CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-00367.h1 — CASE

ISCR Case 16-00367.h1granted

Case Headnote

ISCR Case No. 16-00367.h1

grantedOct 2, 2017· Hon. Richard A. Cefola· hearing

Summary

A 29-year-old linguist for a defense contractor was granted a security clearance despite concerns under Guideline B (Foreign Influence) related to family members in Afghanistan. The Statement of Reasons detailed several foreign ties. The applicant's father is an Afghan citizen and resident, retired from an Afghan Ministry in May 2016, and receives periodic financial support from the applicant ($200-$500). He is currently awaiting a U.S. State Department interview for immigration to the United States.

Other family members include a stepmother and a younger sister who are U.S. residents with green cards, and a brother-in-law working for a U.S. IT corporation. An older sister lives in Afghanistan, teaching at a private school with no government affiliation. The applicant also has an unemployed older brother seeking a linguist position with the U.S. Army in Afghanistan, and a younger brother studying in Germany. An uncle, employed by the Afghan National Directorate of Security, has minimal contact with the applicant, limited to two courtesy phone calls annually.

The judge ultimately granted the clearance, finding that the applicant's strong ties to the U.S. and the minimal influence of his foreign relatives mitigated the concerns. Key factors included the father's pending U.S. immigration application, the sister's employment at a private school, and the applicant's distinguished service history with the U.S. Armed Forces, which demonstrated loyalty to the United States.

Why the Applicant Prevailed

Applicant's father is applying for immigration to the U.S., reducing foreign influence.
Applicant's sister works for a private school in Afghanistan, minimizing ties to the Afghan government.
Applicant has a distinguished history of service with the U.S. Armed Forces, indicating loyalty to the U.S.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons Unlikely to Create Conflict
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 23, 2016
Answer filedJun 15, 2016
Hearing heldDec 1, 2016
Decision dateOct 2, 2017

Cite For

Mitigation of Foreign Influence Under Guideline B
Importance of U.S. Ties in Security Clearance Decisions
Consideration of Family Immigration Status in Mitigating Foreign Influence Concerns

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 his family ties in Afghanistan. Despite having family members in Afghanistan, the applicant's strong ties to the United States and the nature of his relationships were deemed unlikely to create a conflict of interest. Therefore, 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. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s father is a citizen and resident of Afghanistan. He was employed by an “Afghan Ministry,” but retired in May of 2016. Applicant’s father received a onetime retirement payment from the Afghan government, is unemployed, and, in part, is supported by Applicant. Periodically, Applicant sends his father between $200~$500. He has applied to immigrate to the United States, as evidenced by U.S. State Department documentation, and is currently awaiting a subject interview by the State Department.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(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.	—
1.b	Applicant’s stepmother is a citizen of Afghanistan, but resides in the United States. This is evidenced by her “green card,” and her “Social Security” card. She is not employed by the Afghan government, but rather works for a municipality in the United States.	For Applicant	Spouse Dual or Foreign Citizen Immediate Family	Afghanistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(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.	—
1.c	Applicant has two sisters. The oldest sister is an elementary teacher with a private school in Kabul, Afghanistan, that has no association with the Afghanistan government. She is unmarried, and lives with Applicant’s father. Applicant’s younger sister, and her husband, live in the United States, as evidenced by their “green cards,” and Applicant’s brother-in-law works for a U.S. IT corporation. This brother-in-law never worked for the Afghan Ministry of Defense, as alleged, but rather for a U.S. Government–funded project.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan 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	(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.	—
1.d	Applicant has two brothers. The oldest is unemployed, has applied for a job to become a linguist with the U.S. Army in Afghanistan. Applicant’s youngest brother is a student, currently living in Germany, as evidenced by his German residency card.	For Applicant	Sibling in Foreign Country Immediate Family	Germany	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(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.	—
1.e–1.f	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—
1.g	Applicant’s uncle is a citizen and resident of Afghanistan. He is employed by the Afghan National Directorate of Security. He has little contact with this uncle, only twice a year, a courtesy phone call during a twice a year Moslem holiday. They do not discuss their respective employment.	For Applicant	Extended Family in Foreign Country Extended Family GOVT-AFFILIATED	Afghanistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(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. 16-00367 ) ) Applicant for Security Clearance )

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

October 2, 2017 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On May 23, 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 Guideline B.2 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 15, 2016, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on November 28, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on November 28, 2016, scheduling the hearing for December 1, 2016. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 5, which were admitted without objection, and Hearing Exhibit (HX) I for Administrative Notice. Applicant testified on his own behalf. Applicant presented 16 documents, which I marked Applicant’s Exhibits (AppXs) A through P. They were admitted without objection. The record was left open until January 30, 2017, for receipt of additional documentation. On January 19, 2017, Applicant offered AppXs Q throughV, which were admitted without objection. DOHA received the transcript of the hearing (TR) on December 13, 2016. The record was closed on January 30, 2017.

PROCEDURAL RULINGS

At the hearing, the Government requested I take administrative notice of certain facts relating to Afghanistan. Department Counsel provided a seven-page summary of the facts, supported by five Government documents pertaining to Afghanistan, identified as HE I. The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact.

FINDINGS OF FACT

Applicant admitted to the allegations in SOR ¶¶ 1.c. and 1.e.~1.g. He denied SOR allegations ¶¶ 1.a., 1.b., and 1.d. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 29-year-old employee of a defense contractor. (GX 1 at page 6.) He has been employed, on and off, with the defense contractor as a linguist since August of 2006. (GX 1 at pages 20–38.)

Guideline B – Foreign Influence

1.a. and 1.g. Applicant’s father is a citizen and resident of Afghanistan. (TR at page 34 line 21 to page 35 line 1.) He was employed by an “Afghan Ministry,” but retired in May of 2016. (TR at page 36 line 17 to page 37 line 3, and AppX Q at page 6.) Applicant’s father received a onetime retirement payment from the Afghan government, is unemployed, and, in part, is supported by Applicant. (TR at page 37 lines 10–19, and at page 60 lines 11–17.) Periodically, Applicant sends his father between $200~$500. (TR at page 60 lines 11–25.) He has applied to immigrate to the United States, as evidenced by U.S. State Department documentation, and is currently awaiting a subject interview by the State Department. (TR at page 57 lines 1–24, and AppX Q.)

1.b. Applicant’s stepmother is a citizen of Afghanistan, but resides in the United States. (TR at page 37 line 20 to page 38 line 8.) This is evidenced by her “green card,” and her “Social Security” card. (TR at page 38 lines 7–15, and AppX Q at page 8.) She is not employed by the Afghan government, but rather works for a municipality in the United States. (TR at page 38 line 16 to page 39 line 4.) 1.c. and 1.e. Applicant has two sisters. The “oldest sister . . . is an elementary teacher with a private school in Kabul, Afghanistan, that has no association with the Afghanistan government.” (TR at page 39 lines 11–22.) She is unmarried, and lives with Applicant’s father. (TR at page 61 lines 15–23.) Applicant’s younger sister, and her husband, live in the United States, as evidenced by their “green cards,” and Applicant’s brother-in-law works for a U.S. IT corporation. (TR at page 39 line 25 to page 40 line 14, and AppX Q at page 9.) This brother-in-law never worked for the Afghan Ministry of Defense, as alleged, but rather “for a U.S. Government–funded project.” (TR at page 44 line 25 to page 44 line 23.)

1.d. Applicant has two brothers. The oldest is unemployed, “has applied for a job to become a linguist with the U.S. Army in Afghanistan.” (TR at page 42 lines 13–24.) Applicant’s youngest brother is a student, currently living in Germany, as evidenced by his German residency card. (TR at page 41 line 12 to page 42 line 13.)

1.g. Applicant’s uncle is a citizen and resident of Afghanistan. He is employed by the Afghan National Directorate of Security. (TR at page 44 line 24 to page 46 line 19.) He has little contact with this uncle, only twice a year, a curtesy phone call during a twice a year Moslem holiday. (Id.) They do not discuss their respective employment. (TR at page 46 lines 9–14.)

Notice

Afghanistan faces a continuing treat from the Taliban insurgency and extremist networks. The border between Afghanistan and Pakistan remains an extremist safe haven providing sanctuary for these groups. The Taliban insurgency continues its attempts to inspire Afghan security personnel to conduct insider attacks as a means to undermine trust between the international coalition and its Afghan partners. A U.S. State Department Travel Warning for Afghanistan remains in effect.

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‘sfather, oldest sister and oldest brother are citizens and residents of Afghanistan. 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 father is awaiting approval for immigration to the United States. His sister works for a private school, and his brother is seeking employment with the U.S. Army in Afghanistan. As such, the Afghan government has little influence over them, and Applicant’s loyalties are clearly with the United States.

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 for the U.S. Armed Forces in Afghanistan, as evidenced by numerous accolades and letters of recommendation. (AppXs D and I.) As such, I am convinced that he can be expected to resolve any conflict of interest in favor of the United States due to his obvious 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 1, Guideline B: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g. 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 national security eligibility and a security clearance. Eligibility for access to classified information is granted.

________________________ Richard A. Cefola Administrative Judge

FOOTNOTES

1 When Applicant was naturalized as a U.S. citizen in July of 2013, he changed first name. (Applicant’s Exhibit I.) 2 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.