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ISCR Case 16-02044.h1 — CASE

ISCR Case 16-02044.h1granted

Case Headnote

ISCR Case No. 16-02044.h1

grantedSep 27, 2017· Hon. Juan J. Rivera· hearing

Summary

A 43-year-old linguist and translator was granted a security clearance despite initial concerns under Guideline B (Foreign Influence) due to family ties in Lebanon. The Statement of Reasons alleged that the applicant had family members who were citizens and residents of Lebanon, maintained connections and contact with them, and that these family members traveled to and maintained ties in Lebanon, potentially creating a conflict of interest and raising security risks. These allegations invoked Disqualifying Conditions AG ¶ 7(a) and AG ¶ 7(b).

However, the applicant successfully mitigated these concerns by demonstrating his loyalty to the United States. He formally renounced his Lebanese citizenship and presented a proven track record of service to U.S. forces, including experiencing enemy fire.

Furthermore, U.S. military personnel provided strong endorsements supporting his reliability and trustworthiness. The judge applied Mitigating Conditions AG ¶ 8(a) and AG ¶ 8(b), ultimately finding that granting the clearance was consistent with national security interests.

Why the Applicant Prevailed

Applicant demonstrated loyalty to the U.S. by renouncing his Lebanese citizenship.
He has a proven track record of service to U.S. forces, including coming under enemy fire.
Endorsements from U.S. military personnel supported his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections Creating Potential Conflict of Interest

Mitigating

AG ¶ 8(a)appliedUnlikely to Be Placed in a Position of Conflict
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties

Key Rule Quoted

“Eligibility for access to classified information may be granted "only upon a finding that it is clearly consistent with the national interest to do so."”
— Exec. Or. 10865, § 2.

Procedural Posture

SOR issuedSep 22, 2016
Answer filedOct 16, 2016
Hearing heldSep 27, 2017Applicant requested an expedited hearing.
Decision dateSep 27, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Demonstrating Loyalty Through Military Service and Citizenship Renunciation
Importance of Character Endorsements From U.S. Military Personnel in Security Clearance Cases.

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: Decision on RecordDecided: granted

The judge found that the applicant mitigated foreign influence security concerns related to family members in Lebanon. The applicant's allegiance to the United States was supported by his renunciation of Lebanese citizenship and his commendable service to U.S. forces, leading to a decision to grant security clearance.

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 · U.S. Spouse or Partner · U.S. Home or Property · U.S. Career or Business · U.S. Financial Assets Predominant · Community or Civic Involvement · Intent to Remain in U.S. · Renounced or Surrendered Foreign Citizenship or Passport

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant has family members who are citizens and residents of Lebanon.	For Applicant	Parent in Foreign Country Immediate Family	Lebanon HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.b	Applicant has connections to family members in Lebanon who may create a potential conflict of interest.	For Applicant	Parent in Foreign Country Immediate Family	Lebanon HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.c	Applicant has contact with family members in Lebanon, which raises security concerns.	For Applicant	Parent in Foreign Country Immediate Family	Lebanon HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.d	Applicant's family members travel to Lebanon and maintain ties there, which could pose risks.	For Applicant	Parent in Foreign Country Immediate Family	Lebanon HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—

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. 16-02044 ) ) Applicant for Security Clearance

For Government: Carroll Connelly, Esq., Department Counsel For Applicant: Pro se

09/27/2017 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Applicant mitigated foreign influence security concerns raised by family members in Lebanon. His past behavior demonstrates he can resolve any potential conflict of interest in favor of the United States. His allegiance to the United States was corroborated by his renunciation of his Lebanese citizenship, and by his dependability and performance while supporting U.S. forces even under enemy fire. U.S. military service members who served with him endorsed his eligibility for a clearance. Clearance is granted.

Statement of the Case

Applicant submitted a security clearance application (SCA) on June 20, 2014. After reviewing it and the information gathered during a background investigation, the Department of Defense (DOD) issued him a Statement of Reasons (SOR) on September 22, 2016, alleging security concerns under Guideline B (foreign influence). Applicant answered the SOR on October 16, 2016, and requested a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA).

The case was assigned to me on December 30, 2016. The DOHA issued a notice of hearing that same day, setting the hearing for January 12, 2017. At the hearing, the Government offered six exhibits (GE 1 through 6). The Government’s request for me to take administrative notice of facts concerning Lebanon (GE 6) was marked and made part of the record, but it is not evidence. Applicant testified and submitted exhibits (AE) 1 through 6. All exhibits were admitted without objection. DOHA received the hearing transcript (Tr.) on January 19, 2017.

Procedural Issue

Applicant was deployed overseas working for a federal contractor, and Department Counsel had difficulty communicating with him to schedule his hearing. Applicant requested an expedited hearing and returned to the United States for the hearing. At hearing, Applicant stated he had sufficient time to prepare, was ready to proceed, and affirmatively waived his right to 15-days of advanced notice of his hearing. (Tr. 13-15)

Department Counsel requested I take administrative notice of facts concerning Lebanon. (GE 6) There were no objections, and I took administrative notice as requested. The noted facts are incorporated in my findings of fact.

FINDINGS OF FACT

Applicant admitted all the SOR factual allegations. His admissions to the SOR and at his hearing are incorporated herein as findings of fact. After a thorough review of the record evidence, including his testimony and demeanor while testifying, I make the following additional findings of fact:

Applicant is a 43-year-old linguist and translator. He has worked for a federal contractor, his current employer and clearance sponsor, at various times since 2008. (Tr. 78-80) Applicant married his wife in 2003 in the United States, and they divorced in 2012. He has no children.

Applicant was born, raised, and educated in Beirut, Lebanon. He graduated from high school in Lebanon. He was drafted into the Lebanese army where he served as an enlisted soldier for a period of one year. He immigrated to the United States in May 1999, and became a naturalized U.S. citizen in November 2009. He left Lebanon seeking opportunities to prosper and to better himself. Applicant renounced his Lebanese citizenship and surrendered his Lebanese passport before his naturalization as a U.S. citizen to avoid any confusion. (See the Lebanese Consulate General Letter in his Answer to the SOR.) Since immigrating to the United States, he has taken various college courses, but has not accumulated sufficient college courses to earn a degree.

Applicant’s parents, siblings, and extended family members were born, raised, and educated in Lebanon. His father (81), mother (69), and brother (45) are Lebanese citizens residing permanently in the United States. His father retired as a lieutenant from the Lebanese Police Department in 1988, and has no current association with the Lebanese government. His mother has always been a homemaker. Applicant sponsored his parents and one brother into the United States. They immigrated to the United States in 2011. He has weekly telephonic contact with his immediate relatives. They live legally in the United States, and while in the United States, they are not subject to possible coercion or harm. Applicant’s father has a pension and medical benefits from the Lebanese government, which he cannot receive while living in the United States. Applicant’s parents and brother travel yearly to and stay in Lebanon for extended periods (four months a year). His parents go back to collect his pension and receive medical benefits. His brother accompanies his parents and visits friends and relatives in Lebanon. His parents have not applied for U.S. citizenship because they have problems with the English language.

Applicant second brother (44, works at a liquor store) and two sisters (ages 40 and 38, both teachers), are citizens and residents of Lebanon. According to Applicant, they are working on requesting their green cards to immigrate to the United States. Since 1999, Applicant often sent money to his immediate relatives in Lebanon to help them with their basic living expenses, sometimes $1,000-$1,500 a month. He stopped sending money after his parents immigrated to the United States in 2011. Applicant testified he does not own any financial or property interests in any foreign country, including Lebanon.

Since 2009, Applicant has faced the possibility of harm to him or his relatives in Lebanon because of his job for U.S. contractors in support of U.S. interests in Middle East countries. Applicant has maintained his loyalty and fiduciary obligations to the United States. He would like to continue to serve U.S. forces and contractors on other missions in the future.

Applicant claimed he came under enemy fire while assisting U.S. military forces about six times. (Tr. 80-82) He presented 10 character statements, eight from U.S. service members who served with him while deployed in support of the U.S. military forces in Kuwait and Iraq. According to his references, Applicant demonstrated good skills and abilities as an interpreter and linguist. He proved to be a valuable asset to the U.S. forces in accomplishing their missions, and gained the trust and confidence of his then references. His references consider him to be dependable, reliable, and trustworthy. (AE 1, Answer to the SOR) They recommended Applicant for a position of trust. Additionally, Applicant submitted 13 certificates of appreciation from the different U.S. military units he worked for in Kuwait and Iraq, recognizing and praising his excellent performance, expertise, outstanding effort, and professionalism. Applicant’s reference statements demonstrate he has a track record of resolving potential conflicts of interest in favor of U.S. interests.

I take administrative notice of the following facts concerning Lebanon. The Lebanese government recognizes Hizballah, a terrorist organization, as a legitimate political party. Hizballah provides support to several Palestinian terrorist organizations and is known to be involved in numerous anti-U.S. and anti-Israeli terrorist attacks, in and around Lebanon. Other extremist groups designated as terrorist organizations operating in Lebanon include ISIL, ANF, Hamas, and the Abdullah Azzam Brigades. Lebanon has human rights problems, including the arbitrary arrest and detainment of individuals and instances of arbitrary and unlawful deprivation of life, torture, and other abuses. Americans have been the targets of numerous terrorist attacks in Lebanon. The U.S. State Department warns U.S. citizens to avoid traveling to Lebanon because of the threats of terrorism, armed clashes, violence, and kidnappings. (GE 6)

POLICIES

The SOR was issued under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on September 1, 2006. The case will be decided under Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines (AG), effective 8 June 2017, which replaced the 2006 AG.

Eligibility for access to classified information may be granted “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, § 2. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

The AG list disqualifying and mitigating conditions for evaluating a person’s suitability for access to classified information. Any one disqualifying or mitigating condition is not, by itself, conclusive. However, the AG should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Each decision must reflect a fair, impartial, and commonsense consideration of the whole person and the factors listed in SEAD 4, App. A ¶¶ 2(d) and 2(f). All available, reliable information about the person, past and present, favorable and unfavorable, must be considered.

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; SEAD 4, ¶ E(4); SEAD 4, App. A, ¶¶ 1(d) and 2(b). Clearance decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing a clearance.

ANALYSIS

Guideline B, Foreign Influence

The foreign influence security concern is explained at 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.1

I Individuals are not automatically disqualified from holding a security clearance because they have connections and contacts in a foreign country. Instead, in assessing an individual’s potential vulnerability to foreign influence, an administrative judge must take into account the foreign government involved; the intelligence-gathering history of that government; the country’s human rights record; and other pertinent factors.2

The serious security threat posed by terrorist organizations and other elements hostile to the United States must be taken into account in assessing the security concerns raised by Applicant’s familial connections in Lebanon. Applicant’s relationship to these foreign relatives, coupled with the facts administratively noticed, raise a heightened security concern.

In assessing the security concern raised by Applicant’s foreign contacts, I have considered the following disqualifying and mitigating conditions: AG ¶ 7(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;

AG ¶ 7(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;

AG ¶ 8(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 U.S.;

AG ¶ 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.

An individual with family members and other connections in a foreign country faces a high, but not insurmountable, hurdle in mitigating security concerns raised by such foreign ties. An applicant is not required “to sever all ties with a foreign country before he or she can be granted access to classified information.”3 However, what factor or combination of factors will mitigate security concerns raised by an applicant with family members in a foreign country is not easily identifiable or quantifiable.4

Applicant immigrated to the United States in 1999, started working for federal contractors in 2008, and became a U.S. citizen in 2009. He sponsored his parents and one brother to immigrate to the United States in 2011. They live legally in the United States, and while in the United States, they are not subject to possible coercion or harm. Applicant’s parents and brother travel yearly to and stay in Lebanon for extended periods (four months a year). His parents go back to collect his pension and receive medical benefits, his brother travels with his parents and visits with friends and relatives in Lebanon. His parents have not applied for U.S. citizenship because they have problems with the English language. Applicant has three siblings living in Lebanon, all of whom are working on immigrating to the United States. Since 2009, Applicant has faced the possibility of harm to him or his relatives in Lebanon because of his job for U.S. contractors in support of U.S. interests in Middle East countries. Applicant has maintained his loyalty and fiduciary obligations to the United States. He would like to continue to serve U.S. forces and contractors on other missions in the future. Applicant’s reference statements, demonstrate he has a track record of resolving potential conflicts of interest raised during his job in favor of U.S. interests.

Applicant’s statements of allegiance to the United States, to report any attempted coercion or threats, and to resolve any potential conflict of interest in favor of the United States, are supported by his 10-year track record of working for and supporting U.S. interests in the Middle East. His allegiance to the United States was corroborated by his renunciation of his Lebanese citizenship and surrendering his Lebanese passport. His dependability and performance while working for U.S. forces and coming under enemy fire six times, speak favorably of his allegiance and commitment to the United States. U.S. military service members who served with him in Kuwait and Iraq endorse his eligibility for a clearance.5 (I noted the reference statements did not comment on whether Applicant came under fire while working with them.) Additionally, Applicant has developed deep and long-lasting bonds in the United States, as evidenced by the reference letters.

Accordingly, after a complete and thorough review of the record evidence, and while remaining mindful of my duty to resolve any unmitigated doubt in favor of protecting national security, I find that Applicant mitigated the security concerns raised by his connections to and contact with his family in Lebanon.

WHOLE PERSON CONCEPT

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, and under the whole-person concept. SEAD 4, App. A, ¶¶ 2(a), 2(d) and 2(f). I have incorporated my comments under Guideline B in my whole-person analysis. Some of these factors were addressed under that guideline, but some warrant additional comment.

Applicant is a 43-year-old employee of a federal contractor. He has worked for U.S. forces in the Middle East at various times since 2008. He established a reputation for his linguistic abilities. Moreover, Applicant is considered to be a trusted employee, who is reliable, dependable, and a loyal American. He accompanied U.S. forces on numerous military missions where he risked his life and came under enemy fire six times. His references, U.S. military service members who served with him in Kuwait and Iraq, endorsed his eligibility for a clearance.

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 - 1.d: For Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national security interests of the United States to grant eligibility for a security clearance to Applicant. Clearance is granted.

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 ISCR Case No. 09-07565 at 3 (App. Bd. Jul. 12, 2012) (“As the Supreme Court stated in Egan, a clearance adjudication may be based not only upon conduct but also upon circumstances unrelated to conduct, such as the foreign residence of an applicant’s close relatives.”) (internal citation omitted).

2 ISCR Case No. 05-03250 at 4 (App. Bd. Apr. 6, 2007) (setting forth factors an administrative judge must consider in foreign influence cases). 3 ISCR Case No. 07-13739 at 4 (App. Bd. Nov. 12, 2008).

4 ISCR Case No. 11-12202 at 5 (App. Bd. Jun. 23, 2014). 5 ISCR Case No. 07-00034 at 2 (App. Bd. Feb. 5, 2008) (“Generally, an Applicant’s statements, by themselves, as to what he would do in the face of threats by a foreign government or entity are entitled to little weight. On the other hand, an applicant’s proven record of action in defense of the U.S. is very important and can lead to a favorable result for an applicant in a Guideline B case. In this case, Applicant has served the U.S. military as a translator in dangerous circumstances in Afghanistan and has risked his life to protect American personnel there.) See also ISCR Case No. 05-03846 at 6 (App. Bd. Nov. 14, 2006) (“As a general rule, Judges are not required to assign an applicant’s prior history of complying with security procedures and regulations significant probative value for purposes of refuting, mitigating, or extenuating the security concerns raised by the applicant’s more immediate disqualifying conduct or circumstances. However, the Board has recognized an exception to that general rule in Guideline B cases, where the applicant has established by credible, independent evidence that his compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant had made a significant contribution to the national security. The presence of such circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report a foreign power’s attempts at coercion or exploitation.”) (internal citations omitted).