CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-00371.h1 — CASE

ISCR Case 16-00371.h1denied

Case Headnote

ISCR Case No. 16-00371.h1

deniedAug 3, 2017· Hon. Juan J. Rivera· hearing

Summary

A 30-year-old federal contractor employee was denied eligibility for a public trust position under Guideline E (Personal Conduct). The denial stemmed from concerns regarding her marriage to and cohabitation with an illegal alien from Mexico since 2012.

The Statement of Reasons specifically alleged that the applicant was married to and residing with an illegal alien. This raised disqualifying conditions under Adjudicative Guidelines paragraphs 16(c), 16(e), and 16(g), which address personal conduct that may raise security concerns.

Despite the application of mitigating conditions under paragraphs 17(c), 17(d), and 17(e), the judge denied the application. The denial was based on the applicant's failure to provide sufficient evidence to mitigate trustworthiness concerns. Her cohabitation with an individual in violation of U.S. immigration laws raised questions about her reliability and judgment, demonstrating a disregard for U.S. law.

Why the Applicant Was Denied

Applicant failed to provide evidence to mitigate trustworthiness concerns related to her marriage to an illegal alien.
Her cohabitation with an illegal alien raises questions about her reliability and judgment.
The applicant's actions demonstrate a disregard for U.S. law.

Conditions Referenced

Disqualifying

AG ¶ 16(c)raisedCredible Adverse Information
AG ¶ 16(e)raisedPersonal Conduct Creating Vulnerability
AG ¶ 16(g)raisedAssociation with Persons Involved in Criminal Activity

Mitigating

AG ¶ 17(c)rejectedMinor Offense or Unlikely to RecurThe applicant's conduct is not considered minor and raises significant concerns.
AG ¶ 17(d)rejectedAcknowledgment and CounselingThe applicant did not demonstrate any positive steps to mitigate her situation.
AG ¶ 17(e)rejectedPositive Steps to Reduce VulnerabilityThe applicant's relationship with an illegal alien does not eliminate her vulnerability.

Key Rule Quoted

“Once a concern arises regarding an Applicant’s eligibility for a position of trust, there is a strong presumption against the grant or renewal of eligibility for such position.”

Procedural Posture

SOR issuedJun 15, 2016
Answer filedJun 30, 2016Applicant admitted the SOR allegation.
Hearing heldAug 3, 2017Decision based on written record.
Decision dateNot specified

Cite For

Trustworthiness Concerns Related to Personal Conduct Under Guideline E
Impact of Cohabitation with an Illegal Alien on Eligibility for Public Trust Positions
Presumption Against Granting Eligibility When Concerns Arise.

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: denied

The judge found against the applicant on the personal conduct concerns related to her marriage to an illegal alien. The applicant admitted to the allegations but failed to provide sufficient evidence to mitigate the trustworthiness concerns raised by her relationship and lack of concern for U.S. law. Consequently, her eligibility for a position of public trust was denied.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant is married to an illegal alien from Mexico with whom she has been residing since 2012.	Against Applicant	Association with Persons in Criminal Activity	—	Admitted	(c) credible adverse information across areas supporting a whole-person concern (e) personal conduct or concealment creating vulnerability to exploitation (g) association with persons involved in criminal activity	—	—

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: ) ) ) ADP Case No. 16-00371 ) ) Applicant for Public Trust Position

For Government: Andrew H. Henderson, Esq., Department Counsel For Applicant: Pro se

08/03/2017 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Applicant failed to submit sufficient evidence to mitigate the Guideline E (personal conduct) trustworthiness concerns raised by her marriage and cohabitation with an illegal alien and her lack of concern for U.S. law. Eligibility to hold a position of public trust is denied.

Statement of the Case

Applicant submitted an electronic questionnaire (Application) requesting eligibility for a position of trust on August 28, 2015. After reviewing it and the information gathered during a background investigation, on June 15, 2016, the Department of Defense (DoD) issued Applicant a Statement of Reasons (SOR) listing trustworthiness concerns under Guideline E.

Applicant answered the SOR on June 30, 2016, admitting the SOR allegation. She submitted no additional statements or documents, and requested a decision based on the written record in lieu of a hearing. A copy of the Government’s file of relevant material (FORM), outlining the evidence prompting the security concerns, was provided to Applicant by letter, dated August 10, 2016. Applicant received the FORM on August 17, 2016. She was allowed 30 days to submit any objections to the FORM and to provide material to refute, extenuate, and mitigate the concerns. Applicant did not respond to the FORM. The case was assigned to me on June 27, 2017.

Procedural Issue

In the FORM, Department Counsel advised Applicant that the FORM included her unauthenticated summary of interview with a government background investigator from October 6, 2015. (FORM, Item 3) Applicant was informed she could object to the summary of her interview and it would not be admitted or considered by me, or that she could make corrections, additions, deletions, and update the document to make it accurate. Applicant was informed that her failure to respond to the FORM or to raise any objections could be construed as a waiver and the proposed FORM evidence would be considered by me. Applicant did not respond to the FORM. I admitted the FORM with its proffered evidence, and considered it.

FINDINGS OF FACT

In her SOR answer, Applicant admitted that she is married to an illegal alien from Mexico with whom she has been residing since 2012 (SOR ¶ 1.a). Her admission is incorporated herein as a finding of fact. After a thorough review of the FORM evidence, I make the following additional findings of fact:

Applicant is a 30-year-old employee of a federal contractor. She graduated from high school in 2004, completed some college work without earning a degree, and then received training at a vocational-technical school in 2015. Her employment history shows that she has been working since about 2004, sometimes part-time while studying, and sometimes holding two jobs at the same time. A federal contractor hired Applicant in October 2015. She requires eligibility for a position of public trust for her current job. This is her first application for a position of public trust.

In Applicant’s 2015 trustworthiness application, she disclosed that she was engaged to be married to a citizen of Mexico, who was residing illegally in the United States and with whom she had been cohabitating since 2012. They have a four-year-old son. Applicant explained that her betrothed’s parents entered the United States illegally when he was about three years old. Her parents-in-law and her husband have resided illegally in the United States since, and they have not applied for U.S. citizenship.

Applicant stated she intended to sponsor her then fiancé (now spouse) citizenship application as soon as they are married. According to Applicant, her fiancé has a U.S. social security number and he has been filing and paying U.S. taxes since 2004. Applicant believes her spouse is a responsible citizen who has no criminal record and maintains little or no contact with other Mexican citizens. (FORM, Item 3, October 2015 interview)

POLICIES

In issuing the SOR, DOD acted under DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); DOD Regulation 5200.2-R, Personnel Security Program (January 1987), as amended (Regulation);1 and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information implemented by DOD on September 1, 2006. The case will be decided under Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines For Determining Eligibility For Access To Classified Information or Eligibility To Hold A Sensitive Position (AG), which are applicable to all adjudicative decisions issued on or after June 8, 2017.

The DOD considers ADP positions to be sensitive positions. For a person to be eligible for sensitive duties, the person’s loyalty, reliability, and trustworthiness must be such that assigning the person to a sensitive position is clearly consistent with the national security interests of the United States. SEAD 4, E(4); SEAD 4, App. A ¶ 1.d. Applicants for ADP positions are entitled to the procedural protections in the Directive before any final unfavorable access determination is made.

When evaluating an applicant’s suitability for a public trust position, the administrative judge must consider the disqualifying and mitigating conditions in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. The administrative judge’s overarching adjudicative goal is a fair, impartial and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

A public trust position decision resolves whether it is clearly consistent with the interest of national security to grant or continue an applicant’s access to sensitive information. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national security interest of the United States to grant or continue his or her access to sensitive information.

Persons with access to sensitive information enter 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 those who must protect national security as their own. The “clearly consistent with the national security interest of the United States” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. Access to sensitive information determinations should err, if they must, on the side of denials. SEAD 4, ¶ E(4); SEAD 4, App. A, ¶¶ 1(d) and 2(b). Eligibility for a public trust position decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing access to sensitive information.

ANALYSIS

Guideline E, Personal Conduct

AG ¶ 15 articulates the trustworthiness concern for personal conduct:

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 is married to a citizen of Mexico, who is an illegal alien in the United States. They have been cohabitating since 2012, and they have a four-year-old son born in the United States of this relationship. Applicant’s spouse is in violation of U.S. immigration laws. Applicant also could be engaging in a felony for violating 8 U.S. Code Section 1324 (“Bringing in and harboring certain aliens - (a) Criminal penalties - (1)(A) Any person who . . . . (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”). Applicant’s actions trigger the applicability of the following disqualifying condition under AG ¶ 16:

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information;

(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.

AG ¶ 17 lists three conditions that could potentially mitigate the personal conduct trustworthiness concerns:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

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

None of the above mitigating conditions fully apply. Applicant’s spouse is in violation of U.S. immigration laws. Applicant’s cohabitation with her spouse may be in violation of 8 U.S. Code, Section 1324, a felony.

Applicant stated in her 2015 trustworthiness Application that she intended to sponsor her husband’s U.S. residency and citizenship applications as soon as they were married. She presented no documentary evidence to show the status of such applications or the legality of her spouse’s residence in the United States.

I note that Applicant has been truthful and candid about her relationship with an illegal alien. Thus, she has reduced or eliminated her vulnerability to exploitation, manipulation, or duress. Notwithstanding, a person who requests eligibility for a position of trust must demonstrate sound judgment, reliability, trustworthiness, and ability to comply with laws, rules, and regulations. Her relationship with an illegal alien demonstrates a disregard for the laws of the United States and casts doubts on her reliability, trustworthiness, and good judgment. Applicant’s evidence is insufficient to mitigate the Guideline E security concerns.

WHOLE PERSON CONCEPT

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, and under the whole-person concept. SEAD 4, App. A, ¶¶ 2(a), 2(d), and 2(f). I have incorporated my comments under Guideline E in my whole-person analysis. Some of these factors were addressed under those guidelines, but some warrant additional comment.

Applicant’s evidence is not sufficient to mitigate the personal conduct concerns. Once a concern arises regarding an Applicant’s eligibility for a position of trust, there is a strong presumption against the grant or renewal of eligibility for such position. Unmitigated concerns about Applicant’s cohabitation with an illegal alien and her disregard for U.S. law leads me to conclude that grant of eligibility for a position of public trust to Applicant is not warranted at this time.

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: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

CONCLUSION

In light of all the circumstances, it is not clearly consistent with the national security interest of the United States to grant eligibility for a position of public trust to Applicant. Eligibility for a position of public trust is denied.

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 ADP cases are adjudicated under the provisions of the Directive. (Deputy Under Secretary of Defense’s Memorandum for the Director, Defense Office of Hearings and Appeals, dated November 19, 2004.)