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ISCR Case 16-02165.h1 — CASE

ISCR Case 16-02165.h1denied

Case Headnote

ISCR Case No. 16-02165.h1

deniedApr 12, 2017· Hon. Carol G. Ricciardello· hearing

Summary

A 39-year-old naturalized U.S. citizen, originally from Venezuela, was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed from the applicant's close familial ties to Venezuela, a country identified as having significant political and security issues.

Specifically, the applicant maintains regular contact with his parents, brother, and other relatives who reside in Venezuela. A key concern was that the applicant's father is a former mayor and public figure in Venezuela. The judge determined that these close relationships, particularly with a public figure in a country with security concerns, created a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.

Despite the applicant's long-term U.S. residency and lack of assets in Venezuela, the judge concluded that the potential for foreign influence and a conflict of interest was too significant. Therefore, the security clearance was denied.

Why the Applicant Was Denied

The applicant has close familial ties to Venezuela, a country with significant political and security concerns.
The applicant's father is a public figure in Venezuela, increasing the risk of foreign influence.
The applicant maintains regular contact with family members in Venezuela, which creates a potential conflict of interest.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family MembersThe applicant's contact with family members in Venezuela creates a heightened risk of foreign exploitation.
AG ¶ 7(b)raisedConnections to Foreign PersonsThe applicant's familial connections create a potential conflict of interest.

Key Rule Quoted

“The mere possession of a close personal relationship with a person who is a citizen and resident of a foreign country is not, as a matter of law, disqualifying under Guideline B.”
— ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004)

Procedural Posture

SOR issuedAug 12, 2016
Answer filedAug 31, 2016
Hearing heldMar 3, 2017
Decision dateApr 12, 2017

Cite For

Heightened Risk of Foreign Influence Due to Familial Ties Under Guideline B
Impact of Foreign Political Connections on Security Clearance Eligibility
Consideration of the Whole-person Concept in Security Clearance Decisions

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: denied

The judge found that the applicant's close familial ties to Venezuela, including regular contact with his parents and brother who are citizens and residents of that country, created a heightened risk of foreign influence. The applicant's father, a former mayor, further exacerbated these concerns. As a result, the applicant was denied eligibility for a security clearance under Guideline B for foreign influence.

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. Children · U.S. Home or Property · U.S. Financial Assets Predominant

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant maintains regular contact with his parents, brother, and some relatives who are citizens and residents of Venezuela.	Against Applicant	Parent in Foreign Country Immediate Family	Venezuela HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	Applicant's contacts with his family members in Venezuela create a heightened risk of foreign exploitation, inducement, manipulation, pressure or coercion.	Against Applicant	Parent in Foreign Country Immediate Family	Venezuela HEIGHTENED RISK	Admitted	(b) connections creating a potential conflict of interest	—	—

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. 16-02165 ) ) Applicant for Security Clearance

For Government: David Hayes, Esq., Department Counsel For Applicant: Pro se

04/12/2017 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant failed to mitigate the security concerns under Guideline B, foreign influence. Eligibility for a security clearance is denied.

Statement of the Case

On August 12, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006.

Applicant answered the SOR on August 31, 2016, and requested a hearing before an administrative judge. The case was assigned to me on February 2, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 14, 2017. I convened the hearing as scheduled on March 3, 2017. The Government offered exhibits (GE) 1 and 2. Applicant testified and offered Applicant’s exhibits (AE) A through Q. All exhibits were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on March 14, 2017.

Request for Administrative Notice

Department Counsel submitted Hearing Exhibit I, a written request that I take administrative notice of certain facts about Venezuela. Applicant did not object, and I have taken administrative notice of the facts contained in the request that are supported by source documents from official U.S. Government publications. I have also considered facts from the U.S. State Department’s official website regarding a current travel advisory. The facts are summarized in the Findings of Fact, below.

PROCEDURAL MATTERS

The Government moved to amend the SOR by adding a second brother to SOR ¶ 1.a. There was no objection and the motion was granted.

FINDINGS OF FACT

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

Applicant is 39 years old. He was born in Venezuela. He has a bachelor’s and a master’s degree. He married in 2004 and has two children, ages nine and ten, who were born in the United States. He also has a 19-year-old stepchild who is married. Applicant became a naturalized citizen of the United States in 2014. Applicant has worked for different government contractors since about 2006.1

Applicant came to the United States in 1994 on a student visa. His parents provided him financial support from 1994 to about 2004 while he was a student and until he obtained a steady job. He returned to Venezuela five times while a student. His last trip was in 2004 to visit his parents and siblings. His parents, brother, half-brother, some uncles, aunts, and other relatives traveled to his wife’s country of origin for their wedding celebration. Applicant estimated about 30 relatives traveled. Applicant maintained a Venezuelan passport until he became a naturalized U.S. citizen in 2014. His Venezuelan passport is expired and he has no plans to renew it.2

Applicant voted in the Venezuelan elections in 1998 and again 2013 because he felt it was his civic duty. He voted at the Venezuelan consulate in the United States. He does not own property in Venezuela and has not served in its military. He owns two houses in the United States, one is his primary residence and the other is a rental property. He participates in his employer’s retirement plan and has other savings accounts.3

Applicant’s father is a citizen and resident of Venezuela. His father served as mayor of a city in Venezuela for three years in the 1990s.4 Applicant testified that being the mayor was a significant political position. He is now a professor at a private university. Applicant was living in Venezuela when his father was mayor. He is unaware of his father’s current political affiliation or if he belongs to a political party. Applicant did not know if his father worked for the Venezuelan Government in the past. He does not know if his father receives a pension or other government benefits. He does not know why his father was involved in politics. He is aware that his parents have assets in Venezuela, but does not know if they own real property.

Applicant has visited with his family in the United States in December 2011 for a family reunion, at a wedding in 2014, and his father visited him in 2015. In December 2016, Applicant’s parents, brother, sister, niece and her child all visited him and his family in the United States. His brother and sister who reside in the United States were also present. Applicant disclosed on his security clearance application (SCA) that he and his father attempt to see each other every other year.5 He testified that he has contact with his father about every four months.6

Applicant testified that his father is well known in Venezuela and is interviewed on television and the radio. Applicant is unaware of the subject of the interviews and does not know if his father is outspoken about social issues.

Applicant’s mother is a citizen and resident of Venezuela. She is retired, but previously worked in human resources at a university. Applicant testified that she is not involved in politics. He has weekly contact with her either by telephone or by texting. She visits Applicant annually to see her grandchildren and stays for several weeks. He will also FaceTime with his mother about once a month. Both parents and his siblings are aware of Applicant’s employment and that he is seeking a security clearance. They live in a guarded gated community due to the high crime rate.7

Applicant’s brother is a citizen and resident of Venezuela. He is a professor at a private university. Applicant has contact with him about once a year. He sees him every two years when his brother visits in the United States. He last saw him during the December 2016 family visit.8

Applicant has another brother and sister who reside in the U.S. He is uncertain of this brother’s status, but believes he is a permanent resident. He thinks his brother has been in the United States for over ten years and intends on remaining. His sister has resided in the United States for 23 years and is a naturalized citizen. Applicant has regular contact with his sister who keeps him apprised about his brother in the U.S.9

Applicant has a half-brother who is a citizen and resident of Venezuela. He is Applicant’s mother’s son from a prior marriage. Applicant has not had any contact with him since 2004 when Applicant was in Venezuela.10

Applicant has numerous aunts, uncles, cousins and other extended family members who are citizens and residents of Venezuela. He has contact with some of them once or twice a year by email. Others he has no contact. He has some relatives who are living in different countries that he contacts sporadically. Applicant also has other relatives who live in the U.S. and are permanent residents. Applicant maintains some contact with many of these relatives through a cell phone application. There was a group message on the application and many of his relatives were part of the group. Applicant discontinued his participation in the group messaging about a year ago because he explained he was getting too many text messages. He was also concerned his contact with those in the group might affect his eligibility for a security clearance. With many of his relatives, he used social media to contact them in the past. Since he no longer is part of the group, he does not have contact with many of them. Applicant testified that some extended family members from Venezuela come to visit him in the United States.11

Applicant has no current plans to return to Venezuela. He testified that Venezuela’s economy has had negative financial effect on all of the people. He does not send his family money.12

Applicant provided numerous character letters and awards. He provided information about his financial resources in the U.S. and the professional recognition he has received. He provided copies of heritage and leadership awards. Applicant is described as dedicated, hardworking, professional, helpful, ethical, trustworthy, friendly, and kind. He is a person of integrity and high moral character.13

Venezuela14

Venezuela’s political power has been concentrated in a single party for more than ten years with an increasingly authoritarian executive exercising significant control over the legislature, judicial, and electoral branches of government. Its past and current president have defined themselves in part through their opposition to the United States, regularly criticizing the U.S. government, its policies, and its relations with Latin America. In the past, the U.S. Department of State determined that Venezuela was not cooperating fully with the U.S. antiterrorism effort. There were credible reports that Venezuela maintained a permissive environment that allowed for support of activities that benefited known terrorist groups. Individuals linked to known terrorist groups were present in Venezuela, as well as supporters and sympathizers and have used Venezuela as a safe haven. The U.S. has an embargo against Venezuela for its failure to cooperate in the areas of counterterrorism.

In response to the Venezuelan military’s violent repression of its people, the U.S. Department of Commerce imposed licensing requirements on certain items to or within Venezuela intended for military end use.

In 2015, the United States determined Venezuela had failed demonstratively to adhere to its obligations under international counternarcotic agreements. The Venezuelan Government has engaged in minimal bilateral law enforcement cooperation with the United States. Venezuelan authorities do not effectively prosecute drug traffickers, in part due to political corruption. In 2016, the United States indicted top leaders of Venezuela’s Anti-Narcotic Agency for trafficking drugs in the United States.

In 2016, the U.S. Department of State called for the release of those imprisoned for their political beliefs. The Venezuelan government continues to block efforts by international organizations to visit political prisoners and provide essential services.

Venezuela has one of the world’s highest crime rates and the second highest homicide rate. Violent crime, including murder, armed robbery, kidnapping, and carjacking is endemic throughout the country. Recent travel advisories by the U.S. State Department warn U.S. citizens against travel to Venezuela due to violent crime, social unrest, and pervasive food and medicine shortages. The political and security situation in Venezuela is unpredictable and can change quickly.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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 access to classified information 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. Likewise, I have not drawn inferences grounded on mere speculation or conjecture.

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

A person who seeks access to classified information enters 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that 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

AG ¶ 6 expresses the security concern regarding foreign influence:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.

AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying. I have considered all of them and the following are potentially applicable:

(a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a 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 sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information.

AG ¶¶ 7(a) requires evidence of a “heightened risk.” The “heightened risk” required to raise this disqualifying condition is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government. The totality of Applicant’s family ties to a foreign country as well as each individual family tie must be considered.

The mere possession of a close personal relationship with a person who is a citizen and resident of a foreign country is not, as a matter of law, disqualifying under Guideline B. However, depending on the facts and circumstances, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information.

Guideline B is 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.”15

The United States has concerns about Venezuela’s increasingly authoritarian executive exercising significant control over the legislature, judicial, and electoral branches of government. In addition, the United States has serious concerns about Venezuela’s failure to cooperate fully with the U.S. antiterrorism effort and adhere to its obligations under international counternarcotic agreements. The U.S. State Department called for the release of those imprisoned for their political beliefs. The Venezuelan government continues to block efforts by international organizations to visit political prisoners and provide essential services. Venezuela has one of the world’s highest crime rates and has the second highest homicide rate. Violent crime, including murder, armed robbery, kidnapping, and carjacking is endemic throughout the country.

Applicant’s parents, brother, and numerous relatives are citizens and residents of Venezuela. He has regular contact with his parents and brother, and some contact with his extended family living in Venezuela. His parents and brother visit him in the United States, as do some other family members, many of whom attended his wedding in his wife’s native country.

Applicant’s has ongoing close relationships with his parents, brother, and some relatives who are citizens and residents of Venezuela. Applicant’s father is a former mayor, and is a public figure. The media interview him. Applicant is unfamiliar with his father’s political party or affiliation. Applicant’s contacts with his family members in Venezuela create a heightened risk of foreign exploitation, inducement, manipulation, pressure or coercion. It also creates a potential conflict of interest. The evidence has raised AG ¶¶ 7(a).

I have analyzed the facts and considered all of the mitigating conditions under AG ¶ 8 and conclude the following are potentially applicable:

(a) the nature of the relationship 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 and interests of the U.S.;

(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 interests in favor of the U.S. interests; 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 maintains regular contact with his parents, brother, and some relatives who are citizens and residents of Venezuela. His contacts cannot be characterized as casual or infrequent. AG¶ 8(c) does not apply.

Venezuela’s tenuous relationship with the United States, its political power being concentrated in an authoritarian executive, its high crime rate, to include murder and kidnapping, among other factors as articulated above creates a heightened risk of foreign exploitation, inducement, manipulation, pressure and coercion due to Applicant’s close familial relations in that country. There is a concern that Applicant could be placed in a position of having to choose between the interest of family members in Venezuela and that of the United States. Applicant’s father’s past position as mayor of a city and as a public figure enhances these concerns, and increase the heightened risk. The fact that Applicant is unfamiliar with his father’s political affiliations or contact with the Venezuelan Government increases the security concern. His parents are aware of his job and his application for a security clearance. There is insufficient evidence to conclude it is unlikely that Applicant will be placed in a position of having to choose between the interests of his family and the interests of the U.S. AG ¶ 8(a) does not apply.

Applicant has lived in the United States for many years and is raising his family here. He does not have assets in Venezuela. Applicant voted in the 1998 and the more recent 2013 Venezuelan elections. He only recently became a U.S. citizen in 2014. As expected of a devoted son and brother, he has maintained contact with his parents and brother who live in Venezuela and visit him regularly. He maintains some contact with other family members in Venezuela. Under the circumstances, there is insufficient evidence to conclude that Applicant has such deep and longstanding relationships and loyalties in the U.S. that he can be expected to resolve any conflict of interest in favor of the U.S. interests. AG ¶ 8(b) does not apply.

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(a):

(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 the 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(a) were addressed under that guideline, but some warrant additional comment.

Applicant is 39 years old and became a naturalized citizen in 2014. He is raising his family in the United States and has worked for federal contractors since 2006. Applicant maintains strong family ties with his parents and brother, who are residents and citizens of Venezuela along with many extended family members. He voted in the 1998 and 2013 Venezuelan elections. His father is a former mayor and public figure in Venezuela. His parents are aware of his job and that he is applying for a security clearance. Although I do not question Applicant’s loyalty to the United States, I find that his strong family ties in Venezuela create an insurmountable burden for him, should a conflict of interest arise if he were placed in a position of having to choose between his family’s interests and the interests of the United States. Therefore, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the foreign influence guideline security concerns.

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: AGAINST APPLICANT

Subparagraphs 1.a-1.b: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is denied.

_____________________________ Carol G. Ricciardello Administrative Judge

FOOTNOTES

1 Tr. 24-27, 31-33, 37-44, 98. 2 Tr. 24-29, 92-99. 3 Tr. 29-31, 33-35, 84. 4 I have intentionally not mentioned the city or the years due to privacy issues. 5 GE 1. 6 Tr. 60-62, 76-85, 88, 92, 99, 102; AE L. 7 Tr. 36, 44-48, 87, 99, 101. 8 Tr. 47-49, 85. 9 Tr. 52-56. 10 Tr. 49-51, 87. 11 Tr. 56-76, 86, 89-90. 12 Tr. 47, 82, 88-89. 13 AE A, B, C, D, E, F, G, H, I, J, K, M, N, O, P, and Q. 14 HE I and II; https://travel.state.gov/content/passports/en/alertswarnings/venezuela-travel-warning.html 15 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).