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ISCR Case 16-02970.h1 — CASE

ISCR Case 16-02970.h1granted

Case Headnote

ISCR Case No. 16-02970.h1

grantedOct 13, 2017· Hon. Robert E. Coacher· hearing

Summary

A 56-year-old U.S. citizen, originally from Afghanistan, was granted a security clearance despite concerns under Guideline B (Foreign Influence) regarding his family ties. The Statement of Reasons alleged that his mother, five brothers (one of whom was a sub-governor), two sisters, and both in-laws resided in Afghanistan. It was also noted that the applicant sent approximately $300 monthly to his mother. These facts raised disqualifying conditions under Adjudicative Guideline paragraphs 7(a) and 7(b).

However, the applicant successfully mitigated these concerns, with the judge applying Adjudicative Guideline paragraph 8(b). The decision highlighted the applicant's deep and longstanding relationships and loyalties within the U.S. Crucially, his service as a linguist for U.S. forces across multiple deployments demonstrated a strong commitment to national security.

Furthermore, it was established that his family members in Afghanistan were not affiliated with the Afghan government and were unaware of his specific work. These factors collectively led to the granting of the security clearance.

Why the Applicant Prevailed

The applicant established deep and longstanding relationships and loyalties in the U.S.
He served multiple deployments as a linguist for U.S. forces, demonstrating commitment to national security.
The applicant's family members in Afghanistan are not affiliated with the government and are not aware of his work.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 8(b)appliedDeep and Longstanding Relationships in the U.S.

Key Rule Quoted

“The mere possession of close family ties with a family member living in Afghanistan is not, as a matter of law, disqualifying under Guideline B.”

Procedural Posture

SOR issuedOct 3, 2016
Answer filedOct 27, 2016Applicant elected to proceed without a hearing.
Decision dateOct 13, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Service in Evaluating Foreign Ties
Consideration of Family Members' Lack of Government Affiliation 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: granted

The judge found that the applicant mitigated the security concerns under Guideline B related to foreign influence. The applicant's relationships with relatives in Afghanistan were acknowledged, but his deep and longstanding ties to the United States were deemed sufficient to resolve any potential conflicts of interest. Consequently, the applicant was granted eligibility for a 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. Children · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The SOR alleged that Applicant’s mother, five brothers (with one brother being a sub-governor of Afghanistan), two sisters, and his father-in-law (a retired Afghan police officer) and mother-in-law are all residents and citizens of Afghanistan. It further alleges Applicant sends approximately $300 monthly to his mother.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b–1.f	5 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—

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. 16-02970 ) Applicant for Security Clearance )

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se

10/13/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant mitigated the security concerns under Guideline B, foreign influence. Applicant’s eligibility for a security clearance is granted.

Statement of the Case

On October 3, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence. The DOD CAF acted 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).1 Applicant answered the SOR on October 27, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on November 14, 2016. The evidence included in the FORM is identified as Items 2-7 (Item 1 includes pleadings and transmittal information, Item 8 is a request for administrative notice on Afghanistan). The FORM was mailed to Applicant, who received it on December 10 2016. Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not file objections, but submitted exhibits (AE A and B). Items 3-7 and AE A and B are admitted into evidence without objection. The case was assigned to me on October 1, 2017.

PROCEDURAL RULINGS

Administrative Notice

I took administrative notice of facts concerning Afghanistan. Department Counsel provided supporting documents that verify, detail, and provide context for the requested facts. The specific facts noticed are included in the Findings of Fact.2

Administrative or official notice is the appropriate type of notice used for administrative proceedings.3 Usually administrative notice in ISCR proceedings is accorded to facts that are either well known or from U.S Government reports.4

FINDINGS OF FACT

In Applicant’s answer to the SOR, he admitted all the allegations, with explanations. His admissions are incorporated into the findings of fact. After a thorough and careful review of the evidence, I make the following additional findings of fact.

Applicant is 56 years old. He was born in Afghanistan. He immigrated to the United States in 2000 and received permanent resident status in 2001. He became a U.S. citizen in 2005. He has a master’s degree. In 1990, he married his wife in Afghanistan. She is a naturalized U.S. citizen. They reside together at their home in the United States. He has three children who are U.S. citizens and residents. All three children reside with Applicant at his home. Applicant has worked for the U.S. military as a linguist from August 2012 to May 2014 (resigned position to come back to the U.S. to receive medical treatment); December 2007 to March 2011 (came back to U.S. because of injury suffered while deployed); and May 2006 to December 2007. He was deployed

administrative notice). to Afghanistan on all these occasions. He went through counterterrorism screenings in 2006, 2007, 2008, 2012, 2014, and 2016.5

The SOR alleged that Applicant’s mother, five brothers (with one brother being a sub-governor of Afghanistan), two sisters, and his father-in-law (a retired Afghan police officer) and mother-in-law are all residents and citizens of Afghanistan. It further alleges Applicant sends approximately $300 monthly to his mother.

Applicant has the following relatives who are residents and/or citizens of Afghanistan:

1. His mother, who is 82 years old. She is a housewife. Applicant has monthly contact with his mother. He also sends her approximately $300 monthly to support her medical expenses. She is not aware of what he does for a living or where he works. She is not affiliated with the Afghan government. He has monthly contact with her.6

2. Applicant’s five brothers and two sisters. None of his brothers or sisters knows what he does for a living or where he works. None of his siblings have any Afghan government connections. His brother that was a sub-governor retired from that position. He has sporadic contact with these siblings. The contact ranges from monthly to once every two years.7

3. His father-in-law and mother-in-law. His father-in-law is retired from his police position. He is unaware of Applicant’s work. Applicant’s contact with him is limited to twice a month. His mother-in-law is a housewife. She is unaware of Applicant’s work. Applicant’s contact with her is twice a year. Neither have any current affiliations with the Afghan government.8

Applicant presented awards and training certificates he received while deployed as a linguist for U.S. forces in Afghanistan. His certificates include recognition for completing two linguist training courses and a pre-deployment training course. He was also recognized for providing “one year of dedicated service to the U.S. military in support of Operation Enduring Freedom (OEF).” The commander of a combined joint task force (Major General) presented Applicant with a certificate of achievement specifically recognizing him for his professionalism and dedication to duty, which helped deter the re-emergence of terrorism in the region.9 Afghanistan

A U.S. State Department travel warning remains in effect for Afghanistan. Extremists associated with various Taliban networks, the Islamic State of Iraq and Levant, and members of other armed opposition groups are active throughout the country. Afghanistan continues to experience aggressive and coordinated attacks by the Taliban and other terrorist groups. The border region between Afghanistan and Pakistan remains a safe haven for terrorists. The country’s most significant human-rights concern during 2015 was widespread violence, armed insurgent groups’ attacks on civilians, and killing of persons affiliated with the government.10

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(a), the entire process is a careful weighing 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, 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 that an 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.

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 explains the security concern about “foreign contacts and interests” as follows:

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 indicates 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; 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. The mere possession of close family ties with a family member living in Afghanistan is not, as a matter of law, disqualifying under Guideline B. However, if an applicant has a close relationship with even one relative 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.

The nature of a nation’s government, its relationship with the United States, and its human-rights record are relevant in assessing the likelihood that an Applicant’s family members 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, a family member is associated with or dependent upon the government, the country is known to conduct intelligence collection operations against the United States, or the foreign country is associated with a risk of terrorism. The relationship of Afghanistan with the United States places a significant, but not insurmountable, burden of persuasion on Applicant to demonstrate that his relationships with his relatives living in Afghanistan do not pose a security risk. Applicant should not be placed in a position where he might be forced to choose between loyalty to the United States and a desire to assist his relatives living in Afghanistan who might be coerced by terrorists or other governmental entities.

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.”11 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.

While there is no evidence that intelligence operatives or terrorists from Afghanistan seek or have sought classified or economic information from or through Applicant, or his relatives living in Afghanistan, it is not possible to rule out such a future possibility. As demonstrated by his regular contacts with his family, he continues to feel an obligation to them and affection for them. Applicant’s concern for his relatives is a positive character trait that increases his trustworthiness; however, it also increases the concern about potential foreign influence. Department Counsel produced substantial evidence to raise the issue of potential foreign pressure or attempted exploitation.

AG ¶¶ 7(a) and 7(b) apply because of Applicant’s relationships with his relatives who are living in Afghanistan. Applicant communicates with these relatives on a regular basis. There is a rebuttable presumption that a person has ties of affection for, or obligation to, their immediate family members. Applicant has not attempted to rebut this presumption. Given Afghanistan’s fragile security situation, Applicant’s relationships with his relatives living in that country are sufficient to create “a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.”

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

(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.; and

(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.

AG ¶ 8(a) does not apply. Applicant’s current linguistics position could cause him to be placed in a position to choose between the interests of his relatives and those of the United States. However, Applicant has met his burden to establish his “deep and longstanding relationships and loyalties in the U.S.” He moved to the United States in 2000, gained citizenship in 2005, and currently resides in the United States with his family. Additionally, he volunteered to go into harm’s way to serve as a linguist for U.S. forces in Afghanistan on numerous occasions since 2006. He went through multiple counterintelligence screenings before these deployments. He was recognized for his outstanding contributions to the U.S. mission in Afghanistan. The evidence supports that Applicant has longstanding loyalties toward the United States and would resolve any conflict of interest in favor of the United States. AG ¶ 8(b) applies.

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), 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. The circumstances tending to support granting Applicant’s clearance are more significant than the factors weighing towards denying his clearance. I considered the ties he established in this country and his service as a linguist in a hostile environment, thereby demonstrating his longstanding loyalty to this country. Applicant provided sufficient evidence to mitigate the security concerns.

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 security concerns arising under Guideline B, foreign influence.

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.f: 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.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AGs implemented by DOD on June 8, 2017. However, I also considered this case under the previous AGs implemented on September 1, 2006, and my conclusions are the same using either set of AGs. 2 Item 8. 3 See 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). 4 See Stein, Administrative Law, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for 5 Item 2, 3-5, 7. 6 Items 3-5, 7; AE A. 7 Items 3-5, 7; AE A. 8 Items 3-5, 7; AEA. 9 Items 5-1 through 5-24. 10 Item 8. 11 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).