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ISCR Case 16-01435.h1 — CASE

ISCR Case 16-01435.h1denied

Case Headnote

ISCR Case No. 16-01435.h1

deniedApr 26, 2017· Hon. Robert E. Coacher· hearing

Summary

A 60-year-old naturalized U.S. citizen, originally from Iraq, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant maintained close relationships with foreign nationals in Iraq, including a romantic relationship, and provided them with significant financial support. These ties were found to create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion, as well as a potential conflict of interest between his security obligations and his desire to assist these individuals.

Additionally, the applicant provided inaccurate information on his security clearance application regarding the extent of his foreign contacts. This omission was deemed a deliberate act and not a minor offense, raising questions about his reliability and trustworthiness. The applicant failed to produce evidence of mitigation for this misrepresentation.

The judge concluded that the applicant's close relationships, financial support to foreign nationals, and intent to bring them to the U.S. raised significant concerns about his loyalty and potential conflicts of interest. The deliberate provision of false information on his application further contributed to the decision to deny his security clearance.

Why the Applicant Was Denied

The applicant's close relationships with foreign nationals in Iraq created a heightened risk of foreign exploitation and manipulation.
The applicant provided false information on his security clearance application regarding his foreign contacts, which was deemed deliberate and not credible.
The applicant's financial support to foreign nationals and intent to bring them to the U.S. raised significant concerns about his loyalty and potential conflicts of interest.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedForeign Contacts and Interests
AG ¶ 7(b)raisedConnections to Foreign Persons
AG ¶ 16(a)raisedDeliberate Omission or Falsification

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 8, 2016
Answer filedSep 26, 2016
Hearing heldJan 10, 2017
Decision dateApr 26, 2017

Cite For

Heightened Risk of Foreign Exploitation Due to Personal Relationships Under Guideline B
Deliberate Falsification of Information on Security Clearance Applications Under Guideline E
The Importance of National Security Considerations in Adjudicating Security Clearance Cases.

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: denied

The judge found against the applicant on all allegations under Guideline B, citing significant foreign influence concerns due to the applicant's close relationships with individuals in Iraq. The applicant admitted to providing financial support to these individuals, which raised questions about his loyalty and potential for coercion. Ultimately, the judge concluded that the applicant did not mitigate the security concerns, leading to a denial of 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. Children

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant has close relationships with foreign nationals who are citizens and residents of Iraq, which creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.	Against Applicant	Friend in Foreign Country Friend	Iraq HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	Applicant has provided significant financial support to foreign nationals in Iraq, which creates a potential conflict of interest between his obligation to protect classified information and his desire to help these foreign individuals.	Against Applicant	Financial Support to Foreign Relative Financial or Property Interest	Iraq HEIGHTENED RISK	Admitted	(b) connections creating a potential conflict of interest	—	—
1.c	Applicant failed to disclose his close and continuing contact with foreign nationals in his security clearance application, which raises questions about his reliability and trustworthiness.	Against Applicant	Failure to Disclose Foreign Association Other	Iraq HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegations under Guideline E. The applicant admitted to providing false information on his security clearance application regarding his foreign contacts, which the judge deemed deliberate and not credible. The applicant failed to mitigate the concerns raised by this conduct, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant admitted providing inaccurate information on his SCA concerning the extent of his foreign contacts.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Foreign Contacts or Interests	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b	Providing false information on a SCA is not a minor offense. Applicant failed to produce evidence of mitigation.	Against Applicant	Rules Violation at Workplace	—	Unknown	—	—	—

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: ) ) ) ISCR Case No. 16-01435 ) Applicant for Security Clearance )

For Government: Andrea Corrales, Esq., Department Counsel For Applicant: Pro se

04/26/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the security concerns under Guideline B, foreign influence and Guideline E, personal conduct. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On June 8, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence, and Guideline E, personal conduct. DOD CAF acted 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), effective within the DOD on September 1, 2006. Applicant answered the SOR on September 26, 2016. He requested a hearing before an administrative judge. The case was assigned to me on December 21, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 22, 2016, with a hearing date of January 10, 2017. The hearing was convened as scheduled. The Government offered exhibits (GE) 1 through 5, which were admitted into evidence without objection. The Government’s exhibit list was marked as hearing exhibit (HE) I. Its request to take administrative notice of certain facts about Iraq was marked as HE II. Applicant testified and offered exhibits (AE) A through J, which were admitted without objection. The record was held open after the hearing and Applicant produced copies of AE B through J for inclusion in the record, but no additional documents.1 DOHA received the hearing transcript (Tr.) on January 24, 2017.

PROCEDURAL RULINGS

Department Counsel submitted a formal request that I take administrative notice of certain facts relating to Iraq. Applicant did not object and the request was granted. The request and the attached documents were not admitted into evidence but were included in the record as HE II. The facts administratively noticed are set out in the Findings of Fact, below.

FINDINGS OF FACT

In Applicant’s answer to the SOR, he admitted all the SOR allegations. Those admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 60 years old. He was born in Iraq in 1956. In 1974, he and his family fled to Lebanon as refugees. He arrived in the United States in 1976 under refugee status. He became a naturalized U.S. citizen in 1982. He married and had two children who are native-born U.S. citizens. His wife passed away in 2003. He went to high school in Iraq, but did not graduate. He has no significant assets in the United States.2

Applicant worked as a linguist for government contractors supporting U.S. forces in Iraq at various times between 2003 and 2010. He has pictures and letters of support reflecting his assistance to U.S. forces during those times. All his immediate family members reside in the United States, but he has distant cousins who still reside in Iraq. His last contact with these cousins was in 2011.3 At various times in 2005, 2006, 2007, 2011, and 2012 Applicant visited Iraq on personal business not while performing linguist duties. In about 2005, he met a women (XX) in Iraq. He began providing significant financial support to XX and her family. Between 2005 and 2011, he estimated that he provided approximately $30,000 to XX. At some point, he began a romantic relationship with XX. She bore a child who is now seven years old. XX claims Applicant is the father and he does not deny that claim. Applicant stated his intent to marry xx and eventually bring her and the child to the United States. XX lives in Iraq and does not speak English. Applicant communicates with XX and their child on a frequent basis via Skype. He is teaching the child English. He also pays for the child to go to private school. Applicant also admitted to visiting and providing at least $12,000 financial support to another Iraqi family (taxi driver family) he befriended from 2005 to 2009. The members of this family are all residents and citizens of Iraq. Applicant believes providing financial assistance to less fortunate Iraqi families is the right thing to do.4

In his 2015 security clearance application (SCA), Applicant answered “no” to whether he had any close and/or continuing contact with a foreign national, within the last seven years, with whom he is bound to by “affection, influence, common interests, and/or obligation.” In his answer to the SOR, he admitted this statement was false. He also answered “no” in his SCA to whether he had ever provided any financial support to any foreign national. He admitted this answer was false. Applicant testified that he did not consider his contact with XX and the other family “close and/or continuing.” He also did not consider the contacts with these people “foreign” contacts because he was thinking of himself as an Iraqi. Applicant’s explanations are not credible.5

Applicant produced eight letters of recommendation and a certificate of achievement for his outstanding work as a linguist for coalition forces in Iraq during various times from 2004 to 2016. He was relied on by commanders to interact with Iraqi officials. He was trusted in that role and performed in an outstanding manner. His actions led to many successful missions, which contributed to the overall safety and protection of coalition forces. He was commended as a man of loyalty and integrity.6

Iraq

The U.S. Embassy warns that U.S. citizens are at high risk for kidnapping and violence and to avoid all but essential travel to Iraq. The U.S. government considers the potential threat to U.S. government personnel in Iraq to be serious enough to require them to live and work under strict security guidelines. In 2015, the Islamic State of Iraq and Levant (ISIL) remained the greatest terrorist threat globally, maintaining a formidable force in Iraq and Syria.7

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 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, these guidelines are applied 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.” 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, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and 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 that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that 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 ¶ 7: 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. Two 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 close relationship with XX and the taxi driver family, all residents and citizens of Iraq, creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. These same relationships also create a potential conflict of interest between Applicant’s obligation to protect classified information and the desire to help these foreign friends as he has done in the past. AG ¶¶ 7(a) and 7(b) have been raised by the evidence.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8:

(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation.

Applicant has performed admirably on many deployments as a linguist for U.S. forces. However, he has also formed strong personal relationships with two Iraqi families. He admitted having a romantic relationship with XX. He is the father of XX’s child who he supports financially. He goes to Iraq in his personal capacity to be with XX and their child. He also supports the taxi driver’s family with financial aid. Applicant’s actions place him in a position of having to choose between the interests of his Iraqi friends and family over those of the United States. Although Applicant has ties to the United States through his citizenship, his older children who live here, and his work as a linguist, he has no significant assets in the United States and he frequently visits Iraq as a private citizen to be with XX. The contact between Applicant and the two Iraqi families was more than casual and infrequent, particularly with XX and their child. As stated above, the protection of the national security is the paramount consideration and any doubt must be resolved in favor of national security. Because of Applicant’s continuing ties to his Iraqi friends and family, and the nature of the terrorism threats in Iraq, I am unable to find any of the mitigating conditions to be applicable.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security 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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying condition is potentially applicable:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

Applicant admitted providing inaccurate information on his SCA concerning the extent of his foreign contacts. His explanations for doing so are not credible and I find his action deliberate. The record contains sufficient evidence to support application of AG ¶¶ 16(a).

AG ¶ 17 provides conditions that could mitigate security concerns. One may have applicability in this case:

(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.

Providing false information on a SCA is not a minor offense. Applicant failed to produce evidence of mitigation. AG ¶ 17(a) does not apply.

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 the 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.

Applicant provided outstanding service to his country as a linguist while deployed to Iraq on numerous occasions. However, that service must be weighed against the potential threats inherent in his continuing close relationships with two Iraqi families. Applicant has visited Iraq to be with XX and care for their child. Iraq is a dangerous country where the lives of U.S. citizens are not safe with the persistent terrorism threat that ISIL presents. The nature of a nation’s government, its relationship with the United States, and its susceptibility to terrorism are relevant in assessing the likelihood that an applicant’s friends are vulnerable to coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country is susceptible to threats of terrorism. There is no reason to question Applicant’s loyalty and devotion to this country. However, he has not overcome the vulnerability to pressure, coercion, exploitation, and duress created by his close relationship with his friends and family in Iraq. He had significant contact and provided significant financial support to two families in Iraq. His explanation for not listing this information in his SCA was not credible.

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the foreign influence or personal conduct 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: AGAINST APPLICANT Subparagraphs 1.a – 1.c: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a – 2.b: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 At hearing, Applicant offered AE B-J, but after admission requested the documents back so he could provide copies and retain the originals. 2 Tr. at 6, 23, 25; GE 3-5. 3 Tr. at 37, 40; GE 3-5; AE A-J. 4 Tr. at 27-32, 36, 39, 41-42, 44, 46-50, 52, 66-67; GE 3-4. 5 Tr. at 31-36; GE 2. 6 AE B-J. 7 HE II.