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ISCR Case 14-04438.h1 — CASE

ISCR Case 14-04438.h1granted

Case Headnote

ISCR Case No. 14-04438.h1

grantedMar 8, 2018· Hon. Edward W. Loughran· hearing

Summary

A 36-year-old U.S. citizen, originally from Afghanistan, was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons cited several factors, including the applicant's parents, six siblings, and extended family residing in Afghanistan, and two other siblings living in Canada. The applicant married an Afghan citizen in Afghanistan before their immigration to the U.S. Additionally, the applicant occasionally sends money to his father via Western Union and returned to Afghanistan in 2010 as a linguist for a defense contractor.

Disqualifying conditions AG ¶ 7(a) and AG ¶ 7(b) were raised. However, the judge applied mitigating conditions AG ¶ 8(a) and AG ¶ 8(b). The decision to grant the clearance was based on the applicant's demonstrated strong commitment to U.S. interests and loyalty.

His history of working with the U.S. military in high-risk environments further supported his reliability. Crucially, it was noted that the applicant's family members in Afghanistan currently have no direct connections to the Afghan government.

Why the Applicant Prevailed

The applicant demonstrated a strong commitment to U.S. interests and loyalty to the United States.
He has a history of working with the U.S. military in high-risk environments, which supports his reliability.
The applicant's family members in Afghanistan do not currently have connections to the Afghan government.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Loyalty to the U.S.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJan 21, 2015
Answer filedFeb 13, 2015Applicant elected to proceed without a hearing.
Hearing held—Decided on the written record.
Decision dateMar 8, 2018

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Loyalty and Service to the U.S. in Security Clearance Cases
Consideration of Family Ties in Assessing Security Risks

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 foreign influence security concerns related to his family ties in Afghanistan. Despite the potential risks associated with his foreign contacts, the applicant demonstrated a strong commitment to the United States and a history of service that contributed to a favorable decision for 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 · 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’s parents, six of his siblings, and some extended family members are citizens and residents of Afghanistan.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Unknown	(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.	Claimed Deep U.S. Ties
1.b	Applicant married an Afghan citizen in Afghanistan before they immigrated to the United States.	For Applicant	Spouse Dual or Foreign Citizen Immediate Family	Afghanistan HEIGHTENED RISK	Unknown	(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.	Claimed Deep U.S. Ties
1.c	Applicant has eight siblings.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Unknown	(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.	Claimed Deep U.S. Ties
1.d	Two of his siblings are citizens and residents of Canada.	For Applicant	Sibling in Foreign Country Immediate Family	Canada	Unknown	(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.	Claimed Deep U.S. Ties
1.e	Applicant sometimes sends money to his father via Western Union.	For Applicant	Financial Support to Foreign Relative Immediate Family	Afghanistan HEIGHTENED RISK	Unknown	(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.	Claimed Deep U.S. Ties
1.f	Applicant returned to Afghanistan in 2010 as a linguist for a defense contractor.	For Applicant	Unspecified Foreign Relationship Other	Afghanistan HEIGHTENED RISK	Unknown	(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.	Claimed Deep U.S. Ties
1.g	Applicant’s family members currently have no direct connection to the government of Afghanistan.	For Applicant	Unspecified Foreign Relationship Other	Afghanistan HEIGHTENED RISK	Unknown	(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.	Claimed Deep U.S. Ties

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. 14-04438 ) Applicant for Security Clearance )

For Government: Ray T. Blank, Jr., Esq., Department Counsel For Applicant: Pro se

03/08/2018 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant mitigated the foreign influence security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On January 21, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B, foreign influence. Applicant responded to the SOR on February 13, 2015, and elected to have the case decided on the written record in lieu of a hearing.

The Government’s written case was submitted on September 12, 2016. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on October 1, 2016. He responded to the FORM with a letter that I have marked Applicant’s Exhibit (AE) A. The case was assigned to me on October 1, 2017. The Government exhibits included in the FORM and AE A are admitted in evidence without objection. Department Counsel requested that I take administrative notice of certain facts about Afghanistan. Applicant did not object, and the request is granted. The facts are summarized in the written request and will not be repeated verbatim in this decision. Of particular note is that the risk of terrorist activities in Afghanistan remains extremely high. No section of Afghanistan is safe or immune from violence, and the potential exists throughout the country for hostile acts, either targeted or random, against U.S. and other Western nationals at any time. The country’s human rights record remains poor.

FINDINGS OF FACT

Applicant is a 36-year-old employee of a defense contractor. He was born in Afghanistan to Afghan parents. He spent part of his youth with his family in Pakistan as refugees during the conflict with the Soviet Union. His family returned to Afghanistan where Applicant attended a medical university. He worked with the U.S. military in Afghanistan as a linguist for a defense contractor from 2005 to 2007. Because of his work with the military, he was eligible for a special immigrant visa. He immigrated to the United States in 2007, and he became a U.S. citizen in 2013.1

Applicant has eight siblings. His parents, six of his siblings, and some extended family members are citizens and residents of Afghanistan. Two of his siblings are citizens and residents of Canada. His parents are in their 70s. His father worked for the Afghan government for about ten years. He left that job more than 30 years ago.2

Applicant married an Afghan citizen in Afghanistan before they immigrated to the United States. They have two children. Their older child was born in Afghanistan, and their younger child was born in the United States. Applicant’s wife is now a U.S. citizen. They separated in 2013 after a domestic incident. Their current status is unknown.3

Applicant returned to Afghanistan in 2010 as a linguist for a defense contractor. He worked in Afghanistan until 2012, when he returned to the United States. He returned to Afghanistan again in 2014 to work as a linguist for a defense contractor. It is unclear how long he remained in Afghanistan, but he was either still in Afghanistan or had returned when he responded to the FORM in October 2016.4

Applicant periodically contacts his family in Afghanistan when he is in the United States. He sometimes sends money to his father via Western Union. None of his family members currently have any direct connection to the government of Afghanistan.5 Applicant stated that he would immediately report any contact by a foreign government, intelligence or security service, or terrorist organization, or any attempt to blackmail or coerce him. He received a certificate of appreciation for his “dedicated work in support of the efforts of the United States Military.”6 He professed his undivided loyalty to the United States:

My loyalty to the flag of The United States of America is beyond questioning. Certainly working in Afghanistan alongside [the] world’s best Army is not free of danger and possible loss [of] life. But the pride and dignity of being an American is much higher than thinking of dangers. My love and commitment to the flag and people of the United States is undivided and eternal. During all these years of working and living with our elite military personnel, I have learned to respect, appreciate, and serve in the best way possible.7

POLICIES

This case is adjudicated 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), which became effective on June 8, 2017.

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 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 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.” 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.” The applicant 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 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).

ANALYSIS

Guideline B, Foreign Influence

The security concern 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. The following 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, six of his siblings, and some extended family members are citizens and residents of Afghanistan. His father worked for the Afghan government more than 30 years ago. The potential for terrorist violence against U.S. interests and citizens remains extremely high in Afghanistan, and it continues to have human rights problems. Applicant’s foreign contacts create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. AG ¶¶ 7(a) and 7(b) have been raised by the evidence.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable:

(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; and

(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.

I considered the totality of Applicant’s ties to Afghanistan. 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.8

The distinctions between friendly and unfriendly governments must be made with caution. Relations between nations can shift, sometimes dramatically and unexpectedly. 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. 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. 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 operations against the United States, or the foreign country is associated with a risk of terrorism.

Applicant is a loyal U.S. citizen who has worked overseas under dangerous conditions in support of the national defense. He stated that he would immediately report any contact by a foreign government, intelligence or security service, or terrorist organization, or any attempt to blackmail or coerce him. The Appeal Board has stated that such a statement, standing alone, is of limited value, unless there is record evidence that the applicant has acted in a similar manner in the past in comparable circumstances, or that the applicant has a previous track record of complying with security regulations and procedures in the context of dangerous, high-risk circumstances in which he made a significant contribution to the national security.9 In ISCR Case No. 05-03846 at 6 (App. Bd. Nov. 14, 2006), the Appeal Board discussed this issue as follows:

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 the purposes of refuting, mitigating, or extenuating the security concerns raised by that applicant’s more immediate disqualifying conduct or circumstances. See, e.g., ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005); ISCR Case No. 02-10113 at 5 (App. Bd. Mar. 25, 2005); ISCR Case No. 03-10955 at 2-3 (App. Bd. May 30, 2006). 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. See, e.g., ISCR Case No. 04-12363 at 2 (App. Bd. July 14, 2006). 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.

I find that Applicant can be expected to resolve any potential conflict of interest in favor of the United States. AG ¶ 8(b) is applicable.

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(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. I have incorporated my comments under Guideline B in my whole-person analysis.

Applicant’s work with the U.S. military in Afghanistan earned him a special immigrant visa. He returned to Afghanistan several times since his immigration to work with the U.S. military. The Appeal Board has held that “an applicant’s proven record of action in defense of the United States is very important and can lead to a favorable result for an applicant in a Guideline B case.”10 The complicated state of affairs in Afghanistan places a significant burden of persuasion on Applicant to demonstrate that his foreign family members do not pose an unacceptable security risk. He has met that burden.

Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the foreign influence 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: For Applicant

Subparagraphs 1.a-1.g: For Applicant

CONCLUSION

It is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Items 4-7, 9. 2 Items 2, 4-7, 9; AE A. 3 Items 2, 4-7, 9. 4 Items 2, 4, 5. 5 Items 2, 5; AE A. 6 Items 6-8. 7 AE A. 8 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 9 ISCR Case 07-06030 at 3-4 (App. Bd. June 19, 2008). 10 ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007).