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ISCR Case 16-00104.h1 — CASE

ISCR Case 16-00104.h1granted

Case Headnote

ISCR Case No. 16-00104.h1

grantedJul 27, 2017· Hon. Richard A. Cefola· hearing

Summary

A 36-year-old naturalized U.S. citizen and defense contractor, originally from Iran, was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons detailed that the applicant's 73-year-old mother, 67-year-old father, two brothers (ages 39 and 38), and 32-year-old sister are all citizens and residents of Iran.

The applicant's parents, who are retired, and her siblings, who work in fields such as construction design, civil engineering, and architecture, all hold permanent resident status in the United States or have applications pending. Crucially, the judge found no evidence that any of these family members had connections to the Iranian government.

The decision to grant the clearance was based on several mitigating factors. The applicant demonstrated strong ties to the United States, including her marriage and child, and her financial interests were aligned with the U.S. These factors were deemed sufficient to mitigate the foreign influence concerns, leading to the favorable outcome.

Why the Applicant Prevailed

The applicant's parents and siblings have no connections to the Iranian government.
The applicant has established permanent ties in the U.S. through her marriage and child.
The applicant's financial interests are aligned with the United States.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedForeign Contacts
AG ¶ 7(b)raisedConnections to Foreign Persons

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedNo Conflict of Interest

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 14, 2016
Answer filedJun 30, 2016
Hearing heldNov 9, 2016
Decision dateJul 27, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Consideration of Familial Ties in Security Clearance Decisions
Whole-person Concept in Evaluating Security Clearance Eligibility

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 her family ties in Iran. All allegations under Guideline B were ruled in favor of the applicant, leading to the conclusion that granting her security clearance is consistent with the national interest.

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
2.a	Applicant’s 73-year-old mother is a citizen and resident of Iran. She is a retired accountant, having worked with a “telecommunication company.” She also has permanent resident status with the United States. Applicant’s mother has no connection with the Iranian government.	For Applicant	Parent in Foreign Country Immediate Family	Iran	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
2.b	Applicant’s 67-year-old father is a citizen and resident of Iran. He is a retired high school teacher. He also has permanent resident status with the United States. Applicant’s father has no connection with the Iranian government.	For Applicant	Parent in Foreign Country Immediate Family	Iran	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
2.c	Applicant’s two brothers, ages 39 and 38, are citizens and residents of Iran. The eldest brother is “a designer for a construction company,” and the youngest is “a civil engineer.” Applicant has applied for permanent U.S. residence status for both of her brothers. Neither brother has any connection with the Iranian government.	For Applicant	Sibling in Foreign Country Immediate Family	Iran	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
2.d	Applicant’s 32-year-old sister is a citizen and resident of Iran. She is an “architect,” as is her husband. Applicant’s sister and brother-in-law have no connection with the Iranian government.	For Applicant	Sibling in Foreign Country Immediate Family	Iran	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—

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

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-00104 ) ) Applicant for Security Clearance )

For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Leon J. Schachter, Esq., Applicant’s Counsel Sean M. Bigley, Esq., Applicant’s Counsel

July 27, 2017 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On June 14, 2016, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines B and C.1 The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

Applicant answered the SOR on June 30, 2016, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on September 14, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on September 14, 2016, scheduling the hearing for November 9, 2016. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 and 2, which were admitted without objection, but no Hearing Exhibit for Administrative Notice. Applicant testified on his own behalf and called one witness. Applicant presented 15 documents, which I marked Applicant’s Exhibits (AppXs) A through O, and admitted without objection. The record was left open until December 9, 2016, for receipt of additional documentation. DOHA received the transcript of the hearing (TR) on November 17, 2016. On April 22, 2017, Applicant’s Counsel submitted a post-hearing motion noting the new Adjudicative Guidelines, referred to in footnote 1. Applicant’s Counsel argued that application of the new Adjudicative Guidelines vitiated the security concerns of the allegations in Paragraph 1. Department Counsel agreed; and as a result, on April 24, 2017, withdrew the allegations under Guideline C.

FINDINGS OF FACT

Applicant admitted to the remaining allegations in SOR ¶¶ 2.a. through 2.d. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Guideline B – Foreign Influence

Applicant is a 36-year-old employee of a defense contractor. (GX 1 at pages 5 and 16.) She has been employed with the defense contractor since December of 2013. (GX 1 at page 16.) She is married to a U.S. citizen, and has one native-born American child, age six. (TR at page 26 line 18 to page 31 line 21, and GX 1 at pages 24–26 and 30.) She came to the United States in 2003 “on a student visa,” and obtained a Ph. D. from an American university in 2008. (TR at page 26 line 18 to page 27 line 25.) Applicant became a naturalized U.S. citizen in 2011. (GX 1 at page 7, and AppX 18.)

2.a. Applicant’s 73-year-old mother is a citizen and resident of Iran. (AppX B at pages 1–3.) She is a retired accountant, having worked with a “telecommunication company.” (Id.) She also has permanent resident status with the United States. (TR at page 40 lines 18–24.) Applicant’s mother has no connection with the Iranian government. (TR at page 38 line 12 to page 40 line 14.)

2.b. Applicant’s 67-year-old father is a citizen and resident of Iran. (AppX B at pages 3–4.) He is a retired high school teacher. (Id.) He also has permanent resident status with the United States. (TR at page 40 lines 18–24.) Applicant’s father has no connection with the Iranian government. (TR at page 38 line 12 to page 40 line 17.)

2.c. Applicant’s two brothers, ages 39 and 38, are citizens and residents of Iran. (AppX B at pages 5–8.) The eldest brother is “a designer for a construction company,” and the youngest is “a civil engineer.” (TR at page 41 lines 9–14.) Applicant has applied for permanent U.S. residence status for both of her brothers. (TR at page 44 lines 18–23, and AppX B at pages 5–8). Neither brother has any connection with the Iranian government. (TR at page 41 lines 9–14.) 2.d. Applicant’s 32-year-old sister is a citizen and resident of Iran. (AppX B at pages 8–9.) She is an “architect,” as is her husband. (TR at page 41 line 18 to page 42 line 5, and at page 43 line 22 to page 44 line 9.) Applicant’s sister and brother-in-law have no connection with the Iranian government. (Id.)

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 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 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), 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 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who applies 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.

Section 7 of Executive Order (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 relating to the guideline 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. Two 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 and three siblings are citizens and residents of Iran. The evidence is sufficient to raise these disqualifying conditions.

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

(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.

Applicant’s parents have permanent U.S. resident status. She has applied for that status on behalf of her two brothers. Neither Applicant’s parents nor her siblings have any connection with the Iranian government. Her financial and property interests clearly lie with the United States, as evidenced by her financial documentation as to her income, her home ownership, her expected Social Security benefits, and her savings. (AppXs D~K and M.)

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 facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant has a distinguished history of working in the defense industry and is respected by her colleagues. (AppX O.) She performs well at her job. (Id.) While she was born in Iran, she is an American by choice. She has been residing in the United States for the past 13–14 years. Her closest familial ties are with her husband and child, who are American citizens. She can be expected to resolve any conflict of interest in favor of the United States due to her longstanding ties here.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Foreign Influence security concern.

FORMAL FINDINGS

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

Paragraph 2, Guideline B: FOR APPLICANT

Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Subparagraph 2.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.

________________________ Richard A. Cefola Administrative Judge

FOOTNOTES

1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006.