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ISCR Case 16-00830.h1 — CASE

ISCR Case 16-00830.h1granted

Case Headnote

ISCR Case No. 16-00830.h1

grantedJun 28, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 29-year-old U.S. citizen, originally from Ukraine, was granted a security clearance despite initial concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). These concerns arose from his family ties in Ukraine and his dual citizenship.

Specifically, the Statement of Reasons noted that his mother and father are Ukrainian citizens and residents, and he is engaged to a Ukrainian citizen residing in Ukraine. Additionally, the applicant held dual citizenship with the U.S. and Ukraine, having previously used his Ukrainian passport to enter Brazil. However, it was also noted that he had destroyed his Ukrainian passport and formally initiated the process to renounce his Ukrainian citizenship.

The judge determined that the applicant successfully mitigated these concerns. He demonstrated strong ties to the U.S., including ten years of residency, property ownership, and community involvement. The applicant also confirmed he has no assets in Ukraine and no plans to return, further indicating minimal foreign allegiance. His active steps to renounce his Ukrainian citizenship were a key factor in the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant has lived in the U.S. for ten years and has strong ties to the community.
He has no assets or plans to return to Ukraine, indicating minimal foreign allegiance.
The applicant has initiated the process to renounce his Ukrainian citizenship.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to a Foreign Country

Mitigating

AG ¶ 8(b)appliedNo 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 issuedJul 11, 2016
Answer filedSep 16, 2016
Hearing heldFeb 6, 2017Hearing conducted as scheduled.
Decision dateJun 28, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Mitigation of Foreign Preference Concerns Under Guideline C
Consideration of Strong U.S. Ties in Security Clearance Decisions

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 foreign influence concerns related to his family and fiancée, who are citizens and residents of Ukraine. The applicant's strong ties to the U.S. and his intention to renounce his Ukrainian citizenship contributed to the decision to grant his 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 mother and father are citizens and residents of Ukraine.	For Applicant	Parent in Foreign Country Immediate Family	Ukraine 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	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b	Applicant is engaged to marry a Ukrainian citizen, who resides in Ukraine.	For Applicant	Spouse Dual or Foreign Citizen Immediate Family	Ukraine 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	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties

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

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated foreign preference concerns related to his dual citizenship and use of a foreign passport. The applicant has taken steps to renounce his Ukrainian citizenship and has demonstrated strong ties to the United States, which contributed to the favorable decision.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
2.a(1)	Applicant is a dual citizen of the United States and Ukraine. He exercised his Ukrainian citizenship when he used his Ukrainian passport to enter Brazil.	For Applicant	Foreign Passport Possession or Use	Admitted	—	—	—
2.a(2)	Further, it should be noted that Applicant has destroyed his Ukrainian passport and has formally started the process to renounce his Ukrainian citizenship.	For Applicant	Failure to Renounce or Surrender Foreign Status	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline C). 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. 16-00830 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill, Esq., Department Counsel For Applicant: Cathryn E. Young, Esq.

June 28, 2017 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Based on a review of the pleadings, testimony, and exhibits, I conclude that Applicant mitigated the foreign influence concerns raised by his fiancée, father, and mother, who are citizens and residents in Ukraine. He also mitigated the foreign preference concerns raised by his exercise of Ukrainian citizenship by traveling on his Ukrainian passport. His request for a security clearance is granted.

Statement of the Case

On August 21, 2015, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On July 11, 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

1 I considered the previous Adjudicative Guidelines (AG), effective September 1, 2006, as well as the new 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 September 16, 2016, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on January 17, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on January 17, 2017, scheduling the hearing for February 6, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GE) 1 through 3, which were admitted without objection, and Hearing Exhibit (HE) I for Administrative Notice. Applicant testified on his own behalf. Applicant presented nine documents, which I marked as Applicant’s Exhibits (AE) A through I. Department Counsel had no objections to AE A through AE I, and they were admitted. The record was left open until May 8, 2017, for receipt of additional documentation. On May 8, 2017, Applicant submitted one exhibit, marked AE J. Department Counsel had no objection to AE J, and it was admitted. DOHA received the transcript of the hearing (Tr.) on February 14, 2017.

PROCEDURAL RULINGS

At the hearing, the Government requested I take administrative notice of certain facts relating to Ukraine. Department Counsel provided a five-page summary of the facts, supported by three Government documents pertaining to Ukraine, 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 the allegations in SOR ¶¶ 1.a, 1.b, and 2.a. 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. He has been employed in his current position as an electronic engineer since 2016. He seeks a security clearance for the first time, in connection with a job offer from another employer. He is divorced from his first wife, a natural-born U.S. citizen, and has no children. (Tr. 25).

Applicant was born in Ukraine. He first visited the United States in 2006, when he studied here for six months on a student exchange program. He returned to the United States in May 2007 to attend college. He studied first at a community college, and then a university. He graduated in 2011 with a Master’s of Science in Electrical Engineering. (AE G.) During his schooling, he decided that he loved the opportunities available in the United States and he applied to become a naturalized citizen. He became a U.S. citizen on January 9, 2013. He does not plan to return to Ukraine to live, as there are no job opportunities and “no future” for him there. (Tr. 17-22, 43.) Applicant owns two properties in the United States. He owns a duplex in which he resides, and he leases the other unit in that building to tenants. He is also rehabilitating a second property and plans to lease it out when that work is completed. He has a 401K savings plan, invests in U.S. stocks, and has bank accounts in the United States. He estimated his net worth is between $200,000 and $300,000, but should increase to approximately $700,000 once the rental unit is completed. He has no assets outside of the United States. He is in good standing on all of his financial accounts listed in the record credit report. (GE 3; AE D; AE E; AE F; Tr. 23-24, 64-65.)

Applicant acquired a U.S. passport, which was issued on January 23, 2014. He continued to possess a valid Ukrainian passport, issued in July 2012 (prior to his naturalization as a U.S. citizen), until it was destroyed in May 2017. (AE J.) Applicant used that passport once in April 2015 when entering Brazil, because visas were not required to travel to Brazil for travelers using Ukrainian passports, but were required for U.S. travelers. This travel occurred prior to his application for a security clearance. Applicant travels internationally frequently, and he has used his U.S. passport for all other travel. Further, in February 2016, Applicant started a lengthy application process to formally renounce his Ukrainian citizenship. He intends to complete that process when the formal procedural steps permit it. (AE A; AE B; AE C; Tr. 44-55, 66.)

Applicant’s mother and father are citizens and residents of Ukraine. They are both 65 years old and retired. They worked the majority of their careers for a privately-owned beer manufacturer. After they both were laid off from that job, his father opened a private transportation business, and his mother worked in Italy as a housekeeper.2 However, they are not currently working. They support themselves by small pensions from the Ukrainian government. Applicant testified they both have been granted visas to permit them to travel to the United States. Applicant speaks to his mother by phone on a weekly basis, and his father annually. His parents visit him in the United States. Neither of his parents are affiliated with the Ukrainian government, and they “literally hate Russia.” (Tr. 26-35, 60- 63, 70-71.)

Applicant is engaged to marry a Ukrainian citizen, who resides in Ukraine. He met her three years ago, while visiting his parents in Ukraine. She runs an on-line clothing store. They communicate by text approximately every other day, and speak by phone once per week. They see each other approximately every three months, at different destinations around the world including Italy, Spain, and Georgia. His fiancée’s parents are deceased, although she has ties to her grandmother and aunt, who are also citizens and residents of Ukraine. In July 2016, Applicant applied for a fiancée visa for her to join him in the United States. They intend to marry shortly after her visa is granted. She hopes to apply to become a naturalized U.S. citizen as soon as she is able. (AE I; Tr. 36-43, 47, 62.)

Applicant presented five letters of recommendation from colleagues and friends. He is known as an exceptional team member that always exceeds expectations. He is known as a person of “exceptional character, superior problem solving skills and creativity, and a high degree of professionalism.” One letter highlighted Applicant’s philanthropic and community spirit in helping to raise funds for autism awareness. His former roommate wrote Applicant “was always interested in American culture, loved American Holidays and tried his best to assimilate and become a productive part of this country.” (AE H.)

Ukraine is a republic with a semi-presidential political system. The eastern part of the country is controlled by Russian-backed separatists. Russia occupies Crimea. The United States strongly condemns the Russian military occupation of Crimea and Russia’s ongoing efforts to destabilize eastern Ukraine. Significant human rights violations have resulted due to the ongoing conflict. Individuals, including U.S. citizens, have been threatened, detained, or kidnapped for hours or days after being stopped at separatist checkpoints in eastern Ukraine. (HE I.)

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 useful 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 the 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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 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 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 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 mother, father, and fiancée are citizens and residents of Ukraine. His ties to his family and fiancée are strong. It is possible that his connections to them could create a potential conflict of interest between Applicant’s obligation to protect sensitive information and his desire to help his loved ones in Ukraine. AG ¶¶ 7(a) requires substantial evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government. I am satisfied that the activities of insurgent groups and Russian forces, including the risks of kidnapping and the human rights violations in the Ukraine, are sufficient to establish the “heightened risk” in AG ¶ 7(a) and the potential conflict of interest in AG ¶ 7(b). The evidence is sufficient to raise the above disqualifying conditions.

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

(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 has lived in the United States for ten years, which equates to one-third of his life. He has adopted American customs, holidays, and an entrepreneurial spirit. He engages in philanthropic endeavors in his local community. He owns property in his local community and is developing a real estate business there. He has investments in U.S. stocks. He sees no future for himself in Ukraine. He has no assets in Ukraine. His parents and fiancée are the only ties he has to Ukraine. He hopes that his fiancée will join him in the U.S. soon. In this case, there is no concern about a potential conflict of interest, because the Applicant’s deep and longstanding relationships and loyalties in the United States show that he would resolve any conflict of interest in favor of the U.S. interest.

Guideline C, Foreign Preference

The security concern relating to the guideline for Foreign Preference is set out in AG ¶ 9:

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual's judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself; the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship. The guideline notes several conditions that could raise security concerns under AG ¶ 10:

(a) applying for and/or acquiring citizenship in any other country;

(b) failure to report, or fully disclose when required, to an appropriate security official, the possession of a passport or identity card issued by any country other than the United States;

(d) participation in foreign activities, including but not limited to:

(1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and

(2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests;

(e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law; and

(f) an act of expatriation from the United States such as declaration of intent to renounce U.S. citizenship, whether through words or actions.

Applicant is a dual citizen of the United States and Ukraine. He exercised his Ukrainian citizenship when he used his Ukrainian passport to enter Brazil. However, possession and use of a foreign passport does not, in and of itself, raise a security concern under these guidelines. Further, it should be noted that Applicant has destroyed his Ukrainian passport and has formally started the process to renounce his Ukrainian citizenship. The evidence is insufficient to raise the above disqualifying conditions.

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 Guidelines B and C 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 employment history and is respected by those that submitted letters on his behalf. He performs well at his job. While he was born in Ukraine, he is an American by choice. He has been residing in the United States for the past 10 years. He has developed strong bonds to his community here. All of his assets are in the United States. He can be expected to resolve any conflict of interest in favor of the United States due to his 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 and Foreign Preference security concerns.

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

Paragraph 2, Guideline C: FOR APPLICANT

Subparagraph 2.a(1): For Applicant Subparagraph 2.a(2): 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.

________________________ Jennifer Goldstein Administrative Judge

FOOTNOTES

AG, effective June 8, 2017. Both attorneys were notified by email dated June 12, 2017, that the new AG would be applied to this case. They were given the opportunity to reopen the record to submit additional documentation. Neither party chose to exercise that option. The email correspondence is marked HE II. 2 Applicant’s father also completed compulsory military service in the early 1980sby joining the local police force for a brief period of time. (Tr. 28-29.)