Loading case…

ISCR 16-00280.h1: Guideline B security clearance hearing, granted (2017) · CASE

ISCR Case 16-00280.h1granted

Case headnote

ISCR Case No. 16-00280.h1

grantedMay 12, 2017· Hon. Matthew E. Malone· hearing

Summary

This security clearance decision involved a 39-year-old linguist and defense contractor, with concerns raised under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The Statement of Reasons cited that the applicant's parents, seven siblings, his wife's mother, and two of his wife's sisters are citizens and residents of Iraq. Additionally, the applicant provided approximately $1,000 annually in financial support to his mother.

Disqualifying conditions under Guideline B, specifically AG ¶ 7(a), were initially identified due to these foreign family ties and financial support. However, the judge applied several mitigating conditions, including AG ¶ 8(a), AG ¶ 8(b), and AG ¶ 8(e).

The decision to grant the clearance was based on the applicant's strong ties to the U.S., including his U.S. citizenship and residency since 2008. His history of working in support of U.S. military operations further demonstrated loyalty to U.S. interests. Crucially, the applicant ceased communication with his family in Iraq after receiving the Statement of Reasons, indicating an awareness of and responsiveness to security concerns. Ultimately, the security clearance was GRANTED.

Why the applicant prevailed

The applicant has U.S. citizenship and has lived in the U.S. since 2008, establishing strong ties to the country.
He has a history of working in support of U.S. military operations, demonstrating loyalty to U.S. interests.
The applicant ceased communication with his family in Iraq after receiving the SOR, showing awareness of security concerns.

Conditions referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties
AG ¶ 8(e)appliedPrompt Compliance with Reporting Requirements

Key rule quoted

“The principal purpose of a security clearance decision is to resolve whether it is clearly consistent with the national interest for an applicant to either receive or continue to have access to classified information.”
Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural posture

SOR issuedMay 31, 2016
Answer filed—
Hearing heldDec 27, 2016
Decision dateMay 12, 2017

Cite for

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Ties in Security Clearance Decisions
Consideration of Prior Military Service and Loyalty to U.S. Interests

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 39: “Applicant is 39 years old.”
Held a clearance before: Yes: “In 2009, DOD granted him eligibility for a position of public trust for work as a language instructor in support of conventional and special operations missions.”

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 ties to family members in Iraq and the financial support he provides to his mother did not pose a security risk. The applicant's relationships were deemed unlikely to create a conflict of interest, and his deep ties to the U.S. were acknowledged. Consequently, the applicant was granted a security clearance.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the financial concerns related to the applicant's support for his family in Iraq were mitigated. The applicant's ties to his family and the financial support provided were deemed not to pose a security risk, leading to a decision in favor of granting the security clearance.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) ) [NAME REDACTED] ) ISCR Case No. 16-00280 ) ) ) Applicant for Security Clearance

For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Alan Edmunds, Esq.

05/12/2017 ______________

STATEMENT OF CASE

______________

MALONE, Matthew E., Administrative Judge:

Available information is sufficient to mitigate the security concerns about Applicant’s ties to family members in Iraq and by the financial support he provides for his mother there. His request for a security clearance is granted.

Statement of the Case

On December 15, 2014, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP) to obtain a security clearance required for his employment with a defense contractor. Based on the results of the ensuing background investigation, Department of Defense (DOD) adjudicators could not determine that it is clearly consistent with the national interest for Applicant to have a security clearance.1 On May 31, 2016, DOD issued a Statement of Reasons (SOR) alleging facts that raise security concerns addressed under the adjudicative guideline2 for foreign influence (Guideline B). Applicant timely responded to the SOR (Answer) and requested a decision based solely on the written record. However, Department Counsel for the Defense Office of Hearings and Appeals (DOHA) timely requested a hearing.3

I received this case on December 8, 2016, and convened the requested hearing on December 27, 2016. The parties appeared as scheduled. Department Counsel presented Government Exhibits (Gx.) 1 - 3. Department Counsel also requested that I take administrative notice of certain facts pertaining to Iraq. In support of that request, Department Counsel proffered a six-page memorandum and seven attachments. I granted Department Counsel’s request and admitted the pertinent documents as Hearing Exhibit (Hx.) 1.

Applicant testified and submitted Applicant’s Exhibits (Ax.) A – J. After the hearing, Applicant submitted Ax. K – O. I admitted all of the exhibits without objection. DOHA received a transcript of the hearing (Tr.) on January 4, 2017.

FINDINGS OF FACT

Under Guideline B, the Government alleged that Applicant’s parents, seven siblings, his wife’s mother and his wife’s two sisters are citizens of and reside in Iraq (SOR 1.a); and that Applicant provides his mother with about $1,000 each year in financial support (SOR 1.b). In response to the SOR, Applicant admitted, with explanations, all of the SOR allegations. In addition, I make the following additional findings of fact.

Applicant is 39 years old. He was born, raised, and educated in Iraq, where he received a bachelor’s degree in software engineering. He and his wife, who also was born and raised in Iraq, have been married since June 2005. They have two children, ages 10 and 8. The older child was born in Iraq, the younger in the United States. (Gx. 1)

Applicant received his college degree around the time of the United States invasion of Iraq in 2003. In September 2003, Applicant was hired by a U.S. company to be a linguist and translator embedded with U.S. military units in combat zones. He worked as a Category 1 linguist for the next five years. In 2008, U.S. military authorities approved Applicant’s request to participate in the Special Immigrant Visa program. That decision arose from Applicant’s work for the U.S. military in Iraq. Applicant and his family immigrated to the United States as legal aliens in February 2008. They have lived in the United States since then. Applicant, his wife and their older child became U.S. citizens in May 2013. Applicant and his wife bought a house in the United States in 2010. All of their financial, professional, and personal interests lie in the United States. (Gx. 1; Ax. A; Ax. K; Ax. M; Tr. 27, 39)

Since 2008, Applicant has continued his work as a linguist in support of the U.S. military. In 2009, DOD granted him eligibility for a position of public trust for work as a language instructor in support of conventional and special operations missions. That eligibility was renewed in 2013 and 2014. In February 2015, Applicant returned to Iraq for work as a defense contractor supporting U.S. training of Iraqi military for counter insurgency operations against the Islamic State in the Levant (ISIL). Applicant’s work now requires his eligibility for access to classified information so that he can operate with forward-deployed special operations personnel. Applicant’s wife also works as a defense contractor providing linguistic services at a stateside U.S. military facility. (Gx. 1; Ax. A; Tr. 20 - 21, 57 - 58)

Applicant has twice completed counter-intelligence (CI) screenings as a prerequisite to his work with U.S. military units. In March 2009, after initially finding a counter-intelligence risk due to incomplete information, the Army determined that Applicant’s background did not conflict with the work for which he was being considered. One fact that Applicant reported was that he and his family were threatened with physical harm because he was helping the U.S. military. This fact was confirmed by American military sources. Again, in February 2015, the Army examined Applicant’s background, including the financial support he provided his mother, and allowed him to deploy to Iraq for his current work. The information in the more recent CI screening was virtually the same as the first screening. (Gx. 2; Gx. 3)

Applicant’s parents and his wife’s father are elderly and retired. Applicant’s mother has medical problems but does not have enough money to obtain the care she needs. After leaving Iraq in 2008, Applicant has provided her roughly $1,000 each year for medical expenses as they arise. Applicant and his wife each have two sisters. All of whom are housewives in Iraq. Applicant has five brothers, one of whom has moved to the United States using a visa sponsored by Applicant. That brother works as a cameraman and is in the process of applying for U.S. citizenship. Applicant’s other brothers live near their parents and work in various non-government jobs. No one in Applicant’s or his wife’s families have any official connection to the Iraqi government. Before 2003, Applicant’s brothers and father served in the Iraqi army as required of all male Iraqi citizens. They did not stay in the military any longer than their minimum required conscription. Applicant never had to serve in the Army because he was studying at an Iraqi university. (Gx. 2; Gx. 3; Tr. 11, 26 – 31, 42 - 56)

Until recently, Applicant had regular contact with his mother and his siblings. However, he stopped communicating with them after receiving the SOR and realizing that there may be a security problem. Applicant has not returned to Iraq to visit any of his friends or relatives since 2008. Applicant’s wife returned once in 2010 after her mother died. No one in his family knows what he does for a living. Applicant lives in U.S. military quarters and has no contact with Iraqi family or friends when he deploys to Iraq. (Tr. 11, 27 – 29, 31, 53) Applicant’s work with military units before he immigrated to the United States drew extensive praise from several sources. His military commanders and others with whom he worked held Applicant in high regard for his commitment to the missions assigned to the units with whom he worked, and he has received several expressions of gratitude and recognition. This trend has continued in his current employment. (Ax. B; Ax. C)

To assess properly the security significance of these facts within the adjudicative guidelines at issue, I have taken administrative notice of certain facts regarding Iraq. Among the most pertinent of these facts are that Iraq's newly and freely elected government has been unable, without assistance from the U.S. military, to quell violence that has engulfed parts of Iraq, fueled and perpetrated, initially by Al-Qaeda terrorists, as well as Sunni insurgents and Shiite militias, and more recently by ISIL. As a result, some parts of Iraq remain wholly unstable. Even the city of Baghdad is still subject to random acts of sectarian violence. Nonetheless, the Iraqi government remains aligned with the United States in its efforts to improve the ability of Iraqi military and police forces to combat ISIL and protect the Iraqi populous. Iraq also remains committed to advancing a democratic form of government that is accountable to its people. (Hx. 1)

POLICIES

Each security clearance decision must be a fair, impartial, and commonsense determination based on examination of all available relevant and material information,4 and consideration of the pertinent criteria and adjudication policy in the adjudicative guidelines (AG). Decisions must also reflect consideration of the factors listed in ¶ 2(a) of the guidelines. Commonly referred to as the “whole-person” concept, those factors are:

(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.

The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an applicant. However, administrative judges should follow specific applicable guidelines whenever it possible to measure a case against them as they represent policy guidance governing the grant or denial of access to classified information. The principal purpose of a security clearance decision is to resolve whether it is clearly consistent with the national interest5 for an applicant to either receive or continue to have access to classified information. The Government bears the initial burden of producing admissible information on which it based the preliminary decision to deny or revoke a security clearance for an applicant. Additionally, the Government must be able to prove controverted facts alleged in the SOR. If the Government meets its burden, it then falls to the applicant to refute, extenuate or mitigate the Government’s case. Because no one has a “right” to a security clearance, an applicant bears a heavy burden of persuasion.6 A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or her own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government.7

ANALYSIS

Foreign Influence

Available information shows Applicant’s parents, siblings, and members of his wife’s family are citizens of and live in Iraq. One of Applicant’s brothers is still an Iraqi citizen but now lives with Applicant as a legal immigrant now seeking U.S. citizenship. This information presents the following security concern expressed at 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.

More specifically, these facts support application of the disqualifying condition at AG ¶ 7(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. Available information shows that large parts of Iraq remain unstable and beset by sectarian violence. The presence of Applicant’s family members presents a heightened risk that Applicant could be pressured or coerced to act contrary to U.S. interests. Balanced against this is the applicability of the following AG ¶ 8 mitigating conditions:

(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;

(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; and

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country.

No one in Applicant’s or his wife’s families in Iraq have any association with the Iraqi government or its military. Their parents are retired from non-government jobs, and their siblings and their spouses lead routine middle class lives there. Two CI screenings of the same facts and circumstances presented here found that there is no conflict between Applicant’s Iraqi relationships and his work for the U.S. military at home or abroad. Those conclusions are bolstered by the information about his performance while embedded with combat forces in Iraq before he immigrated to the United States in 2008. Further, Applicant has no property or financial interests in Iraq. He and his family are permanently entrenched as American citizens whose livelihood has been built on their work for and commitment to the U.S. military. Applicant always has been candid and forthcoming about his personal ties to Iraqi citizens and about all aspects of his background. He is cognizant of the security concerns related to someone in his position, so much so that he stopped communicating with his family after receiving the SOR.

All of the foregoing supports application of the above-named mitigating conditions. I conclude it is also sufficient to mitigate the security concerns under this guideline.

I also evaluated this record in the context of the whole-person factors listed in AG ¶ 2(a). From 2003 to 2008, Applicant worked in support of U.S. interests, often at great personal risk to him and his family. For that work, the United States government approved Applicant’s request for Special Immigrant Visas for him and his family. Applicant continued that work after arriving in the United States in 2008. A recent CI screening of the same information reviewed in a 2009 CI screening served as the basis to approve his return to Iraq in 2015 to support ongoing U.S. missions in a hostile environment. Additionally, Applicant already has been deemed eligible for a position of trust regarding sensitive information since 2009. Information from current and former military associates and civilian co-workers is uniform in its support for Applicant’s character and suitability for clearance. All of the foregoing far outweighs security concerns about his family ties in Iraq. A fair and commonsense assessment of this record resolves any remaining doubts about Applicant’s suitability for a security clearance.

FORMAL FINDINGS

Formal findings 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 F: FOR APPLICANT

Subparagraphs 1.a – 1.b: For Applicant

CONCLUSION

In light of all of the foregoing, it is clearly consistent with the national interest for Applicant to have access to classified information. Applicant’s request for a security clearance is granted.

_____________________ MATTHEW E. MALONE Administrative Judge

FOOTNOTES

1 Required by Executive Order 10865, as amended, and by DOD Directive 5220.6 (Directive), as amended. 2 The Department of Defense implemented the adjudicative guidelines on September 1, 2006. These guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006). 3 Directive, E3.1.7. 4 See Directive. 6.3. 5 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 6 See Egan, 484 U.S. at 528, 531. 7 See Egan; AG ¶ 2(b).