

A 28-year-old linguist, sponsored by a Department of Defense contractor, was granted eligibility for a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons alleged that his spouse, parents-in-law, and brother-in-law are citizens and residents of Iraq. This raised disqualifying conditions related to foreign connections.

However, the administrative judge found that mitigating conditions applied. The applicant's spouse is a U.S. permanent resident, which significantly reduced foreign influence concerns. Furthermore, the applicant maintained limited contact with his in-laws in Iraq, thereby mitigating potential risks associated with those foreign ties.

The decision to grant the clearance was also based on the applicant's demonstrated willingness to support U.S. goals in Iraq, indicating a strong loyalty to the United States. The judge emphasized the applicant's deep ties to the U.S., ultimately concluding that the foreign influence concerns were sufficiently mitigated.

Why the Applicant Prevailed

The applicant's spouse is a U.S. permanent resident, reducing foreign influence concerns.
The applicant has limited contact with his in-laws in Iraq, mitigating potential risks.
The applicant demonstrated a willingness to support U.S. goals in Iraq, indicating loyalty to the U.S.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons Creating Potential Conflict of Interest
AG ¶ 7(e)raisedShared Living Quarters with Foreign Persons

Mitigating

AG ¶ 8(b)appliedDeep and Longstanding Relationships and Loyalties in the U.S.
AG ¶ 8(c)appliedCasual and Infrequent Contact with Foreign Citizens

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedApr 3, 2018
Answer filed—
Hearing heldMar 4, 2019Applicant waived his right to 15 days of notice.
Decision dateApr 4, 2019

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Ties in Security Clearance Decisions
Impact of Limited Foreign Contact on Security Eligibility

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's foreign connections to Iraq through his spouse, parents-in-law, and brother-in-law were mitigated by his strong ties to the United States, including his naturalization and willingness to support U.S. goals. The applicant's connections to Iraq were deemed insufficient to pose a security risk, leading to a decision in favor of the applicant.

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: Naturalized U.S. Citizen · Intent to Remain in U.S. · U.S. Spouse or Partner

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s spouse, parents-in-law, and brother-in-law are citizens and residents of Iraq.	For Applicant	Extended Family in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Credited Deep U.S. Ties Claimed Foreign Passport Surrendered

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. 18-00543 ) Applicant for Security Clearance ) Appearances For Government: Erin Thompson, Esq., Department Counsel For Applicant: Pro se __________

STATEMENT OF CASE

__________ HARVEY, Mark, Administrative Judge: After the statement of reasons (SOR) was issued, Applicant’s spouse moved from Iraq to the United States, and she is now a U.S. permanent resident. He mitigated foreign influence security concerns relating to his connections to Iraq. Eligibility for access to classified information is granted. History of the Case On September 7, 2017, Applicant completed and signed a Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 1) On April 3, 2018, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued an SOR to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), effective June 8, 2017. The SOR detailed reasons why the DOD CAF did not find 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 04/04/2019

whether a clearance should be granted, continued, denied, or revoked. Specifically, the SOR set forth security concerns arising under the foreign influence guideline.

Applicant provided an undated response to the SOR and requested a hearing. (Hearing Exhibit (HE) 3) On February 7, 2019, the case was assigned to me. On February 26, 2019, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for March 4, 2019. (HE 1) Applicant waived his right to 15 days of notice of the date, time, and location of his hearing, and his hearing was held as scheduled. (Transcript (Tr.) 13)

During the hearing, Department Counsel offered four exhibits, there were no objections; and all of Department Counsel’s proffered exhibits were admitted into evidence. (Tr. 16-18, 46-47; Government Exhibits (GE) 1-4) On March 13, 2019, I received the transcript of the hearing.

PROCEDURAL RULINGS

Department Counsel offered summaries for administrative notice concerning foreign influence security concerns raised by Applicant’s connections to Iraq. Applicant did not object to me taking administrative notice of facts concerning Iraq, and I granted Department Counsel’s motion. (Tr. 18-19) Department Counsel and Applicant indicated they had no objection to me taking administrative notice of facts from the U.S. Department of State website concerning Iraq.1 (Tr. 18-19) Administrative or official notice is the appropriate type of notice used for administrative proceedings. See ISCR Case No. 16-02522 at 2-3 (App. Bd. July 12, 2017); ISCR Case No. 05-11292 at 4 n. 1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004) and McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n. 4 (3d Cir. 1986)). Usually administrative notice at ISCR proceedings is accorded to facts that are either well known or from government reports. See Stein, ADMINISTRATIVE LAW, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice).

Portions of the Department Counsel’s requests are quoted without quotation marks and footnotes in the Iraq section of this decision, infra. The first two paragraphs and the last paragraph in the Iraq section are from the State Department website U.S. Relations with Iraq Fact Sheet, and the remainder is from Department Counsel’s administrative notice request.

1 The first two paragraphs and the last paragraph in the Iraq section of this decision are from the U.S. Department of State website, “U.S. Relations With Iraq Fact Sheet,” Bureau of Near Eastern Affairs (Apr. 28, 2017), https://www.state.gov/r/pa/ei/bgn/6804.htm. Statements about the United States’ relationship with Iraq from the Department of State are admissible. See ISCR Case No. 02-00318 at 5 (App. Bd. Feb. 25, 2004).

Findings of Fact2

The SOR alleges that Applicant’s spouse, parents-in-law, and brother-in-law are citizens and residents of Iraq. Applicant admitted all of the SOR allegations with some clarifications. (HE 3) He also provided mitigating information. (HE 3) His admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant is 28 years old, and he is sponsored by a DOD contractor to become a linguist for employment in Iraq or Kuwait. (Tr. 6, 30-32) In 2011, he graduated from high school in the United States. (Tr. 6) He has two years of college. (Tr. 6) He has not served in the military of any foreign country. (Tr. 7)

In June 2016, Applicant married, and in September 2018, his spouse immigrated to the United States. (Tr. 7, 26-27) She is a permanent resident of the United States. (Tr. 8, 47) She has a degree from a university in Iraq in civil engineering. (Tr. 28) He does not have any children. (Tr. 8) Applicant’s parents-in-law and brother-in-law are citizens and residents of Iraq. (Tr. 29-30; SOR response) Applicant rarely communicates with his in-laws in Iraq; however, his spouse communicates with them about three times a week. (Tr. 29-30)

Applicant’s father supported U.S. goals in Iraq against terrorists and insurgents. (Tr. 22-23) In 2006, Applicant’s father fled from Iraq to Syria with his spouse and children because his father was concerned about the safety of his family. (Tr. 15, 23-24) In 2008, Applicant, his father, mother, and siblings immigrated to the United States as political refugees. (Tr. 15, 24) In 2014, Applicant’s parents, three sisters, and Applicant became U.S. citizens, and they are all residents of the United States. (Tr. 25, 29) Applicant’s father’s relatives who have remained in Iraq do not work for the Iraqi Government. (Tr. 33) Applicant does not own property in Iraq. (Tr. 33-34) He plans to buy a home in the United States in 2019. (Tr. 34) One of Applicant’s spouse’s brothers lives in the United States. (Tr. 43)

In the last five years, Applicant traveled to Iraq five times. (Tr. 40) Now that his spouse is in the United States, he does not plan to travel to Iraq in the future, except possibly as a linguist. (Tr. 36) He is willing to renounce his Iraqi citizenship. (Tr. 39)3 In 2014, he took the Naturalization Oath of Allegiance to the United States of America (GE 2), which states:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or

2 The facts in this decision do not specifically describe employment, names of witnesses, names of other groups, or locations in order to protect Applicant’s and his family’s privacy. The cited sources contain more specific information.

3 The Iraqi Council of the Presidency issued Article 10(I), which states, “An Iraqi who acquires a foreign nationality shall retain his Iraqi nationality, unless he has declared in writing renunciation of his Iraqi nationality.” Iraqi Official Gazette Issue 4019 dated March 7, 2006, No. 26, https://www.refworld.org/ pdfid/4b1e364c2.pdf.

sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.4

Iraq

The U.S. Mission in Iraq remains dedicated to building a strategic partnership with Iraq and the Iraqi people. The December 2011 departure of most U.S. troops from Iraq marked a milestone in our relationship as Iraq continues to develop as a sovereign, stable, and self-reliant country. Iraq is now a key partner for the United States in the region as well as a voice of moderation and democracy in the Middle East. Iraq has functioning government institutions including an active legislature, is playing an increasingly constructive role in the region, and has a bright economic future as oil revenues surpass pre-Saddam production levels with continued growth to come. The United States maintains vigorous and broad engagement with Iraq on diplomatic, political, economic, and security issues in accordance with the U.S.-Iraq Strategic Framework Agreement (SFA).

The U.S.-Iraq SFA provides the basis for the U.S.-Iraq bilateral relationship. It covers the range of bilateral issues including political relations and diplomacy, defense and security, trade and finance, energy, judicial and law enforcement issues, services, science, culture, education, and environment. Efforts to implement the SFA are overseen by several committees, which meet periodically.

The U.S. State Department warns that U.S. citizens in Iraq are at high risk for violence and kidnapping, and advises U.S. citizens not to travel to Iraq. The current travel advisory level is Level 4: Do not travel.

The ability of the U.S. Embassy to provide consular services to U.S. citizens outside Baghdad is limited given the security environment. Anti-U.S. sectarian militias may threaten U.S. citizens and western companies throughout Iraq. Kidnappings and attacks by IEDs occur in many areas of the country, including Baghdad. Methods of attack have included explosively formed penetrators (EFPs), magnetic IEDs placed on vehicles, human and vehicle-borne IEDs, mines placed on or concealed near roads, mortars and rockets, and shootings using various direct fire weapons. Such attacks may take place in public venues such as cafes and markets.

4 The language of the current Oath of Allegiance is found in the Code of Federal Regulations Section 337.1 and is closely based upon the statutory elements in Section 337(a) of the Immigration and Nationality Act. U.S. Citizenship and Immigration Services, 8 U.S.C. § 1448, https://www.uscis.gov/us- citizenship/naturalization-test/naturalization-oath-allegiance-united-states-america.

Iraq continues to be subjected to terrorist activity. ISIL’s capacity and territorial control in Iraq has dramatically eroded in the past two years. According to estimates from the UN Assistance Mission for Iraq, acts of terrorism and violence killed more than 7,000 civilians and injured more than 12,000 in 2016. By the end of 2017, Iraqi Security Forces had liberated all territory from ISIL, drastically reducing ISIL’s ability to commit abuses and atrocities. Human rights violations continue to be a problem with allegations of unlawful killings and other abuses being made against the Iraqi Security Forces and Popular Mobilization Forces. Iran continues to seek influence and oppose the U.S. goals in Iraq.

Human rights problems continue to occur, including sectarian hostility, corruption, and lack of transparency at all levels of government and society. These problems weakened the government's authority and worsened effective human rights protections. Iraqi Security Forces, members of the Federal Police, and the Peshmerga committed some human rights violations, and there continued to be reports of Popular Mobilization Forces killing, torturing, kidnapping, and extorting civilians.

Observers also reported other significant human rights-related problems: harsh and life-threatening conditions in detention and prison facilities; arbitrary arrest and lengthy pretrial detention, denial of fair public trial; insufficient judicial institutional capacity; ineffective implementation of civil judicial procedures and remedies; arbitrary interference with privacy and homes; limits on freedom of expression, including press freedoms; violence against and harassment of journalists; undue censorship; social, religious, and political restrictions in academic and cultural matters; limits on freedoms of peaceful assembly and association; limits on religious freedom due to violence by extremist groups; restrictions on freedom of movement including on refugees and internally displaced persons; discrimination against and societal abuse of women and ethnic, religious, and racial minorities, including exclusion from decision-making roles; trafficking in persons; societal discrimination and violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons; seizure of property without due process; and limitations on worker rights.

The United States’ extraordinary commitment to Iraq is balanced against the inherent dangers of the ongoing conflict in Iraq to its citizens and residents and the Iraqi government’s problems developing and complying with the rule of law. A top national security goal of the United States is to establish relationships, cooperation, training, and support of the Iraqi Government and military in the ongoing war against terrorism.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is

clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Exec. Or. 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Foreign Influence

AG ¶ 6 explains the security concern about “foreign contacts and interests” stating:

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.

AG ¶ 7 has three conditions that could raise a security concern and may be disqualifying 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;

(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; and (e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion. When an allegation under a disqualifying condition is established, “the Directive presumes there is a nexus or rational connection between proven conduct or circumstances . . . and an applicant’s security eligibility. Direct or objective evidence of nexus is not required.” ISCR Case No. 17-00507 at 2 (App. Bd. June 13, 2018) (citing ISCR Case No. 15-08385 at 4 (App. Bd. May 23, 2018)).

Applicant admitted that his parents-in-law and brother-in-law are citizens and residents of Iraq. His spouse was a citizen and resident of Iraq until September 2018. She is now a resident of the United States. Her connections to her family in Iraq is the primary security concern.

There are widely documented safety issues for residents of Iraq primarily because of terrorists and insurgents. Applicant is willing to voluntarily share in those dangers on behalf of the DOD in the future. Numerous linguists, supporting U.S. forces, have family living in Iraq. Hundreds of United States and coalition armed forces and civilian contractors serving in countries such as Iraq and Afghanistan are targets of terrorists, along with civilians and soldiers who support the Iraqi and Afghan governments and cooperate with coalition forces.

The mere possession of close family ties with relatives living in a country hostile to the United States or with a problem with terrorists and insurgents is not, as a matter of law, disqualifying under Guideline B. However, if an applicant or his or her spouse has such a relationship with even one person living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 08-02864 at 4-5 (App. Bd. Dec. 29, 2009) (discussing problematic visits of applicant’s father to Iran).

There is a rebuttable presumption that a person has ties of affection for, or obligation to, his or her immediate family members, and this presumption includes in- laws. ISCR Case No. 07-06030 at 3 (App. Bd. June 19, 2008); ISCR Case No. 05- 00939 at 4 (App. Bd. Oct. 3, 2007) (citing ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002).

The DOHA Appeal Board has indicated for Guideline B cases, “the nature of the foreign government involved and the intelligence-gathering history of that government are among the important considerations that provide context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is another important consideration.” ISCR Case No. 16-02435 at 3 (May 15, 2018) (citing ISCR Case No. 15-00528 at 3 (App. Bd. Mar. 13, 2017)). Another significant consideration is the nature of a nation’s government’s relationship with the United States. These factors are relevant in assessing the likelihood that an applicant’s family members living in that country are vulnerable to government coercion or inducement.

The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, the government ignores the rule of law including widely accepted civil liberties, a family member is associated with or dependent upon the government, the government is engaged in a counterinsurgency, terrorists cause a substantial amount of death or property damage, or the country is known to conduct intelligence collection operations against the United States. The relationship of Iraq with the United States, and the situation in that country places a significant burden of persuasion on Applicant to demonstrate that his relationship with any family member living in or visiting that country does not pose a trustworthiness or security risk. Applicant should not be placed into a position where he might be forced to choose between loyalty to the United States and a desire to assist a relative living in or visiting Iraq.5

5 The Appeal Board in ISCR Case No. 03-24933, 2005 DOHA LEXIS 346 at *20-*21 n. 18 (App. Bd. 2005), explained how relatives in a foreign country have a security significance:

Guideline B security concerns are not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. See ISCR Case No. 02-22461, 2005 DOHA LEXIS 1570 at *11-*12 (App. Bd. Oct. 27, 2005) (citing ISCR Case No. 02-26976 at 5-6 (App. Bd. Oct. 22, 2004)) (discussing Taiwan). While there is no evidence that intelligence operatives, criminals, or terrorists from or in Iraq seek or have sought classified or economic information from or through Applicant or his family, nevertheless, it is not prudent to rule out such a possibility in the future. International terrorist groups are known to conduct intelligence activities as effectively as capable state intelligence services, and Iraq has a significant problem with terrorism. Applicant’s family in Iraq “could be a means through which Applicant comes to the attention of those who seek U.S. information or technology and who would attempt to exert coercion upon him.” ADP Case No. 14-01655 at 3 (App. Bd. Dec. 9, 2015) (citing ISCR Case No. 14-02950 at 3 (App. Bd. May 14, 2015)). Applicant’s relationships with relatives who are living in Iraq or visiting that country create a potential conflict of interest because terrorists could place pressure on his family in Iraq in an effort to cause Applicant to compromise classified information. These relationships create “a heightened risk of foreign inducement, manipulation, pressure, or coercion” under AG ¶ 7. Department Counsel produced substantial evidence of Applicant’s spouse’s relationships with her family in Iraq and has raised the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a), 7(b), and 7(e) apply, and further inquiry is necessary about potential application of any mitigating conditions.

AG ¶ 8 lists six conditions that could mitigate foreign influence security concerns 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

The issue under Guideline B is not whether an applicant’s immediate family members in a foreign country are of interest to a foreign power based on their prominence or personal situation. Rather, the issue is whether an applicant’s ties and contacts with immediate family members in a foreign country raise security [or trustworthiness] concerns because those ties and contacts create a potential vulnerability that a foreign power could seek to exploit in an effort to get unauthorized access to U.S. classified information that an applicant -- not the applicant’s immediate family members -- has by virtue of a security clearance [or public trust position]. A person may be vulnerable to influence or pressure exerted on, or through, the person’s immediate family members -- regardless of whether the person’s family members are prominent or not.

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;

(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;

(d) the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and

(f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶¶ 8(b) and 8(c) apply. Applicant has “deep and longstanding relationships and loyalties in the U.S.” Applicant has resided in the United States since 2008. Applicant, his parents, and all of his siblings are citizens and residents of the United States. Applicant’s spouse is a permanent resident of the United States. He swore an oath of allegiance to the United States as part of the citizenship process. He is willing to serve in as a linguist in Iraq or Kuwait supporting U.S. goals in those countries.

Applicant’s willingness to support the DOD in Iraq or Kuwait as a linguist and cultural advisor, including the dangers that service in Iraq entails, weighs towards mitigating security concerns. Applicant seeks a security clearance to enable him to provide assistance to DOD possibly in a dangerous combat environment. He has offered to risk his life to support the United States’ goals in Iraq. His offer of service in a dangerous area of the world shows his patriotism, loyalty, and fidelity to the United States.

In ISCR Case No. 17-00629 at 4 (App. Bd. May 24, 2018), the Appeal Board cogently explained the relevance of such service on behalf of the United States:

Such evidence demonstrates that Applicant has repeatedly been willing to assume a high level of risk on behalf of the U.S. and shows his ties and sense of obligation to the U.S. could be sufficiently strong enough to support a favorable application of mitigating condition 8(b). See ISCR Case No. 05-03846 at 6 (App. Bd. Nov 14, 2006) (An applicant’s work in support of U.S. forces in Afghanistan occurred “in the context of dangerous high-risk circumstances in which [he] made a significant contribution to national security.”) See also ISCR Case No. 04-12363 at 2 (App. Bd. Jul. 14, 2006); ISCR Case No. 07-00034 at 2-3 (App. Bd. Feb. 5, 2008); and ISCR Case No. 10-02803 at 6 (App. Bd. Mar. 19, 2012).

Applicant’s connections to Iraq are limited as the only family members living in Iraq are his parents-in-law and brother-in-law. His contact with them is primarily through his spouse. He does not intend to travel to Iraq to visit them. He does not have property in Iraq.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with in-laws who are citizens and residents of Iraq. Like every other resident of Iraq, his in-laws are at risk from criminals, terrorists, and human rights violations of the Iraqi government.

It is important to be mindful of the United States’ huge historical investment of manpower and money in Iraq and Kuwait and Applicant’s willingness to support U.S. goals and objectives in Iraq and Kuwait despite the risks to his personal safety. Applicant and his in-laws living in Iraq are potential targets of terrorists, and Applicant’s potential access to classified information could theoretically add risk to his in-laws living in that country from lawless elements in Iraq.

In sum, Applicant’s connections to his relatives living in Iraq continue but are attenuated as they are through his wife. His connections to the United States taken together, including his willingness to support U.S. goals in a combat environment, are sufficient to overcome the foreign influence security concerns under Guideline B.

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 the 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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guideline B are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline but some warrant additional comment.

Applicant is 28 years old, and he wants to become a linguist for employment in Iraq or Kuwait. In 2011, he graduated from high school in the United States. He has two years of college. In June 2016, he married a citizen and resident of Iraq, and in September 2018, his spouse immigrated to the United States. She is now a U.S. permanent resident. He does not have any children.

A Guideline B decision concerning Iraq must take into consideration the geopolitical situation and dangers there.6 Iraq is a dangerous place because of violence from terrorists, and the Iraqi government does not respect the full spectrum of human rights. Terrorists continue to threaten the Iraqi government, the interests of the United States, U.S. Armed Forces, and those who cooperate and assist the United States. The United States and Iraqi governments are allies in the war on terrorism.

Applicant’s parents-in-law and brother-in-law are citizens and residents of Iraq. Applicant rarely communicates with his in-laws in Iraq; however, his spouse communicates with them about three times a week. Her contacts with her family in Iraq are a manifestation of her care and concern for them. His relationship with his spouse and her relationships with residents of Iraq raise important foreign influence security concerns. Those connections are balanced against his connections to the United States. Applicant’s parents and siblings are citizens and residents of the United States. He swore allegiance to the United States and offered to renounce his Iraqi citizenship.

I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude foreign influence security concerns are mitigated. Eligibility for access to classified information is granted.

6 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient discussion of geopolitical situation and suggesting expansion of whole-person discussion).

FORMAL FINDINGS

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B:

FOR APPLICANT

Subparagraphs 1.a through 1.c: 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 eligibility for a security clearance. Eligibility for access to classified information is granted.

____________________________ Mark Harvey Administrative Judge