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ISCR Case 16-01066.h1 — CASE

ISCR Case 16-01066.h1granted

Case Headnote

ISCR Case No. 16-01066.h1

grantedJul 1, 2016· Hon. Edward W. Loughran· hearing

Summary

A 38-year-old U.S. citizen, originally from Iraq, was granted a security clearance after addressing concerns under Guidelines B (Foreign Influence) and C (Foreign Preference). The Statement of Reasons cited that his parents and seven siblings are Iraqi citizens and residents, and he sent his father approximately $7,000 in 2011 and 2012 for medical expenses and a brother's wedding. Additionally, one of his brothers serves in the Iraqi military, though no other family members have connections to the Iraqi government or terrorist organizations. A further concern was his previous possession of an Iraqi passport while a U.S. citizen.

The applicant successfully mitigated these concerns. He demonstrated strong allegiance to the United States, supported by his military service and commendations from U.S. military personnel. He also expressed a clear willingness to report any coercive attempts against him.

The applicant's Iraqi passport was expired, and he confirmed he had no intention of renewing it. Based on his credible testimony and evidence of loyalty, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated a strong allegiance to the United States and a willingness to report any coercive attempts against him.
He provided credible evidence of his loyalty through his military service and commendations from U.S. military personnel.
The applicant's Iraqi passport was expired, and he had no intention of renewing it.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 10(a)raisedPossession of a Current Foreign Passport

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties
AG ¶ 11(e)appliedExpired Passport with No Intent to Renew

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 16, 2016
Answer filedAug 22, 2016
Hearing heldFeb 22, 2017
Decision dateMar 30, 2017

Cite For

Mitigation of Foreign Influence Concerns Due to Strong U.S. Ties
Mitigation of Foreign Preference Concerns with Expired Passport
Credibility of Applicant's Loyalty Demonstrated Through Military Service and Commendations.

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 and foreign preference security concerns. The applicant's ties to Iraq, including family members, were acknowledged but deemed manageable, leading to a decision to grant eligibility for access to classified information.

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. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s parents and seven siblings are citizens and residents of Iraq.	For Applicant	Parent in Foreign Country Immediate Family	Iraq 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	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
1.b	Applicant sent his father about $7,000 in 2011 and 2012 to help with medical expenses and his brother’s wedding.	For Applicant	Financial Support to Foreign Relative Immediate Family	Iraq 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	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
1.c	One of Applicant’s brothers is in the Iraqi military.	For Applicant	Sibling in Foreign Country Immediate Family GOVT-AFFILIATED	Iraq 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	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
1.d	None of his other family members have any immediate connection to the Iraqi government or any terrorist organization.	For Applicant	Unspecified Foreign Relationship Other	Iraq 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	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed 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 the foreign preference security concerns. The applicant possessed an Iraqi passport while being a U.S. citizen, but the passport has expired, and he does not intend to renew it. The judge concluded that the applicant's actions and intentions demonstrated a commitment to the United States, leading to a favorable decision.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
2.a	Applicant possessed an Iraqi passport while a U.S. citizen.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	(e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Documented Other

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. 16-01066 ) Applicant for Security Clearance )

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se

05/09/2017 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant mitigated the foreign influence and foreign preference security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On June 16, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines B (foreign influence) and C (foreign preference). The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.

Applicant responded to the SOR on August 22, 2016, and requested a hearing before an administrative judge. The case was assigned to me on February 21, 2017. After coordinating with the parties, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 21, 2017, scheduling the hearing for February 22, 2017. The hearing was convened as scheduled. DOHA received the hearing transcript (Tr.) on February 28, 2017.

Procedural and Evidentiary Rulings

Evidence

Government Exhibits (GE) 1 through 4 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AE) A and B, which were admitted without objection. The record was held open for Applicant to submit additional information. He did not submit any additional evidence.

Request for Administrative Notice

Department Counsel requested that I take administrative notice of certain facts about Iraq. The request was not admitted in evidence but was included in the record as Hearing Exhibit (HE) I. Applicant did not object, and I have taken administrative notice of the facts contained in HE I. The most pertinent facts are that Iraq is a constitutional parliamentary republic. Iraq’s sectarian and ethnic divisions are fueling a major challenge to Iraq’s stability. There is a surge of terrorist activity in Iraq, primarily as a result of the actions of the Islamic State of Iraq and the Levant (ISIL). U.S. citizens are at high risk of kidnapping and violence. Terrorists committed the overwhelming number of serious human rights abuses in the country.

FINDINGS OF FACT

Applicant is a 38-year-old employee of a defense contractor. He has worked for his current employer since March 2015. He is applying for a security clearance for the first time. He has a degree from a technical institute in Iraq. He has never married, and he has no children.1

Applicant was born in Iraq. He served in the Iraqi military from 2004 to 2006. He worked as a linguist in support of U.S. forces in Iraq from 2006 through 2009. The U.S. military assisted him in obtaining a visa, and he immigrated to the United States in 2009. He became a U.S. citizen in 2014.2

Applicant had an Iraqi passport, which he used to travel to the United States. He did not use the passport after obtaining U.S. citizenship. The passport expired in 2014. He does not intend to obtain another Iraqi passport.3

Applicant’s parents and seven siblings are citizens and residents of Iraq. His father and one of his brothers are lawyers. His father worked for an Iraqi government agency that was unrelated to defense or intelligence. His father is retired, but his brother still works for the agency. Applicant sent his father about $7,000 in 2011 and 2012 to help with medical expenses and his brother’s wedding. One of Applicant’s brothers is in the Iraqi military. None of his other family members have any immediate connection to the Iraqi government or any terrorist organization.4

Applicant has worked as a linguist for U.S. forces in Iraq since March 2015. He is not permitted to visit his family or tell them anything about his job when he is working in Iraq. They live about 300 miles from where Applicant is working. He contacts them periodically by telephone. One of his brothers knows Applicant is in Iraq because they met when both their units were involved in the same mission. Applicant does not believe his brother told the rest of the family that he was in Iraq.5

Applicant does not have any foreign assets. He credibly stated that his allegiance lies with the United States, and that he would report any attempt to use his family in Iraq against him.6

Applicant was wounded during a combat mission with U.S. forces in 2007. He submitted commendatory material and letters from U.S. military personnel in Iraq. Three different battalion commanders wrote that Applicant’s performance of duties was exemplary during more than 100 combat missions over an 18-month period in 2006 and 2007.7 In 2006, a U.S. military officer recommended Applicant for immigration to the United States and wrote:

Throughout the [last] seven months, [Applicant] was continuously placed in a position of danger, enduring mental and physical stress. In addition, [Applicant] was placed in a position of confidence with access to operational plans in the near future as well as privy to all information gathered, as he was the conduit for all of it.

[Applicant] has proven himself to be a completely loyal and trustworthy individual, whom I have patrolled with on more than one hundred occasions. He does his job with a sense of duty and responsibility for his country that all members of [the military unit] admire. [Applicant] has conducted himself with honor and has been readily accepted by the [military unit] as one of them.8

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. 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 the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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 access to classified information will be resolved in favor of national security.”

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.” The applicant has the ultimate burden of persuasion to obtain a favorable security 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of 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 for foreign influence is set out in 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.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are potentially applicable in this case:

(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; 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 sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information.

Applicant’s parents and siblings are citizens and residents of Iraq. The potential for terrorist violence against U.S. interests and citizens exists in Iraq. Iraq also continues to have human rights problems. Applicant’s foreign relatives create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. AG ¶¶ 7(a) and 7(b) are applicable.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable:

(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.; and (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.

I considered the totality of Applicant’s ties to Iraq. Guideline B is not limited to countries hostile to the United States. The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.9

The distinctions between friendly and unfriendly governments must be made with caution. Relations between nations can shift, sometimes dramatically and unexpectedly. Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism.

Applicant is a loyal U.S. citizen who has worked overseas under dangerous conditions in support of the national defense. He credibly testified that he would report to security officials any attempt to use his family members against him. The Appeal Board has stated that such testimony, standing alone, is of limited value, unless there is record evidence that the applicant has acted in a similar manner in the past in comparable circumstances, or that the applicant has a previous track record of complying with security regulations and procedures in the context of dangerous, high- risk circumstances in which he made a significant contribution to the national security.10 In ISCR Case No. 05-03846 at 6 (App. Bd. Nov. 14, 2006), the Appeal Board discussed this issue as follows:

As a general rule, Judges are not required to assign an applicant’s prior history of complying with security procedures and regulations significant probative value for the purposes of refuting, mitigating, or extenuating the security concerns raised by that applicant’s more immediate disqualifying conduct or circumstances. See, e.g., ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005); ISCR Case No. 02-10113 at 5 (App. Bd. Mar. 25, 2005); ISCR Case No. 03-10955 at 2-3 (App. Bd. May 30, 2006). However, the Board has recognized an exception to that general rule in Guideline B cases, where the applicant has established by credible, independent evidence that his compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant had made a significant contribution to the national security. See, e.g., ISCR Case No. 04-12363 at 2 (App. Bd. July 14, 2006). The presence of such circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report a foreign power’s attempts at coercion or exploitation.

I find that Applicant can be expected to resolve any potential conflict of interest in favor of the United States. AG ¶ 8(b) is applicable.

Guideline C, Foreign Preference

The security concern 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 be prone to provide information or make decisions that are harmful to the interests of the United States.

The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following are potentially applicable in this case:

(a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to:

(1) possession of a current foreign passport.

Applicant possessed an Iraqi passport while a U.S. citizen. AG ¶ 10(a) is applicable.

Conditions that could mitigate foreign preference security concerns are provided under AG ¶ 11. The following is potentially applicable:

(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.

Applicant’s Iraqi passport is expired, and he does not intend to renew it. AG ¶ 11(e) is applicable.

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(a):

(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 the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines B and C in my whole-person analysis.

Applicant is a loyal U.S. citizen who has worked overseas under dangerous conditions in support of the national defense. He credibly testified that he would report any attempt to use his family members to coerce him to reveal classified information. The Appeal Board has held that “generally, an applicant’s statements, by themselves, as to what he would do in the face of threats by a foreign government or entity are entitled to little weight. On the other hand, an applicant’s proven record of action in defense of the United States is very important and can lead to a favorable result for an applicant in a Guideline B case.”11 The complicated state of affairs in Iraq places a significant burden of persuasion on Applicant to demonstrate that his foreign family members do not pose an unacceptable security risk. He has met that burden.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. 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 section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: For Applicant

Subparagraphs 1.a-1.d: For Applicant Paragraph 2, Guideline C: For Applicant

Subparagraph 2.a: 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.

________________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Tr. at 27-28, 43; GE 1-4. 2 Tr. at 23-24, 27-30, 34-37; GE 1-4. 3 Tr. at 23-26, 41, 47-48; Applicant’s response to SOR; GE 1-4; AE A. 4 Tr. at 27-34, 48-62; Applicant’s response to SOR; GE 1-4. 5 Tr. at 49-51. 6 Tr. at 53, 60-61, 66; Applicant’s response to SOR; GE 1, 4. 7 Tr. at 39, 43-46, 66-67; GE 1, 4; AE B. 8 AE B. 9 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 10 ISCR Case 07-06030 at 3-4 (App. Bd. June 19, 2008). 11 ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007).