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ISCR Case 16-00113.h1 — CASE

ISCR Case 16-00113.h1granted

Case Headnote

ISCR Case No. 16-00113.h1

grantedSep 13, 2017· Hon. Candace Le'i Garcia· hearing

Summary

A 58-year-old defense contractor with prior military service was granted a security clearance despite concerns raised under Guideline E (Personal Conduct). The primary issue was his wife's illegal immigration status in the United States, which he financially supported. This situation raised disqualifying conditions related to personal conduct.

However, the applicant demonstrated significant mitigating actions. He proactively addressed his wife's immigration situation by hiring an attorney and disclosed her status to both his employer and on his security clearance application. The judge determined that these steps were positive and that the applicant's actions did not constitute a violation of federal law concerning harboring an illegal alien.

Ultimately, the judge found that the applicant had successfully mitigated the personal conduct concerns, leading to the decision to grant his security clearance.

Why the Applicant Prevailed

The applicant took positive steps to address his wife's immigration status, including hiring an immigration attorney.
He disclosed his wife's immigration status to his employer and on his security clearance application.
The applicant's actions did not violate federal law regarding harboring an illegal alien.

Conditions Referenced

Disqualifying

AG ¶ 16(e)raisedPersonal Conduct Creating Vulnerability to Exploitation
AG ¶ 16(g)raisedAssociation with Persons Involved in Criminal Activity

Mitigating

AG ¶ 17(e)appliedPositive Steps to Reduce Vulnerability to Exploitation
AG ¶ 17(g)appliedUnwitting Association with Criminal Activity

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 12, 2016
Answer filedOct 26, 2016
Hearing heldJul 7, 2017
Decision dateSep 13, 2017

Cite For

Mitigation of Personal Conduct Concerns Under Guideline E
Proactive Measures in Addressing Immigration Issues
Disclosure of Foreign National Relationships in Security Clearance Applications

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the personal conduct security concern related to his wife's immigration status. The applicant was granted eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant’s wife is an illegal resident of the United States and Applicant financially supports her.	For Applicant	Questionable Judgment General	—	Admitted	(e) personal conduct or concealment creating vulnerability to exploitation (g) association with persons involved in criminal activity	(e) positive steps to reduce vulnerability to exploitation (g) association was unwitting, has ceased, or casts no doubt	Claimed Other

Descriptive standardized rendering of a decided public case (Guideline E). 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. 16-00113 ) Applicant for Security Clearance )

For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se

9/13/2017 ______________

STATEMENT OF CASE

______________

GARCIA, Candace Le’i, Administrative Judge:

Applicant mitigated the personal conduct security concern. Eligibility for access to classified information is granted.

Statement of the Case

On September 12, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing a single security concern under Guideline E (personal conduct). The action was taken under Executive Order (Exec. Or.) 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 responded to the SOR on October 26, 2016, and requested a hearing before an administrative judge. The case was assigned to me on June 2, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on June 16, 2017, scheduling the hearing for July 7, 2017. I convened the hearing as scheduled.

The Government’s exhibit list and discovery letter were appended to the record as Hearing Exhibits (HE) 1 and 2. Government Exhibits (GE) 1 and 2 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AE) A and B, which were admitted in evidence without objection.

At Applicant’s request and with no objection from the Government, I left the record open until July 21, 2017, for the parties to submit additional documentation. Applicant timely provided documentation, which I marked as AE C and admitted in evidence without objection. DOHA received the hearing transcript (Tr.) on July 14, 2017. I appended to the record as Appellate Exhibit (AE) 1 documents of which I took sua sponte administrative notice, as discussed below.

FINDINGS OF FACT

Applicant admitted the SOR allegation. He is 58 years old. He has worked for his current employer, a defense contractor, since 2007. He obtained a high-school diploma in 1977, and he served honorably in the U.S. Army Reserve from 1984 to 1988. He worked for two previous defense contractors from 2003 until he obtained his current job. He was previously married from 1985 to 2003, from which he has three adult children. He married his current wife in November 2015, and they have two children, ages five and two, who are native-born U.S. citizens. He has held a DOD security clearance since 2008.2

The SOR alleges that Applicant’s wife is an illegal resident of the United States and Applicant financially supports her. The SOR allegation is established by Applicant’s admission.3

Applicant’s wife, age 41, is a citizen of Ghana and held a Ghanaian passport as of January 2015. She immigrated to the United States in 2007 on a work visa. When Applicant met her through a mutual friend in 2009, both she and Applicant were divorced. They began cohabitating in April 2010, had their first child in June 2012, had their second child in September 2014, and married in November 2015.4

Applicant has financially supported his wife since they began cohabitating, though she has held employment in health services on occasion. As of Applicant’s September 2015 interview with an Office of Personnel Management investigator, his wife was unemployed. During that interview, Applicant stated that he believed his wife’s work visa was valid when they began cohabitating, and he did not know the date or reason her visa expired. He further stated that he was working with an immigration attorney to get his wife permanent residency in the United States, her paperwork was pending, and he planned to file for a marriage visa after they married.5

Applicant stated at hearing that when he met his wife, he believed her work visa had expired but her immigration status was pending. He understood from her that her immigration paperwork had to be re-evaluated due to her extenuating circumstances, as her ex-husband initiated the immigration process for her prior to his permanent move back to Ghana between 2007 and 2008. He also understood from her that she had been working with an immigration attorney, though her efforts were constrained by time and money.6

Due to money constraints, Applicant was unable until October 2016 to retain the same immigration attorney that his wife had worked with previously. The attorney filed an I-130 Petition for Alien Relative on behalf of Applicant’s wife. In November 2016, they received a Notice of Action from the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (U.S. CIS), indicating the petition was in process. In January 2017, they received an Approval Notice from DHS U.S. CIS indicating the petition was approved and sent to the Department of State (DOS) National Visa Center for further processing. At hearing, Applicant stated that they had not yet heard from the DOS regarding the status of their processing of his wife’s approved petition. As of July 2017, the immigration attorney indicated that he was in the process of filing an I-485 Application to Register Permanent Residence or Adjust Status on behalf of Applicant’s wife. The attorney further stated that he expected the case to go to immigration court, and that the immigration case of Applicant’s wife had been in administrative proceedings since 2005.7

Applicant stated that he reported his cohabitation with his wife and her immigration status to his employer, and abided by his employer’s guidelines for having a relationship with a foreign national. He listed his wife as a cohabitant and disclosed her foreign citizenship on his January 2015 security clearance application. As previously noted, he discussed his wife’s immigration status during his September 2015 interview. He further discussed his wife’s immigration status in his June 2016 response to the Government’s interrogatories. Applicant stated that his work performance has been exemplary.8 I take administrative notice of section 1324 of Title 8 of the United States Code, a federal statute that makes it a felony crime to harbor an illegal alien. The statute reads, in pertinent part:

§1324. Bringing in and harboring certain aliens

(1) (A) Any person who --

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

shall be punished as provided in subparagraph (B).

(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs --

(ii) in the case of a violation of subparagraph (A) (ii), (iii), (iv), or (v)(ll), be fined under title 18, United States Code, imprisoned not more than 5 years, or both.

I also take administrative notice that the term “harbor,” as used in section 1324 of Title 8 of the U.S. Code and as construed by the United States Court of Appeals, 9th Circuit, means “afford shelter to.”9

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(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 Exec. Or. 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline E, Personal Conduct

The security concern for personal conduct is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

Applicant knew when he met his wife in 2009 that her work visa, granted to her in 2007, had expired. They began cohabitating in April 2010, upon which time Applicant began financially supporting her, and they married in 2015. Since 2009, however, Applicant believed that his wife’s immigration status was pending. He understood from her that her immigration paperwork had to be re-evaluated due to her extenuating circumstances, as her ex-husband initiated the immigration process for her prior to his permanent move back to Ghana between 2007 and 2008. He also understood from her that she had been working with an immigration attorney, though her efforts were constrained by time and money. The record supports a conclusion that Applicant’s actions do not violate section 1324 of Title 8 of the United States Code.

The guideline notes several conditions that could raise security concerns under AG ¶ 16. The following are potentially applicable in this case:

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes:

(1) engaging in activities which, if known, could affect the person's personal, professional, or community standing; and

(g) association with persons involved in criminal activity.

Applicant knew when he met his wife in 2009 that her work visa, granted to her in 2007, had expired. While he believed her immigration status was pending, he knew that she did not have the legal documentation to reside legally in the United States. The evidence is sufficient to raise AG ¶¶ 16(e) and 16(g) as disqualifying conditions.

Conditions that could mitigate the personal conduct security concerns are provided under AG ¶ 17. The following are potentially applicable:

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and

(g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

When Applicant met his wife in 2009, he understood from her that she had been working with an immigration attorney, her immigration status was pending, and her immigration paperwork had to be re-evaluated. Applicant stated that he reported his cohabitation with his wife and her immigration status to his employer, and abided by his employer’s guidelines for having a relationship with a foreign national. He listed his wife as a cohabitant and disclosed her foreign citizenship on his January 2015 security clearance application. He discussed his wife’s immigration status during his September 2015 interview. He further discussed his wife’s immigration status in his June 2016 response to the Government’s interrogatories.

After saving enough money, Applicant retained the same immigration attorney in October 2016 that his wife had worked with previously. As of July 2016, the immigration attorney confirmed that the immigration case of Applicant’s wife had been in administrative proceedings since 2005 and is still pending. Applicant provided documentation to show that they received an Approval Notice from DHS U.S. CIS in January 2017, indicating his wife’s petition was approved and sent to the DOS National Visa Center for further processing. At hearing, Applicant stated that they had not yet heard from the DOS regarding the status of their processing of his wife’s approved petition. AG ¶¶ 17(e) and (g) 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 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 E in my whole-person analysis.

Overall, the record evidence leaves me without questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the personal conduct 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 E: For Applicant

Subparagraph 1.a: 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’s eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Candace Le’i Garcia Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Applicant’s SOR response; Tr. at 18-50; GEs 1-2; AEs A-C. Applicant also indicated that he held a Department of State security clearance as of June 2016. GE 2.

3 Applicant’s SOR response; Tr. at 18-50; GEs 1-2; AEs A-C.

4 Tr. at 18-50; GEs 1-2. 5 Tr. at 18-50; GE 2.

6 Tr. at 18-50.

7 GE 2; AEs A, B, C.

8 Tr. at 18-50. 9 8 U.S.C. §1324 (2017); United States v. Acosta DeEvans, 531 F.2d 428 (9th Cir. 1976). As a general rule, the parties are entitled to know what information an Administrative Judge is relying on in making a decision. There are some narrow exceptions to this general rule: official or administrative notice, and matters known to an agency through its cumulative expertise. ISCR Case No. 99-0454 at 3 (App. Bd. Mar. 21, 2000).