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ISCR Case 15-08267.h1 — CASE

ISCR Case 15-08267.h1granted

Case Headnote

ISCR Case No. 15-08267.h1

grantedFeb 28, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 39-year-old naturalized U.S. citizen, originally from Iraq, was granted eligibility for access to classified information despite initial concerns under Guideline B (Foreign Influence). The Statement of Reasons cited the applicant's family ties in Iraq, specifically a sister, two brothers, and parents-in-law who are Iraqi citizens and residents. Additionally, the applicant had maintained contact with a high school friend in Iraq, though that friendship later ended. These conditions raised disqualifying concerns under Adjudicative Guidelines Paragraphs 7(a), 7(b), and 7(d).

However, several mitigating factors were applied, specifically Adjudicative Guidelines Paragraph 8(b). The applicant demonstrated estrangement from his siblings in Iraq, having not spoken to them in over nine years due to family conflicts. While his wife remained close to her parents, the applicant himself spoke to his in-laws only about once a year.

The decision to grant clearance was primarily based on the applicant's strong commitment to U.S. interests, evidenced by his extensive service as a translator for U.S. forces. Credible testimony from military personnel supported his loyalty to the U.S., and he had severed ties with friends and family in Iraq, effectively mitigating potential foreign influence. The judge emphasized the applicant's loyalty and the absence of any conflict of interest.

Why the Applicant Prevailed

The applicant demonstrated a strong commitment to U.S. interests through his service as a translator for U.S. forces.
He has severed ties with friends and family in Iraq, mitigating potential foreign influence.
The applicant's loyalty to the U.S. was supported by credible testimony from military personnel.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons That Create Potential Conflict of Interest
AG ¶ 7(d)notedSharing Living Quarters with Foreign Persons

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties

Key Rule Quoted

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

Procedural Posture

SOR issuedApr 25, 2016
Answer filedMay 27, 2016
Hearing heldFeb 6, 2017
Decision dateFeb 28, 2017

Cite For

Mitigation of Foreign Influence Concerns Due to Estrangement From Foreign Family Members
Importance of Credible Service to U.S. Interests in Security Clearance Decisions
Application of AG ¶ 8(b) in Cases with Strong U.S. Ties and Loyalty

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's foreign influence concerns were mitigated by his deep ties to the United States, including his service as a translator for U.S. forces and his estrangement from foreign family members. The applicant was granted eligibility for access to classified information.

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	Applicant has a sister, two brothers, parents-in-law, and a friend, who are resident citizens of Iraq.	For Applicant	Sibling in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b	Applicant is estranged from his siblings in Iraq as a result of family conflicts and has not spoken to them in over nine years.	For Applicant	Sibling in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.c	He speaks to his in-laws approximately once per year, but his wife remains close to her parents.	For Applicant	In Law in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.d	Applicant maintained contact with a high school friend, who is a citizen and resident of Iraq, but the friendship deteriorated and ended.	For Applicant	Friend in Foreign Country Friend	Iraq HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited 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. 15-08267 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill, Esq., Department Counsel For Applicant: Phillip Stackhouse, Esq.

February 28, 2017 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant is a naturalized citizen of the United States. He has a sister, two brothers, parents-in-law, and a friend, who are resident citizens of Iraq. He is estranged from his siblings in Iraq as a result of family conflicts and has not spoken to them in over nine years. He severed his friendship with his friend in 2015 and has not spoken to him since that time. He speaks to his in-laws approximately once per year, but his wife remains close to her parents. Applicant’s tireless service during armed conflict, as an interpreter with the U.S. forces, demonstrates that he will resolve any potential conflict in favor of the United States. The security concerns raised under Foreign Influence are mitigated. Eligibility for access to classified information is granted.

Statement of the Case

On April 25, 2016, the Department of Defense (DoD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under the guideline for Foreign Influence. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective after September 1, 2006.

Applicant answered the SOR (Answer) on May 27, 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 20, 2016. DOHA issued a notice of hearing on December 20, 2016, scheduling the hearing for February 6, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GE) 1 through 4, which were admitted without objection. The Government also offered information pertaining to Iraq for administrative notice, marked Hearing Exhibit (HE) I. Applicant offered Exhibit (AE) A, which was admitted without objection. Applicant testified and called one witness. DOHA received the transcript of the hearing (Tr.) on February 14, 2017.

FINDINGS OF FACT

Applicant admitted all of the allegations in the SOR. 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 is married to a naturalized U.S. citizen. He has two children, ages 12 and 6. His 6-year-old daughter is a natural born U.S. citizen and his son acquired U.S. citizenship at the time his mother was naturalized. (GE 1; Tr. 57-58.)

Applicant was born in Iraq. He grew up listening to American music and taught himself English listening to Mariah Carey. On April 9, 2003, the United States began military action in Applicant’s neighborhood. Applicant saw a patrolling unit of Marines and volunteered to help them. He translated Arabic into English for them as they interviewed his neighbors. Later that day, the Marines introduced him to their commander, and he was offered a job as a translator for $5 per day. He worked as a translator in Iraq for various U.S. forces from 2003 to 2006, and came under almost daily fire during that time. He still has shrapnel imbedded in his lower left rib as the result of one conflict. (GE 1; GE 4; AE A; Tr. 28-32, 36, 55.)

In 2006 Applicant fled Iraq due to death threats he received from insurgents. He went to Syria, which was Iraq’s only open boarder. He lived in Syria for 17 or 18 months, while he applied for refugee status through the United Nations. He was granted permanent residency in the United States, and moved here in August 2008. He became a naturalized U.S. citizen in September 2014. (GE 3; GE 4; Tr. 28-32, 55-57.) He testified that he and his wife have renounced their Iraqi citizenship, and “completely cut off all - - any things that would tie me to Iraq.” (GE 1; Tr. 66.)

After immigrating to the United States, Applicant has continued his work with the U.S. Forces. He served as a cultural advisor to senior Army officers at two different domestic Army bases. After he was naturalized as a U.S. citizen, he returned to Iraq with the U.S. Army as a contract linguist and spent 23 months deployed there. (GE 1; Tr. 33.) Applicant has a large extended family, which includes seven brothers and two sisters.1 Five of Applicant’s brothers and one sister are U.S. residents. Of his siblings that reside in the United States, two are U.S. citizens and four have legal permanent residency. Their mother is also a U.S. resident. They live within one-square mile of each other and are a close family. (GE 1; GE 2; GE 4; Tr. 68-69.)

Applicant has one sister and two brothers who are residents and citizens in Iraq. A third brother, alleged on the SOR to be a resident and citizen of Iraq, was granted permanent residency status and moved to the United States in 2016. He worked as a senior communication technician for the ministry of communication in Iraq prior to immigrating to the United States. (GE 1; GE 2; GE 4; Tr. 36-42.)

Applicant is estranged from his three siblings that remain in Iraq. He has not spoken to his sister since 1994, after they had a disagreement related to Applicant dating his wife. Applicant has not seen that sister since he left Syria and immigrated to the United States. She is unmarried and cares for the children of their deceased sister. Both of his brothers in Iraq are retired Iraqi colonels. One was an Iraqi Air Force communications officer and one was an infantry officer. They both retired from the Iraqi military in approximately 1999. After Applicant’s father passed away in 1989, tensions mounted between Applicant and these two brothers. Applicant has not spoken to either of them since approximately 2005. He did not discuss their military careers with them. Applicant believes they might receive military retirement pay from the Iraqi government. (GE 1; GE 2; GE 4; Tr. 36-42, 60-64.)

Applicant’s mother-in-law and father-in-law are citizens and residents of Iraq. In 2014 they visited Applicant and his wife in the United States, “because neither me [n]or my wife wanted to go and see them.” Prior to that visit, Applicant had not seen his in- laws since he fled Iraq in 2006. They are both retired civil engineers and are supported by their pensions. Applicant speaks to them approximately “once a year, whenever there’s a celebration” and says hello. His wife is close to her parents. Neither Applicant nor his wife provide his in-laws with financial support. (GE 1; GE 2; GE 4; Tr. 42, 64-65, 67.)

Applicant maintained contact with a high school friend, who is a citizen and resident of Iraq, after moving to the United States. However, the difficulties of maintaining the friendship over the years and geographical distance caused the friendship to deteriorate and eventually end. Applicant has not spoken to this friend since April 2015. “The last message [Applicant] got from him was cursing at [Applicant] for not-be-good-friend [sic].” (GE 1; GE 2; GE 4; Tr. 42-43, 65.) Applicant has reported security incidents to the authorities in the past.2 (Tr. 44.) He testified:

[S]ir, if you cut me [in my] vein right now it’ll bleed white, red and blue. . . I don’t think I was born to stay in Iraq. It was just like, I don’t want to say that God mistakenly, because God never makes mistakes. I was misplaced. I was supposed to be born in the United States. And no one, no power on earth, would make me even take a second thought, or even pause, about choosing between the interests of the United States, or interests of anyone at all. . . .

I know I can be a good asset to the United States Government. And one of the important things also, there's no other country in the world would be a safe refuge to my family, other than the United States. I would do anything I can. I'll go all the nine yards above and beyond to protect the security and safety of the United States.

Like my family, I can't complain just for one of the tons of blessings [like] my kids going in the morning, get in the bus, going to the school and come back, and nothing need to be worry about. Like I don't have to be worr[ied] about that, while in Iraq my wife was pregnant with my first baby, and she received a threat that they will cut her womb and take the baby out and cook it and put it on rice and serve it to me. And I had to run out, whether it was like a false funk [sic], or because they didn't know my wife was a teacher in the university. And then I had to make her quit her job and move to seven different houses between 2003 and 2007, just to avoid getting caught . . . or have one of my -- like my wife getting hurt. So I moved to the States, so I don't have to be worried about someone would place in that position. Plus -- I don't know how to explain the freedom that we have. It's a very new thing for us, and I cannot let that go. (Tr. 46-48.)

Applicant’s witness, a sergeant in the U.S. Army, testified that Applicant served as the personal linguist to a colonel in Iraq in 2016. The witness was the personal driver of the colonel and was asked by that colonel to testify at Applicant’s hearing. He spoke of Applicant’s dedication to the Army and his efforts to go “above and beyond” his role as translator to serve the United States. He testified that Applicant “was key to the success in just about every operation that [their] brigade worked with the Iraqis on.” He relayed that the Applicant had been on multiple combat patrols and placed under mortar fire. Applicant had the colonel’s trust. (Tr. 19-26.)

That colonel also wrote Applicant a letter of recommendation. It indicated that Applicant “is of the highest integrity,” “has sacrificed greatly for his chosen profession,” and “displays unwavering allegiance to our values, the coalition’s mission, and our Nation.” (AE A.) Applicant has been awarded numerous certificates of appreciation and commendation for his work as a translator. (AE A.) Iraq

I have taken administrative notice of the U.S. Government’s pronouncements concerning the state of Iraq, as outlined in HE I, including the following: Iraq faces many challenges fueled by sectarian and ethnic divisions. Numerous terrorist groups are increasingly active throughout Iraq. The Islamic State of Iraq and the Levant (ISIL or Islamic State) controls some of the country’s territory. Threats of kidnapping and violence are high, and the Department of State warns U.S. citizens that all but essential travel to Iraq should be avoided. Additionally, human-rights related problems including disappearances, torture, denial of fair public trial, and limits on freedom of speech and expression have been noted.

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 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(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.

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 clearance 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 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 Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B, Foreign Influence

The security concerns relating to the guideline for Foreign Influence is set out in AG ¶ 6:

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.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are applicable in this case:

(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;

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between te 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; and

(d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.

Applicant’s wife, children, and two siblings are U.S. citizens and reside in the United States. His mother, and four siblings are Iraqi citizens and reside in the United States. His two brothers, one sister, and parents-in-law remain in Iraq. Applicant is estranged from those siblings and has not had contact with them in approximately nine years. He also had a friend in Iraq, although they have not communicated in several years. Due to his wife’s ties to her parents, and the terrorist threats present in Iraq as set out in HE I, a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion is present. Applicant’s parents-in-law’s presence in Iraq creates a potential conflict of interest. The evidence is sufficient to raise the above disqualifying conditions.

AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including:

(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.

Applicant has been placed in the position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S., as a consequence of his decision to serve the United States as a linguist. At great risk to himself and his family, he has repeatedly chosen the United States. The insurgents in Iraq threatened him. His body still contains shrapnel from a wound he received while working as an interpreter for U.S. forces. He had to flee to Syria and abandon his home due to threats to himself and his family. He has reported security incidents to the proper authorities. Subsequently, he moved his family to the United States and they have assimilated into American culture. He is raising his children as Americans. He wishes to serve the United States by further utilizing his unique language and cultural skills, despite periodically placing his life at risk. He is trusted by those with whom he has served, and is considered to be an asset. His honorable history of service to the United States, coupled with the deep relationships he has established here, leaves no question that Applicant can be expected to resolve any conflict of interests in favor of the U.S. interests. The evidence establishing AG ¶ 8(b) mitigates all Foreign Influence concerns.

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. The security concerns under Guideline B do not arise from any questionable conduct by Applicant, but rather circumstances that warrant further analysis. First, there is a significant risk of terrorism and various human rights abuses in Iraq. More importantly for security purposes, terrorists in Iraq are hostile to the United States and actively seek classified information. Terrorists, and even friendly governments, could attempt to use Applicant’s in-laws to obtain such information. Second, he had numerous connections to Iraq before he immigrated to the United States. Following his birth, he spent his formative years there. He was educated in Iraq and maintained contact with a friend from high school even after immigrating to the United States. His estranged brothers and sister also reside there.

Substantial mitigating evidence weighs in favor of granting Applicant a security clearance. He is a mature person, who has lived in the United States since 2008. He is a U.S citizen and has renounced his Iraqi citizenship. His spouse is also a naturalized U.S. citizen, as is one brother and one sister. Four of his other siblings and his mother are legal U.S. permanent residents. In his position as a linguist, he has provided vital and direct support to the U.S. armed forces, sometimes under enemy fire. His service as a translator to U.S. forces from 2003 to 2006 placed Applicant and his family in great peril, but he chose to continue to support U.S. forces despite the dangers from insurgents. Eventually, those threats to himself and his family made him flee Iraq and seek refuge in Syria. After resettling in the United States, he again chose to serve the U.S. forces, first as a cultural advisor at domestic Army bases, and then as an interpreter deployed to Iraq. His ties to the United States are stronger than his ties to his in-laws, siblings, or former friends remaining in Iraq. There is no evidence that he has ever taken any action that could cause potential harm to the United States. He takes his loyalty to the United States seriously. Those soldiers with whom he deployed assess him as loyal, trustworthy, and responsible. There is no derogatory information about him in the record.

The Appeal Board discussed an analogous situation in ISCR Case No. 05-03846 (App. Bd. Nov.14, 2006) 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 purposes of refuting, mitigating, or extenuating the security concerns raised by the 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.

After weighing the disqualifying and mitigating conditions, and all facts and circumstances in the context of the whole-person, I conclude Applicant mitigated the security concerns pertaining to foreign influence. 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 he met his burden to mitigate the security concerns arising under the guidelines for foreign preference, foreign influence, and financial considerations.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: 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.

________________________ Jennifer I. Goldstein Administrative Judge

FOOTNOTES

1 Applicant’s third sister is now deceased. 2 Applicant could not elaborate on the incident as he testified it was classified. (Tr. 44.)