ISCR Case No. 19-02095

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 19-02095 ) ) Applicant for Security Clearance ) Appearances For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Pro se April 22, 2021

CEFOLA, Richard A., Administrative Judge: Statement of the Case On January 3, 2020, 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 March 12, 2020, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on February 4, 2021. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 4, 2021, scheduling the hearing for February 26, 2021. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 3, which were admitted without objection, and Hearing Exhibits (HXs) I and II for Administrative Notice. Applicant testified on his own behalf. The record was left open until March 26, 2021, for receipt of additional documentation. Applicant offered a packet of documents,

which I marked Applicant’s Exhibit (AppX) A, which was admitted without objection. DOHA received the transcript of the hearing (TR) on March 9, 2021.

At the hearing, the Government requested I take administrative notice of certain facts relating to the Islamic Republic of Iran (Iran). Department Counsel provided an eight-page summary of the facts, supported by 19 Government documents pertaining to Iran, identified as HE I. 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.

Applicant denied all four SOR allegations. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 47-year-old employee of a defense contractor. (GX 1 at page 5.) He has been employed with the defense contractor since 2019. He does not hold a security clearance. (TR at page 26 lines 7–21.) He is married to a U.S. citizen, and has one child, age nine. (TR at page 24 line 22 to page 25 line 12, and at page 29 line 23 to page 30 line 4.)

Applicant left Iran in 1994. (TR at page 13 lines 11–14.) He first went to Turkey, then to Germany, and finally to the United States in 2003. (TR at page 16 line 19 to page 17 line 18.) He later received a bachelor’s degree from an American university. (TR at page 17 lines 14–21.) He is a Christian; and as such, was treated like a “third class citizen” in Iran. (TR at page 14 line 6 to page 15 line 4.)

Guideline B - Foreign Influence

1.a. Applicant’s mother is a citizen and resident of Iran. She is “a housewife.” Applicant contacts her a couple of times a year, the last time being seven to eight months prior to his hearing. (TR at page 21 line 23 to page 22 line 13.)

1.b. Applicant’s father is a citizen and resident of Iran. He is a retired legal clerk. Applicant has little contact with his father, the last time being three to four years prior to his hearing. (TR at page 20 line 19 to page 21 line 22.)

1.c. Applicant’s brother is a citizen and resident of Iran. “He works in a bank.” Applicant has little contact with his brother, the last time being about two years prior to his hearing. (TR at page 18 line 1 to page 19 line 4.)

1.d. Applicant’s mother-in-law and father-in-law are citizens and residents of Iran. She “used to work” in the field of agriculture, and he is retired from a company that

made cement. Applicant has not contacted his in-laws in four or five years. (TR at page 23 line 6 to page 24 line 21.) Notice I take administrative notice of the following: Iran is an authoritarian theocratic republic with a Shia Islamic political system. Iran has been designated as a State Sponsor of Terrorism since 1984. In the past, the Iranian government has spent as much as $700 million per year to support terrorist groups. Subject to certain limited exceptions, citizens of Iran are currently barred from entry into the United States.

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 the 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).

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’s parents, sibling and in-laws are citizens and residents of Iran. 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 has very little contact with his Iranian, Christian family, none of whom have any connection with the Iranian government. At most, he contacts his mother a couple of times a year. Applicant has lived in the United States for the last 18 years, where both his American wife and nine-year-old son reside. Foreign Influence is found for Applicant.

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 in the defense industry and is respected by those who know him in the workplace. (AppX A at pages 1–5.) He performs well at his job. (AppX A at pages 6 and 7.) 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 concern.

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 Subparagraphs 1.a~1.d: For Applicant

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