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ISCR Case 08-02189.h1 — CASE

ISCR Case 08-02189.h1granted

Case Headnote

ISCR Case No. 08-02189.h1

grantedJan 14, 2009· Hon. Roger C. Wesley· hearing

Summary

A 35-year-old naturalized U.S. citizen, originally from Iran and working as an engineering planner, was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons cited several relatives who are citizens and residents of Iran, including a maternal aunt employed as an accounting manager for an Iranian government department, and an uncle retired from the same department. Additionally, the applicant had five paternal aunts residing in Iran.

Disqualifying conditions B2 and B1 were raised, noting the applicant's statements to a DoD investigator in March 2007. He indicated potential vulnerability to blackmail if his parents or brothers were in danger while traveling in Iran, and stated he had not renounced his dual citizenship due to possible threats to his aunts and uncles in Iran.

However, the judge applied mitigating conditions B3, B4, and B5, ultimately granting the clearance. The decision highlighted the applicant's strong ties to the U.S., demonstrated through military service and community involvement. Furthermore, he maintained minimal contact with his relatives in Iran, and his parents and brothers have no ties to the Iranian government and have not traveled to Iran recently, indicating a lack of divided loyalties.

Why the Applicant Prevailed

The applicant demonstrated strong ties to the U.S. through his military service and community involvement.
He had minimal contact with relatives in Iran, indicating a lack of divided loyalties.
The applicant's parents and brothers have no ties to the Iranian government and have not traveled to Iran recently.

Conditions Referenced

Disqualifying

B2raisedForeign Contacts and Interests
B1raisedDual Citizenship

Mitigating

B3appliedContact with Foreign Relatives Is Minimal
B4appliedStrong Ties to the U.S.
B5appliedNo Financial Interests in Iran

Key Rule Quoted

“A decision to grant or continue an Applicant's request for security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest.”

Procedural Posture

SOR issuedJun 25, 2008
Answer filedAug 11, 2008
Hearing heldDec 2, 2008
Decision dateJan 14, 2009

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Minimal Contact with Foreign Relatives
Significance of Strong U.S. Ties in Security Clearance Determinations

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 in favor of the applicant regarding foreign influence concerns, determining that the applicant's ties to family members in Iran did not pose a significant risk to national security. The applicant's lack of close relationships with these relatives and his strong ties to the United States were key factors in the decision to grant the 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 · U.S. Financial Assets Predominant · Community or Civic Involvement · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	a maternal aunt and uncle who are citizens and residents of Iran	For Applicant	Extended Family in Foreign Country Extended Family	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties
1.b	a maternal aunt who is employed as an accounting manager for an Iranian government department	For Applicant	Unspecified Foreign Relationship Other GOVT-AFFILIATED	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties
1.c	an uncle who is retired from the same Iranian government department	For Applicant	Unspecified Foreign Relationship Other GOVT-AFFILIATED	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties
1.d	five paternal aunts who are citizens and residents of Iran	For Applicant	Extended Family in Foreign Country Extended Family	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties
1.e	told a DoD investigator in a March 2007 interview that the only time he could be vulnerable to blackmail or coercion by foreign interests would occur if his parents and/or brothers were in danger while they were traveling in Iran	For Applicant	Unspecified Foreign Relationship Other	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties
1.f	told the same DoD investigator that he had not renounced his dual citizenship with Iran due to possible threats to his aunts and uncles currently living in Iran	For Applicant	Unspecified Foreign Relationship Other	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Deep U.S. Ties

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. 08-02189 SSN: ----------------- ) ) Applicant for Security Clearance )

For Government: Jeff A. Nagel, Esquire, Department Counsel For Applicant: Pro Se

January 14, 2009 ______________

STATEMENT OF CASE

______________

WESLEY, Roger C., Administrative Judge:

History of Case

On June 25, 2008, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an administrative judge to determine whether clearance should be granted, continued, denied or revoked.

Applicant responded to the SOR on August 11, 2008 and requested a hearing. The case was assigned to me on August 26, 2008, and was scheduled for hearing on December 2, 2008. A hearing was held on December 2, 2008, for the purpose of considering whether it would be clearly consistent with the national interest to grant, continue, deny, or revoke Applicant’s security clearance. At hearing, the Government's case consisted of two exhibits; Applicant relied on one witness (himself) and one exhibit. The transcript (R.T.) was received on December 15, 2008. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility to access classified information is granted.

Besides its two exhibits, the Government requested administrative notice of 17 documents: Background Note: Iran, U.S. Department of State (March 2008); Country Specific Information, Iran, U.S. Department of State (July 2008); Travel Warning, Iran, U.S. Department of State (January 2008); Country Reports on Human Rights Practices - 2007, Iran, U.S. Department of State (March 2008); Country Reports on Terrorism, Chapter 3 - State Sponsors of Terrorism Overview, U.S. Department of State (April 2008);Iran: State Sponsors of Terrorism, U.S. Department of State (September 2008); The President of the U.S., Continuation of the National Emergency with Respect to Iran (November 2006); Resident George Bush, Message to the Congress of the U.S. (March 2008); Iran: Nuclear Intentions and Capabilities, National Intelligence Estimate (November 2007); Annual Threat Assessment of the Director of National Intelligence for the Senate Select Committee on Intelligence (February 2008); William J. Burns, Under Sec. For Political Affairs, U.S. Department of State, Testimony Before the Senate Foreign Relations Comm., the Strategic Challenges Posed by Iran (July 2008); U.S. Maintains Pressure on Iran (March 2008); UN Security Council Resolution 103 on Iran’s Nuclear Program, U.S. Department of State (April 2008); Iranian Pleads Guilty to Attempted Exportation of Arms and Money Laundering, U.S. Attorney’s Office (April 2005); New York Man Sentenced for Illegally Exporting Stolen NBC Night Vision Lenses for Delivery to Iran, (August 2005); Singapore Businessman Convicted of Secretly Diverting U.S. Military and Civilian Aircraft Parts to the Islamic Republic of Iran (May 2006); Pennsylvania Company Fined for Export Violations Involving Iran, UAE and Syria (May 2006).

Administrative or official notice is the appropriate type of notice used for administrative proceedings. See ISCR Case No. 05-11292, at 4 n.1 (App. Bd. April 12, 2007); ISCR Case No. 02-24875, at 2 (App. Bd. October 12, 2006)(citing ISCR Case No. 02-18668, at 3 (App. Bd. Feb. 10, 2004)). Administrative notice is appropriate for noticing facts or government reports that are well known. See Stein, Administrative Law, Sec. 25.01 (Bender & Co. 2006). For good cause shown, administrative notice was granted with respect to the above-named background reports addressing the geopolitical situation in Iran. Administrative notice was extended to the documents themselves, consistent with the provisions of Rule 201 of Fed. R. Evid. This notice did not foreclose Applicant from challenging the accuracy and reliability of the information contained in the reports addressing Iran’s current state. Applicant did not exercise his option of challenging these documents.

Procedural Issues and Rulings

Before the close of the hearing, Applicant requested leave to supplement the record to afford him an opportunity to provide written character endorsements. For good cause shown, Applicant was granted seven days to December 8, 2008 to supplement the record. The Government was afforded two days to respond. Within the time permitted, Applicant faxed endorsements from his pastor and his program manager, which were, in turn, faxed to me. These submissions are admitted as Applicant’s exhibits B and C.

Summary of Pleadings

Under Guideline B, Applicant is alleged to have (a) a maternal aunt and uncle who are citizens and residents of Iran, (b) a maternal aunt who is employed as an accounting manager for an Iranian government department, (c) an uncle who is retired from the same Iranian government department, (d) five paternal aunts who are citizens and residents of Iran (e) told a DoD investigator in a March 2007 interview that the only time he could be vulnerable to blackmail or coercion by foreign interests would occur if his parents and/or brothers were in danger while they were traveling in Iran, and (f) told the same DoD investigator that he had no renounced his dual citizenship with Iran doe to possible threats to his aunts and uncles currently living in Iran.

For his answer to the SOR, Applicant admitted all of the allegations in the SOR with explanations. He claimed he has no financial interests of any kind in Iran, and that his parents sold all of their property in Iran and own their own businesses in the U.S. He claimed that neither he nor his parents have any divided loyalties and cites for support his honorable service in the U.S. Navy from 1996 to 2004, which included numerous awards for leadership and merit (receiving an honorable discharge in June 2004). He acknowledged his deep devotion to his parents and brothers and a willingness to give his life for theirs, but cautioned against the unlikelihood he would ever be placed in a life- threatening situation (noting his parents rarely travel to Iran). He professed his love and profound patriotism for the U.S. He claimed he has no Iranian passport; he made no visits to Iran in 24 years, and he had no intention to make any trips to Iran in the future, absent any change in the ruling government in Iran to one friendly to the U.S.

FINDINGS OF FACT

Applicant is a 35-year-old engineering planner for a defense contractor who seeks a security clearance. The allegations covered in the SOR and admitted by Applicant are adopted as relevant and material findings. Additional findings follow.

Applicant’s background

Applicant was born in Iran and immigrated (with his parents at age 11) to the U.S. in 1984 to escape the Iran-Iraq war and seek a better life in the U.S. (R.T., at 51). He enlisted in the Navy in June 1996 (before becoming a U.S. citizen) at the age of 23 (R.T., at 64), and was honorably discharged in 2001. While serving in the Navy he held a confidential security clearance (R.T., at 65). He assures he would do nothing that might jeopardize U.S. interests or his shipmates who could still be in the Navy (R.T., at 68).

Applicant became a naturalized U.S. citizen in December 2006 (R.T., at 64). He completed his undergraduate education at a U.S. university and received an MBA in 2005 (see ex. 1; R.T., at 69-70). Applicant converted to Christianity in 1991 and was baptized 10 years later (R.T., at 44). He is unmarried and has no children (see ex. 1).

Applicant’s has two brothers: one older and one younger who live in the U.S. near applicant’s parents (R.T., at 53). His older brother teaches business classes in a local community college, while his younger brother completed his college studies and works for a U.S. pharmaceutical company (R.T., at 62). Neither have any plans to return to Iran. His parents’ most recent trip to Iran was in 1999 (for a cousin’s wedding). They have no plans to return again, except possibly to attend a funeral or wedding of a family member (R.T., at 54-55). His parents have no ties to the Iranian government (R.T., at 54-55). They have a net worth in excess of $2 million, which is comprised of their home and convalescent homes they own (R.T., at 58-60). Neither his mother nor father have any relationships or ties to the Iranian government, and (like Applicant) are very westernized (R.T., at 56-58). His father did serve in the Iranian military when the Shah was in power (R.T., at 51-52).

Applicant has a maternal aunt and uncle who are citizens and residents of Iran. His uncle is not a blood relative, however, and has limited contact with his family. His aunt is a practicing accountant, and his uncle is retired (R.T., at 38). To the best of his knowledge, none of his aunts and uncles (maternal and paternal) residing in Iran have any ties to the Iranian government (R.T., at 43). Applicant has no strong feelings for either of his maternal aunts or any of his paternal aunts and uncles residing in Iran (R.T., at 39, 47-48). He estimates to have spoken to his maternal aunt and uncle maybe three times in the last 20 years (R.T., at 47). He has not spoken to any of his paternal aunts and uncles within the last 20 years (R.T., at 49-50). He could not identify most of his aunts in a line-up, were he asked to do so (R.T., at 50-51). Applicant believes that his maternal aunt and uncle living in Iran are westernized and are trying to immigrate to New Zealand (R.T., at 38, 45-46).

Since becoming a U.S. citizen, Applicant has regularly voted in U.S. elections (R.T., at 72). He has a savings plan with his employer valued at round $20,000.00. He owns a home and has a net worth between $400,000.00 and $500,000.00 (R.T., at 71- 72) He is a deacon for his church and serves on the board of directors for a management society, and he has served on various employer-related association boards (R.T., at 72-75).

Were Applicant’s parents to return to Iran and encounter trouble with Iranian authorities, he would help them, but never to the extent of jeopardizing U.S. national security interests (R.T., at 76-77). Should any of his aunts or uncles residing in Iran ever be taken hostage by Iranian authorities, he would not feel the same strong emotions he would have for his parents in a similar situation (R.T., at 77-78). He could not recall the circumstances in his clearance interview in which he expressed reservations about renouncing his Iranian citizenship out of concerns for his aunts and uncles residing in Iran (R.T., at 79). Applicant considers himself a loyal U.S. citizen only and accepts he is a dual citizen of Iran because the Iranian government classifies him as an Iranian citizen (R.T., at 79-80). He assured, too, that he does not care what the Iranian government might think about any steps he might take to renounce his Iranian citizenship (R.T., at 79-80). At the same time, he expressed no intention to initiate steps to renounce his Iranian citizenship.

Political and economic background of Iran

According to official U.S. State Department documents, Iran is an Islamic republic that is constitutionally constructed and has a head of state, an elected president and counsel of ministers, a legislative body composed of a 290-member Islamic consultative assembly, and a judiciary (see Background Note on Iran, supra, at 5). Throughout its long history, Iran has been ruled by numerous dynasties. Following a nationalist uprising against the Shah in 1905, Iran enacted a limited constitution in 1906. Two years later, oil was discovered, and Iran began its steady ascension to a modern, secularized political system.

Under the reign of Reza Shah Pahlavi (an Iranian officer, who seized control of the government in 1921), Iran enacted policies of modernization and secularization, established a central government and reasserted its authority over the tribes and provinces (see Background Note on Iran, id., at 3). During the Allied occupation of western Iran in 1941, the Shah was forced to abdicate and was succeeded by his son, Mohammad Reza Pahlavi (see Background Note on Iran, id.).

Domestic turmoil swept Iran in 1978 as the result of heated religious and political opposition to the Shah’s rule and political/economic programs (especially the Shah’s internal security and intelligence service). And in February 1979, exiled religious leader Ayatollah Ruhollah Khomeini returned from France to direct a revolution resulting in a new, theocratic republic guided by Islamic principles. Iran’s 1979 constitution allocates the duties of the chosen religious leaders and governing bodies in such a way that their duties often overlap. Legislative issues on which the Majles (Iran’s legislative governing body) and the Council of Guardians (making up Iran’s religious leadership) fail to agree are resolved by the Council of Expediency (a body created by Ayatollah Khomeini in 1988). Following the Ayatollah’s death in June 1989, the Assembly of Experts (an elected body of senior clerics) chose the outgoing president of the republic (Ali Khamenei) to be the Ayatollah’s successor as national religious leader (see Background Note on Iran, id., at 4).

Iran’s post-revolution has been marked by an eight-year war with Iraq, internal political struggles and unrest, and economic disorder. Its post-revolution regime has been associated with human rights violations and political turmoil, including the seizure of the U.S. Embassy in November 1979 by Iranian militants and the hostage taking of 52 Americans (see Background Note on Iran, supra, at 6). Succeeding power struggles have severely eroded the center and left of Iran’s political institutions, leaving only the clergy. Both human rights and state sponsored terrorism remain serious problems in Iran and the Middle East. According to State Department reports, Iran’s Islamic Revolutionary Guard Corps and Ministry of Intelligence and Security Forces have been directly involved in terrorist acts, and continue to support Palestinian groups with leadership cadres in Syria and Lebanese Hizballah to use terrorism in pursuit of their goals (see Country Reports on Human Rights Practices 2007, supra, at 1-5; Country Reports on terrorism, Chapter 3 - State Sponsors of Terrorism Overview, supra, at 1-2). State Department reports claim Iranian authorities continue to provide military support and guidance to some Iraqi militant groups that target Coalition and Iraqi security forces and Iraqi civilians (see Country Reports on Terrorism, Chapter 3 - State Sponsors of Terrorism Overview, id.).

Long estranged from the West, Khomeini’s regime charted regional goals that curtail the presence of the U.S. and other outside powers in the region. Iran’s Islamic foreign policy continues to stress (1) vehement anti-U.S. and anti-Israel positions, (2) elimination of outside influence in the region, (3) support for Muslim political movements abroad, (4) critical support to non-state terrorist groups, and (5) considerable increase in diplomatic contacts with developing countries (see U.S. Dept. of State Background Note on Iran, supra; Iran: Country Reports on Human Rights Practices-2007, supra, at 1-16; Country Reports on Terrorism 2007, Chapter 3 - State Sponsors of Terrorism Overview, supra, at 1-2). In this vein, Iran maintains regular diplomatic and commercial relations with Russia and the former Soviet republics. Of special U.S. concern has been Russian sales of military equipment and technology to Iran (see U.S. Dept. of State Background Note on Iran, id., at 8).

Potential obstacles to improved relations between Iran and the U.S. include Iranian efforts to acquire technology that could be used to develop nuclear weapons and other weapons of mass destruction; its support for and involvement in international terrorism; its support for violent opposition to the Middle East peace process; and its dismal human rights record (see Statement of President George W. Bush, Message to the Congress of the U.S., supra; President of the U.S., Continuation of the National Emergency with Respect to Iran, supra; National Intelligence Estimate, Iran, Nuclear Intentions and Capabilities, supra; Annual Threat Assessment of the Director of National Intelligence for the Senate Select Committee on Intelligence, supra).

State Department country reports cite significant restrictions on the right of citizens to change their government, summary executions (minors included), disappearances, torture and severe punishments (such as amputations and flogging), violence by vigilante groups with ties to the government, poor prison conditions, arbitrary arrest and detention (including prolonged solitary confinement), lack of judicial independence and fair public trials, political prisoners and detainees, excessive government violence in Kurdish areas and unknown groups in Arab regions of the country, severe restrictions on civil liberties and freedom of religion, official corruption, government transparency deficiencies, legal and societal discrimination against women, ethnic and religious minorities, trafficking in persons, incitement of anti-Semitism, severe restriction of workers’ rights, and child labor (see Iran, Country Reports on Human Rights Practices-2007, supra, at 1-24).

Addressing reports of human rights violations in Iran, the UN General Assembly adopted a human rights resolution on Iran in December 2005 that expressed serious concern at the continuing use of torture in Iran and cruel, trafficking in persons, inhuman and degrading treatment or punishment, such as floggings and amputations, as well as public executions (see Iran, Country Reports on Human Rights Practices-2007, supra, id., at 3-24).

Even though Iran’s constitution prohibits arbitrary arrest and detention, these practices remain common. Its regular and paramilitary security forces that share responsibility with Iranian police for law enforcement and maintaining order are reported to have committed numerous, serious human rights abuses in recent years (see Iran, Country Reports on Human Rights Practices-2007, Iran, supra). Security forces responsible for arrest and detention often do not inform family members of a prisoner’s welfare and location, and often deny visits by family members and counsel.

State Department travel warnings urge U.S. citizens to carefully consider the risks of travel to Iran (see Travel Warning, Iran, 2008, supra), a country with which the U.S. does not currently have diplomatic or consular relations. Citing Iran’s non-recognition of dual citizenship and general declination to permit the Swiss to provide protective services for U.S. citizens who are also Iranian nationals, Americans who travel to Iran are strongly encouraged to register through the State Department’s travel registration website (see Travel Warning, Iran, 2008, id.).

Dual citizens residing or visiting in Iran are subject to all Iranian laws affecting U.S. citizens, as well as laws applicable to persons of Iranian nationality that impose special obligations on citizens of that country (see Travel Warning, Iran, 2008, id.; Iran, Country Specific Information, supra, at 1-2). Dual nationals remain subject to Iran’s military service requirements and can be conscripted into service while on Iranian soil. While such conscripted service seems unlikely to confront Applicant, given his age and longstanding U.S. citizenship, it remains a possibility should he decide to visit Iran. Reports indicate, too, that Iranian security personnel may at times place foreign visitors under surveillance, and even arrest or detain Iranian-Americans suspected of “acting against national security” (see Iran, Country Reports on Human Rights Practices-2007, supra, at 5-6; Iran, Country Specific Information, id., at 2-3).

Because the Iranian government does not recognize dual nationality and will treat U.S.-Iranian dual nationals as Iranian citizens, regardless of their U.S. naturalization status, dual nationals who enter Iran only on a U.S. passport risk detention absent persuasive proof of their formal renunciation or loss of their Iranian citizenship (see Iran, Country Specific Information, Iran, supra, at 1-2).

Character assessments

Applicant has received excellent endorsements from his company’s management. His supervisors describe him as a dependable staff planner and team player who is highly motivated and very trustworthy (see ex. A). His coworkers credit him with strong character and integrity with a reputation for dedication and sincerity on and off the job (ex. A).

POLICIES

The revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (effective September 2006) list Guidelines to be considered by administrative judges in the decision making process covering DOHA cases. These Guidelines require the administrative judge to consider all of the "Conditions that could raise a security concern and may be disqualifying” (Disqualifying Conditions), if any, and all of the "Mitigating Conditions," if any, before deciding whether or not a security clearance should be granted, continued or denied. The Guidelines do not require the administrative judge to assess these factors exclusively in arriving at a decision. In addition to the relevant Adjudicative Guidelines, administrative judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive, which are intended to assist the administrative judges in reaching a fair and impartial common sense decision.

Viewing the issues raised and evidence as a whole, the following adjudication policy factors are pertinent herein:

Foreign Influence

The Concern: 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 the this Guideline can and should considered 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. See Adjudicative Guideline, ¶ 6.

Burden of Proof

By virtue of the precepts framed by the Directive, a decision to grant or continue an Applicant's request for security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires administrative judges to make a common sense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. As with all adversary proceedings, the Judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the Judge cannot draw factual inferences that are grounded on speculation or conjecture.

The Government's initial burden is twofold: (1) It must prove any controverted facts alleged in the Statement of Reasons and (2) it must demonstrate that the facts proven have a material bearing to the applicant's eligibility to obtain or maintain a security clearance. The required showing of material bearing, however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance. Rather, consideration must take account of cognizable risks that an applicant may deliberately or inadvertently fail to safeguard classified information.

Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the burden of proof shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation or mitigation of the Government's case.

ANALYSIS

Applicant is a naturalized U.S. citizen who immigrated with his parents to the U.S. from Iran in 1984 to escape the turmoil wrought by the Iran-Iraq war. Security concerns focus on members of Applicant’s family (i.e., his maternal and paternal aunts and uncles) who are citizens and residents of Iran. Because the Iranian government’s military and intelligence authorities have a history of violating Iranian and international laws and diplomatic protocols, they are more likely to use improper and/or illegal means to obtain classified information in Applicant’s possession or control through his family members still residing in Iran.

By virtue of the Iranian citizenship and residency of Applicant’s maternal aunts and uncles in Iran, they present potential heightened security risks covered by disqualifying condition (DC) 7(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,” of the Adjudication Guidelines for foreign influence. The citizenship/residence status of these family members in Iran pose potential concerns for Applicant because of the risks of undue foreign influence that could compromise sensitive or classified information under Applicant's possession and/or control.

Although none of Applicant’s family members residing in Iran have any identified Iranian prior military or intelligence service, they have worked for an Iranian government agency. His aunt works currently for the same governmental in Iran that his husband previously retired from. On the strength of these connections alone, they resent some concerns over the potential for compromise and coercion for so long as they reside in Iran. Were either of these family members to be placed in a hostage situation, Applicant could be subject to conflicts over ensuring their well being and protecting classified information. For this reason, DC 7(b), “connection 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,” applies to the facts of this case. To be sure, none of Applicant’s aunts and uncles residing in Iran have any history to date of being subjected to any coercion or influence. These historical antecedents, when considered together with Applicant’s limited contact with these extended family members, do limit the severity of a conflict situation. However, the absence of any past coercive measures taken by Iranian authorities does not completely absolve Applicant from coercive risks in the future. Iran does have a checkered history of hostage taking and abusive measures taken against its own citizens and U.S. diplomats, and, as a result, must be assigned heightened risk status under the Guideline B guideline.

Still, upon fully considering Applicant’s very limited contact with his relatives in Iran, his demonstrated devotion to U.S. interests and values, and the lack of any reported associations between his aunts and uncles and Iran’s military and intelligence agencies, risks of undue foreign influence on Applicant and/or his family members residing in Iran in the foreseeable future are likely to be minimal. Heightened security risks created by Iran’s political status are considerably weakened as the result of the conflation of Applicant’s demonstrated commitments to the U.S., his limited contacts with his aunts and uncles in recent years , and the lack of any record of pressure or compromise attempts wrought against Applicant’s relatives residing in Iran.

The Adjudicative Guidelines governing security clearances do not dictate per se results or mandate particular outcomes for any chosen set of guidelines covering risks of foreign influence. What is considered to be an acceptable risk in one foreign country may not be in another. While foreign influence cases must by practical necessity be weighed on a case-by-case basis, guidelines are available for referencing. Personnel security assessments necessarily embrace similar risk assessments under the new Directive guidelines for assessing foreign influence risks and concerns associated with the individual's having family abroad, which include both common sense assessments of country risks and information available from public sources.

Unlike the old Adjudicative Guidelines, though, the new ones do take into account the country’s demonstrated relations with the U.S. as an important consideration in gauging whether the particular relatives with citizenship and residency elsewhere create a heightened security risk. The geopolitical aims and policies of the particular foreign regime involved do matter.

As demonstrated, Iran has long been known to be a repressive country, who has committed numerous, serious human rights abuses in recent years, and shown little respect for the rule of law. The U.S. has no diplomatic relations with Iran. Iran remains a country on the State Department ‘sstate terrorist list, and one with a known history of hostage taking and human rights abuses of wide magnitude and scope. Iran is consistently characterized as a country hostile to American political and security interests since the 1979 fall of the Shah of Iran and ensuing establishment of an Islamic republic with close ties and support to non-state terrorist groups. Based on reported terrorist activities in the country and in other countries in the region with support links to Iran, Iran cannot be deemed to provide an acceptable political and security environment for managing hostage risks.

To be sure, little is known about Applicant’s maternal aunts and uncles relationships with the Iranian agency they have current and past associations with, respectively. Even less is known about applicant’s paternal aunts and uncles. Applicant’s maternal and paternal aunts and uncles residing in Iran. Concerns about a potential hostage situation are considerably diminished, however, by the lack of any close Applicant relations or contacts with these relatives.

Based on Applicant’s case-specific circumstances, MC 8(a), “the nature of the relationships with foreign persons, the country in which these persons are located, or the persons or activities of these 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 a foreign individual, group, organization, or government and the interests of the U.S.” is unavailable to Applicant. While his parents and siblings (long U.S. citizens and residents) are for the most part insulated from potential pressures and influence from the Iranian government and its military and intelligence officials., the same cannot said for Applicant ‘saunts and uncles residing in Iran without more data on their associations, or lack thereof, with Iranian government agencies. Applicant, accordingly, may not take advantage of any of the mitigation benefits of MC 8(a).

By contrast, MC 8(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,” is fully available to Applicant. Applicant’s demonstrated loyalty and commitment to the U.S. and its institutions and values, his parents’ U.S. citizenship and residency, the absence of any history of coercive measures taken against any of Applicant’s aunts and uncles, and Applicant’s very limited contacts and ties with these same aunts and uncles, are well supported in this administrative record.

Applicant’s demonstrated loyalty, patriotism, and professional commitments to the U.S., are credible and substantial. Considered together with his very limited contact with his extended family members residing in Iran, the absence of any historical attempts to pressure or coerce any of Applicant’s family members in Iran, and Applicant’s very limited contacts and ties with these same aunts and uncles, Applicant’s case-specific circumstances are enough to neutralize all potential conflicts that are implicit in his relationships with his spouse and his wife’s parents. MC 8(c), “contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create risk for foreign influence or exploitation,” has some applicability herein to Applicant’s situation. One other mitigating condition has mixed application to Applicant’s situation. MC 8(e), “the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country,” has some prospective value based on Applicant’s long tenure of holding a security clearance in the Navy and his demonstrated loyalty and commitments to U.S. security interests. It is true that our Appeal Board has accorded very little weight to stated intentions to take corrective steps in a hypothetical set of circumstances, absent record evidence that an applicant has acted similarly under comparable circumstances. See ISCR Case No. 07-00029, at 4 (App. Bd. Dec. 7, 2007); ISCR Case No. 06-24575, at 4 (App. Bd. Nov. 9, 2007). Applicant’s long and meritorious Navy service and demonstrated loyalties to U.S. core security interests and values make him a very credible applicant for reporting any potential compromise attempts on any of his relatives residing in Iran.

Given that Iran remains a hostile country with no diplomatic relations with the U.S., and one that lacks a secure infrastructure and track record for respecting human rights and the rule of law, the risk of a pressure or influence situation involving even an extended family member of Applicant’s must be carefully scrutinized. Conflation of all of the circumstances surrounding Applicant’s devoted Navy service and commitments to U.S. security interests and core values, Iran’s country status, Applicant’s limited contacts with his aunts and uncles residing in Iran, the unlikelihood of his parents or brothers traveling to Iran in the foreseeable future, and the absence of any prior pressure attempts by the Iranian government to pressure, exploit or coerce any of Applicant’s relatives residing in Iran augur well for Applicant in making the necessary predictive judgments about whether risks of pressure an coercion are mitigated.

Whole person assessment permits mitigation of Applicant’s exposure to potential painful choices over ensuring the safety and well being of his maternal aunts and uncles residing in Iran. To his credit, Applicant is a fully Americanized U.S. citizen with demonstrated strong loyalties and commitments to U.S. core values. The trust he has inspired with his supervisors, coworkers, and friends promise to ensure that he would report any Iranian pressures or contacts to his facility security officer and not permit himself to be pressured by Iranian authorities in any hypothetical hostage situation.

Applicant’s honorable service in the U.S. Navy, his past holding of a security clearance in the Navy, the strong roots his parents and brothers have established in the U.S., and the unlikelihood that any of his immediate family members will be traveling to Iran in the foreseeable future make the potential risks of a hostage situation in Iran that could require Applicant to make difficult choices between protecting his family and safeguarding classified information unlikely.

By all accounts, Applicant and his immediate family members residing in the U.S. are fully Americanized and committed to the obligations and responsibilities expected of U.S. citizens. By contrast, Applicant is not very close to his aunts and uncles residing in Iran and much less likely to compromise national security to protect them in any potential confrontation with Iranian authorities.

After carefully considering Applicant’s familial connections in the U.S. and Iran and the risks of Applicant submission to Iranian pressures should any of his family members residing in Iran be pressured or coerced by Iranian authorities at some time in the foreseeable future, the weighted risks of a compromise are sufficiently discounted to become manageable ones at this time under a whole person assessment of all of the critical circumstances considered in this case.

Overall, any potential security concerns attributable to Applicant's relations with his aunts and uncles residing in Iran are sufficiently mitigated to permit safe predictive judgments about Applicant's ability to withstand risks of undue influence attributable to his familial relationships with relatives residing in Iran. Favorable conclusions warrant with respect to the allegations covered by sub-paragraphs 1.a through 1.fof Guideline B.

In reaching my decision, I have considered the evidence as a whole, including each of the factors and conditions enumerated in E2(a) of the Adjudicative Process of Enclosure 2 of the Directive.

FORMAL FINDINGS

In reviewing the allegations of the SOR in the context of the findings of fact, conclusions, and the factors and conditions listed above, I make the following separate formal findings with respect to Applicant's eligibility for a security clearance.

GUIDELINE B: (FOREIGN INFLUENCE): FOR APPLICANT

Sub-paras. 1.a through 1.f: FOR APPLICANT

CONCLUSION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue Applicant's security clearance. Clearance is granted.

Roger C. Wesley Administrative Judge