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ISCR Case 15-08893.h1 — CASE

ISCR Case 15-08893.h1denied

Case Headnote

ISCR Case No. 15-08893.h1

deniedSep 7, 2016· Hon. Jennifer I. Goldstein· hearing

Summary

A 51-year-old naturalized U.S. citizen, originally from Syria, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant had obtained a Syrian passport in 2011 as a security precaution during the Syrian civil war, after being questioned by Syrian militia. He never used the passport and subsequently destroyed it, which mitigated the foreign preference concerns.

However, significant foreign influence concerns remained due to his close family ties in Syria. His father, sister, uncle, and extended family reside in Syria, with his father, sister, and uncle being financially dependent on him. The applicant sends them approximately $2,000 annually and communicates with them weekly or bi-weekly to inquire about his father's health, avoiding political discussions due to monitoring fears.

The denial was based on the applicant's strong family ties, financial support, and regular communication with family in Syria, which were deemed to create a heightened risk of foreign exploitation and potential conflicts of interest with U.S. interests. The applicant did not demonstrate that he would resolve any such conflict in favor of U.S. interests.

Why the Applicant Was Denied

The applicant has significant family ties in Syria, including a father, sister, and uncle, which create a heightened risk of foreign exploitation.
The applicant's financial support for his family in Syria and regular communication with them present potential conflicts of interest with U.S. interests.
The applicant did not demonstrate that he would resolve any conflict of interest in favor of U.S. interests due to his strong ties to family in Syria.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 11(e)appliedPassport Has Been Destroyed

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

Procedural Posture

SOR issuedJan 26, 2016
Answer filedFeb 15, 2016
Hearing heldMay 12, 2016
Decision dateSep 7, 2016

Cite For

Heightened Risk of Foreign Exploitation Due to Family Ties Under Guideline B
Mitigation of Foreign Preference Concerns Through Destruction of a Foreign Passport Under Guideline C
Conflict of Interest Arising From Financial Support to Foreign Family Members Under Guideline B

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 against the applicant on all allegations under Guideline B, citing significant family ties in Syria that create a heightened risk of foreign influence. The applicant's financial support and frequent communication with family members in Syria were deemed to present potential conflicts of interest, leading to the denial of his 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. Home or Property · U.S. Financial Assets Predominant · U.S. Military or Government Service · Community or Civic Involvement · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant’s father, sister, uncle, and extended family members are resident citizens of Syria. His father, sister, and uncle are financially dependent on him.	Against Applicant	Parent in Foreign Country Immediate Family	Syria 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	—	—
2.b	Applicant communicates with them once every week or two, to inquire about his father’s health. They never discuss politics for fear that their conversations might be monitored.	Against Applicant	Parent in Foreign Country Immediate Family	Syria 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	—	—
2.c	Applicant sends them approximately $2,000 per year in financial support. They receive no benefits from the government of Syria.	Against Applicant	Financial Support to Foreign Relative Immediate Family	Syria 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	—	—

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had obtained a Syrian passport in 2011 as a security precaution but later destroyed it, which mitigated the foreign preference concerns. However, the applicant's strong family ties in Syria raised significant foreign influence concerns, leading to the denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant obtained a Syrian passport while in Syria in 2011 at the start of the Syrian civil war as a security precaution, after being questioned by Syrian militia. He has never used it, and has since destroyed it.	For Applicant	Foreign Passport Possession or Use	Admitted	—	(e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Credited Passport Destroyed

Descriptive standardized rendering of a decided public case (Guideline C). 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. 15-08893 ) ) Applicant for Security Clearance )

For Government: Aubrey De Angelis, Esquire, Department Counsel For Applicant: Pro se

September 7, 2016 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant was born and raised in Syria. His father, sister, uncle, and extended family members are all resident citizens of Syria, and he contributes to the financial support of his father, sister, and uncle. In 2011 he was visiting his family in Syria and obtained a Syrian passport, despite becoming a naturalized U.S. citizen in 1994. He has since destroyed his Syrian passport. He mitigated the security concerns under Foreign Preference, but failed to mitigate the Foreign Influence security concerns. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SF 86) on December 3, 2014. On January 26, 2016, the Department of Defense (DoD) issued a Statement of Reasons (SOR) to Applicant, detailing security concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference).The action was taken under Executive Order 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 for Determining Eligibility for Access to Classified Information effective within the Department of Defense on September 1, 2006.

Applicant answered the SOR on February 15, 2016 (Answer), and requested a hearing before an administrative judge. The case was assigned to me on April 11, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on April 11, 2016, scheduling the hearing for May 12, 2016. The hearing was convened as scheduled. The Government offered Hearing Exhibit (HE) I and II; and Exhibits (GE) 1 and 2, which were admitted without objection. Applicant testified on his own behalf and offered three exhibits marked Applicant Exhibit (AE) A through C. AE A through AE C were admitted without objection from Department Counsel. The record was left open for receipt of additional documentation. On June 6, 2016, Applicant presented five exhibits, marked as AE D through AE H. Department Counsel had no objections to AE D through AE H, and they were admitted. The record then closed. DOHA received the transcript of the hearing (Tr.) on May 25, 2016.

PROCEDURAL RULINGS

Department Counsel requested administrative notice of facts concerning Syria. (Tr. 15-16.) Department Counsel provided supporting documents to show detail and context for these facts in the Administrative Notice request. Applicant did not object to me taking administrative notice of all of the facts in those of the documents, set out below. (Tr. 15-16.)

Administrative or official notice is the appropriate type of notice used for administrative proceedings. 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)). Usually administrative notice in ISCR proceedings is accorded to facts that are either well known or from government reports. See Stein, Administrative Law, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice).

FINDINGS OF FACT

Applicant is a 51-year-old employee of a defense contractor, where he has worked for more than 13 years. He is single and has no children. Applicant admitted all of the factual allegations set forth in the SOR, with explanations. Applicant’s admissions are incorporated in the following findings. (Answer; GE 1; Tr. 22, 29, 55.)

Applicant was born and raised in Syria. He left Syria in 1985, at the age of 19, to join four of his brothers who had previously relocated to the United States. He also wanted to attend college in the United States. He graduated from an American university with a bachelor’s degree in 1988. He became a naturalized U.S. citizen in 1994. (GE 1; Tr. 22, 28.)

Applicant is the youngest of eight children. His mother is deceased. His father is 97 years old, retired from a wholesale produce business, and lives in Syria with Applicant’s only sister, a 65-year-old pharmacist. His father and sister are Syrian citizens. His father is bed ridden and does not leave their residence. His sister has two children, a 27-year-old niece who works as a private pharmacist, and a 23-year-old nephew who is studying pharmacy in a private college. They are not nor have ever been affiliated with the government or military in Syria. Applicant communicates with them once every week or two, to inquire about his father’s health.1 They never discuss politics for fear that their conversations might be monitored. Applicant’s foreign family members are not aware of the nature of Applicant’s work. Applicant sends them approximately $2,000 per year in financial support. They receive no benefits from the government of Syria. All of Applicant’s brothers are U.S. citizens and residents. Applicant testified he has 27 immediate family members in the United States, all but one are U.S. citizens. (GE 1; GE 2; AE C; Tr. 40, 57-59.)

Applicant also has extended family members in Syria. His paternal uncle is 85 years old. He is a retired truck driver and is in poor health. Applicant sends him approximately $100 per month, through his sister, for financial support. Applicant talks to his uncle by phone approximately once per month. Applicant also has maternal uncles and cousins, but has no contact with them outside of social networking applications. (GE 2; AE C; Tr. 36, 38, 60.)

From 2008 to 2014, Applicant had a joint bank account with his sister in Syria. It was closed in 2014. Currently, there is no functioning banking system in Syria. Applicant either gives money directly to his sister when she visits the United States, or he gives it to someone that is traveling to Lebanon and his sister receives it there. Applicant’s sister, who was sponsored by her U.S. citizen son, was recently approved for permanent residency status in the United States and is in the process of moving to the United States. (GE 2; Tr. 48-50, 61-63.)

Applicant last visited his family in Syria in 2011. The civil war in Syria had just started and militia members were visible on the streets. During that visit, Applicant was stopped by a militia member as part of a random identification check. He only had a U.S. passport to present. As a result, he was forced to pay a bribe. After that incident, and while still in Syria, Applicant made a “hasty decision” to obtain a Syrian passport for protection. (Tr. 25.) It was issued two days later. The Syrian passport was valid from November 2011 to November 2017. He has never used the Syrian passport and has not returned to Syria since that trip. He feels it is too dangerous to travel to Syria. On June 5, 2016, he presented documentation showing that he has destroyed his Syrian passport. (GE 2; AE B; AE C; AE D; AE H; Tr. 42-43.) Applicant testified he has no property or retirement benefits in Syria. He has never voted in Syria. He has voted in every U.S. election since becoming a U.S. citizen. Further, he has assets totaling $1.8 million in the United States. He testified he is deeply rooted in the United States. He supports charities here. He has retirement accounts and multiple brokerage accounts in the United States. When he travels internationally, it is to Latin American countries to pursue his passion for tango dancing. (Tr. 46-51.)

Applicant is a valued employee. His performance reviews reflect he either meets or exceeds expectations in all of his objectives. His manger indicated Applicant is a high performer and a valued team member. His coworkers recognize him for diligently following procedures and the law. He is known to have excellent moral character. (AE A; AE E; AE F; AE G.)

I took administrative notice of the facts set forth in Department Counsel’s request concerning Syria, which are incorporated herein by reference. Of particular significance are the poor human rights situation including the regime’s use of chemical weapons; the civil war between the Socialist Ba’ath Party and the Syrian opposition; the foreign combatant present in Syria including Iranian elements, Hezballah fighters, Islamic extremists, and al Qaida-linked elements; and the Islamic State control of large amounts of territory in the north and east of Syria. The U.S. Department of State warns citizens against traveling to Syria. Syria is designated by the U.S. Department of State as a state sponsor of terrorism.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions (DCs) and mitigating conditions (MCs), 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, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context 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 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. Likewise, I have avoided drawing 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, “[t]he 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7 of Executive Order 10865 provides: “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”

A person applying for access to classified information seeks to enter 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.

ANALYSIS

Guideline C, Foreign Preference

The security concern relating to the guideline for Foreign Preference is set out in AG ¶ 9:

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.

The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following is potentially applicable in this case:

(a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to:

(1) possession of a current foreign passport.

Applicant is a dual citizen of the United States and Syria. He chose to exercise his Syrian citizenship when he obtained a Syrian passport in 2011. The evidence is sufficient to raise the above disqualifying conditions. Conditions that could mitigate foreign preference security concerns are described under AG ¶ 11. One is applicable:

(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.

Applicant obtained his Syrian passport while in Syria in 2011 at the start of the Syrian civil war as a security precaution, after being questioned by Syrian militia. He has never used it, and has since destroyed it. AG ¶ 11(e) provides mitigation.

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. Department Counsel persuasively argued that substantial evidence in this case established two of them:

(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.

Syria has significant internal conflict and terrorism threats that operate openly and are contrary to U.S. interests. Accordingly, Applicant’s substantial and close family connections in that country have more potential to generate a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion under AG ¶ 7(a).

Applicant’s father, sister, uncle, and extended family members are resident citizens of Syria. His father, sister, and uncle are financially dependent on him. He has an entirely legitimate, serious interest in the welfare of his family members in Syria, creating the potential for conflict of interest under AG ¶ 7(b).

These facts meet the Government’s burden of production by raising both of the aforementioned disqualifying conditions. Applicant’s contacts, relationships, and connections with Syria through his relatives, who are citizens and residing there, shift a heavy burden to him to prove mitigation under applicable Appeal Board precedent.

AG ¶ 8 provides conditions that could mitigate security concerns. Those with potential application in mitigating AG ¶¶ 7(a) and 7(b) are:

(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.;

(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; 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.

Considered in light of the substantial anti-western insurgent and terrorism threats in the region, Applicant did not demonstrate that it is unlikely he could be placed in a position of having to choose between the interests of a foreign individual or government and those of the U.S. due to his family ties there. He has legitimate and appropriately close relationships with family members now living in Syria, and a strong interest in protecting his family members there. His communication and contact with his father, sister, and uncle are neither casual nor infrequent, as he regularly communicates with them. Accordingly, he failed to establish the mitigating conditions set forth in AG ¶¶ 8(a) and 8(c).

The evidence also fails to establish sufficient mitigation under AG ¶ 8(b). Applicant provided some evidence of longstanding relationships and loyalty in the United States. He testified that he has $1.8 million in assets in the United States. He has been here since he was 19 years old and has strong ties to his community, extended family members in the U.S., and loyalty to his chosen nation. He performs well at work. These are factors that weigh in Applicant’s favor. However, his ties to his sister, father, and uncle are equally as strong. He is in frequent contact with them and supports them financially. In this instance, Applicant failed to meet his burden to demonstrate that he would resolve any conflict of interest in favor of the U.S. interest. Applicant failed to establish full mitigation.

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 pertinent facts and circumstances surrounding this case. Applicant’s conduct is not in question here. He is a mature and experienced individual, who is seeking to continue providing excellent services to a Government contractor with the enhanced capabilities of a security clearance. His letters of recommendation and performance evaluations contain complimentary opinions concerning his dedication, integrity, and good character.

However, the inherent potential for pressure, coercion, exploitation, or duress deriving from the presence of Applicant’s family members in Syria remains unmitigated at the present time. Placing Applicant in a position wherein it is foreseeable that he could be forced to choose between the security interests of the United States and the interests of his family is the harm to be avoided under Appeal Board precedent. He failed to show that such potential is diminished to any reasonable extent. While his father and uncle are in failing health and his sister is approved for permanent resident status in the United States, they are all currently in Syria and represent a significant risk. His willingness and desire to serve a Government contractor is commendable, but does not justify placing him or his relatives at risk of exploitation due to his access to classified information. His connections to the United States do not outweigh the heightened risks and potential conflicts under these circumstances. Overall, the record evidence creates substantial doubt as to Applicant’s present eligibility and suitability for a security clearance. He failed to meet his burden to mitigate the security concerns arising from foreign influence 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 C: FOR APPLICANT

Subparagraphs 1.a: For Applicant

Paragraph 2, Guideline B: AGAINST APPLICANT

Subparagraphs 1.a through 1.c: 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 eligibility for a security clearance. Eligibility for access to classified information is denied.

Jennifer I. Goldstein Administrative Judge

FOOTNOTES

1 In his post-hearing documentation Applicant indicated he had decreased his contact with his father to monthly phone calls. (AE D.)