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ISCR Case 09-06346.h1 — CASE

ISCR Case 09-06346.h1granted

Case Headnote

ISCR Case No. 09-06346.h1

grantedOct 29, 2010· Hon. Claude R. Heiny II· hearing

Summary

A 46-year-old naturalized U.S. citizen, originally from Iran and working as a software engineer, was granted a security clearance despite initial concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The Statement of Reasons highlighted that the applicant, who became a U.S. citizen in 1995, obtained an Iranian passport in 2009, an action viewed as seeking recognition of foreign citizenship. Additionally, he inherited an interest in land in Iran in 2007, which had been seized by the Iranian government following the revolution.

The applicant successfully mitigated these concerns. He demonstrated a strong commitment to the United States and no allegiance to Iran, stating he had no intention of using his Iranian passport for travel and would only use his U.S. passport. In November 2009, he surrendered his Iranian passport to his company’s facility security officer and obtained a power of attorney for his uncle to manage the inherited property.

The judge found that the applicant's ties to Iran were minimal, with no intention of returning or living there, and that his foreign financial interests were limited to the seized property. He had never voted in a foreign election and had not received any benefits from Iran. Consequently, the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant demonstrated no allegiance to Iran and expressed a strong commitment to the United States.
He surrendered his Iranian passport and provided a power of attorney to his uncle to handle matters related to the inherited property.
The applicant's ties to Iran were minimal, with no intention of returning or living there.

Conditions Referenced

Disqualifying

AG ¶ 10(a)(1)raisedPossession of a Current Foreign Passport
AG ¶ 10(b)raisedAction to Acquire or Obtain Recognition of a Foreign Citizenship

Mitigating

AG ¶ 11(b)appliedThe Individual Has Expressed a Willingness to Renounce Dual Citizenship
AG ¶ 11(e)appliedThe Passport Has Been Destroyed, Surrendered to the Cognizant Security Authority, or Otherwise Invalidated

Key Rule Quoted

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

Procedural Posture

SOR issuedMar 23, 2010
Answer filedApr 5, 2010
Hearing heldJun 30, 2010
Decision dateOct 29, 2010

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Mitigation of Foreign Preference Concerns Under Guideline C
Consideration of the Whole-person Concept in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the security concerns related to foreign influence. The applicant's ties to Iran were primarily through inherited property, which he is actively trying to dispose of, and he has no intention of returning to Iran. The judge ruled in favor of the applicant on all allegations under Guideline B, indicating that the applicant's loyalties lie with the United States.

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. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business · Community or Civic Involvement · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant was born in Iran and came to the United States at the time of Iran’s Islamic revolution. His family owed land in Iran, which was seized by the Iranian government following the revolution. In 2007, he inherited an interest in that land. He is trying to dispose of his interest in the property.	For Applicant	Foreign Real Estate Financial or Property Interest	Iran HEIGHTENED RISK	Admitted	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (e) promptly complied with reporting requirements	Claimed Other
2.b	Applicant has no intention of using his Iranian passport for travel. All travel will be on his U.S. passport. Having obtained the necessary power of attorney, he has no intention of renewing his Iranian passport. In November 2009, he surrendered his Iranian passport to his company’s facility security officer (FSO).	For Applicant	Failure to Disclose Foreign Association Other	Iran HEIGHTENED RISK	Admitted	—	(e) promptly complied with reporting requirements	Credited Foreign Passport Surrendered
2.c	Applicant has no divided loyalties, and his foreign financial interests are limited to the seized property. He has no allegiance or loyalty to Iran. He has not received any rights, privileges, or benefits from Iran. He has never voted in any foreign election. He has no ties, preference, sympathy, or allegiance to any foreign government.	For Applicant	Unspecified Foreign Relationship Other	Iran HEIGHTENED RISK	Admitted	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Other

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 applicant, who became a U.S. citizen in 1995, obtained an Iranian passport in 2009 to facilitate legal matters regarding inherited property in Iran. The judge found that the applicant's actions did not indicate a preference for Iran over the United States, as he had expressed a willingness to renounce any dual citizenship and had surrendered his Iranian passport. The judge ruled in favor of the applicant on all allegations under Guideline C.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	In 1995, Applicant chose to become a United States citizen. In doing so, he renounced his citizenship in Iran. However, in 2009, he obtained an Iranian passport. This action, taken after becoming a U.S. citizen, was to obtain recognition of foreign citizenship.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country (b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Claimed Other
1.b	In 1995, Applicant chose to become a United States citizen. In doing so, he renounced his citizenship in Iran. However, in 2009, he obtained an Iranian passport. This action, taken after becoming a U.S. citizen, was to obtain recognition of foreign citizenship.	For Applicant	Foreign Citizenship Acquisition or Application	Admitted	(a) applying for and/or acquiring citizenship in any other country (b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Claimed 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. 09-06346 ) ) Applicant for Security Clearance )

For Government: Daniel F. Crowley, Esquire, Department Counsel For Applicant: Patrick J. McLain, Esquire

October 29, 2010 ______________

STATEMENT OF CASE

______________

HEINY, Claude R., Administrative Judge:

Applicant was born in Iran and came to the United States at the time of Iran’s Islamic revolution. His family owed land in Iran, which was seized by the Iranian government following the revolution. In 2007, he inherited an interest in that land. He is trying to dispose of his interest in the property. Applicant has rebutted or mitigated the security concerns under foreign preference and foreign influence. Clearance is granted.

Statement of the Case

Applicant contests the Defense Department’s (DoD) intent to deny his eligibility for an industrial security clearance. Acting under the relevant Executive Order and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) on March 23, 2010, detailing security concerns under foreign preference and foreign influence.

On April 5, 2010, Applicant answered the SOR and requested a hearing. On June 4, 2010, I was assigned the case. On June 10, 2010, DOHA issued a Notice of Hearing for the hearing held on June 30, 2010. The Government offered Exhibits (Ex.) 1 through 4, which were admitted into evidence without objection. Applicant testified on his own behalf and submitted Exhibits A through G, which were admitted into evidence without objection. On July 9, 2010, DOHA received the hearing transcript (Tr.).

Request for Administrative Notice

Department Counsel submitted a formal request that I take administrative notice of certain facts relating to Iran. The request and the attached documents were not admitted into evidence, but were included in the record as Hearing Exhibit 1. 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 of the factual allegations, with explanations. He denied the disqualifying conditions under foreign influence and foreign preference. I incorporate his admissions to the SOR into the findings of fact. After a thorough review of the record, pleadings, exhibits, and testimony, I make the following additional findings of fact:

Applicant is a 46-year-old software engineer who has worked for a defense contractor since August 2004, and is seeking to obtain a security clearance. A project engineering manager who works with Applicant and has known him since 1990 states he is honest and is thankful and appreciative of all the United States offers him. (Tr. 38) He loves the United States and has no allegiance to Iran. (Tr. 38) His supervisor states, Applicant is trustworthy, truthful, and is “incredibly proud of our country and what opportunities this country has offered to him through education and for his family.” (Tr. 50) He is active in his community and his church. His sons are involved in scouts, soccer, baseball, basketball, and other activities. (Tr. 51, 94) He has no sympathy for the Iranian government. (Tr. 52)

In 1963, Applicant was born in Tehran, Iran. In 1979, an Islamic revolution occurred in Iran. In late 1978, Applicant—then age 15—moved with his family to the United States. (Ex. 2; Applicant’s SOR Answer) Since leaving Iran at age 15, he has never returned to Iran. (Tr. 87) His brother was attending school in the United States when the Iranian revolution occurred. (Tr. 86) He was granted refugee status. In May 1995, he became a naturalized United States citizen. (Ex. 1) In 1998, he obtained a U.S. passport. (Exs. 3, 4) Applicant and his family are adherents to an ancient, Persian religion called Zoroastrianism. (Tr. 65) Approximately 70 years ago, his grandfather purchased 88 hectares2 of farmland an hour away from Tehran. (Tr. 82) Approximately 65 years ago, his father and two uncles3 inherited the land upon the grandfather’s death. (Tr. 80) The land was operated as a farm until 1979, when the Islamic revolution caused his family and his uncles to flee Iran. The land was seized by the Iranian government.4 The government sold part of the land to individuals who built homes on the land. The remaining land is owned by various Iranian government agencies. Neither Applicant nor his family has ever received any financial benefit from this property. (Ex. 3)

Approximately ten years ago, the revised Iranian constitution retuned some property rights to select religious minorities. Applicant has a 74 year old uncle who is in the auto parts manufacturing business. His uncle, an Iranian citizen, lives part of the year in Germany and part in Iran. His uncle is currently living in the United States to receive medical treatment. His uncle started legal action to receive compensation for the property. It is his uncle’s desire to make the Iranian government pay something for the seized property. All involved realize there is no hope the property would be returned to them. They also realize compensation will never equal the fair market value of the property seized. Applicant believes the lawsuit has a 50% chance of succeeding. (Ex. 3, 73)

Applicant inherited a portion of this property upon his father’s death in February 2007. It was not his choice that his name appears as partial owner of the property. (Tr. 63)

To pursue the matter of compensation, all heirs to the property must join in the action. Those not present in Iran must provide an Iranian power of attorney. (Ex. F) Applicant provided a power of attorney, giving his uncle complete authority to handle any matters related to this property. (Tr. 3, 62) To obtain the power of attorney, Iranian law requires an individual born in Iran to present an Iranian passport. (Tr. 63) He no longer had a valid Iranian passport; his passport had expired in 1980. He was required to obtain one and did so in April 2009. (Tr. 64) The application never required him to state or swear allegiance to Iran in order to obtain the passport. (Tr. 64) He stated he was a United States citizen on his application for the Iranian passport. (Tr. 65) With the power of attorney, he relinquished whatever interest he has in the property.

Applicant has no intention of using his Iranian passport for travel. All travel will be on his U.S. passport. (Ex. 3) Having obtained the necessary power of attorney, He has no intention of renewing his Iranian passport. (Ex. 3) In November 2009, he surrendered his Iranian passport to his company’s facility security officer (FSO). (Ex. 4) In April 2009, all the heirs had submitted powers of attorney to the uncle. Due to poor health, his uncle transferred the pursuit for compensation to a friend in Iran. Should compensation be received, his uncle intends to divide the compensation between his children and his brothers’ children. Notices concerning the lawsuit were placed in the newspaper in Iran. (Exs. D, E)

Applicant owns a house in Iran and a share of real estate, along with other family members, which he also received by inheritance. He hopes his family will receive some benefit from the property rather than the Iranian government and religious leaders from the seizure of the property. (Ex. 3) He has no desire to visit Iran or to live there. He is financially stable and does not need compensation from the sale of this property. He expects to receive little, if anything, from the legal action.

Applicant has no divided loyalties, and his foreign financial interests are limited to the seized property. He has no allegiance or loyalty to Iran. He has not received any rights, privileges, or benefits from Iran. He has never voted in any foreign election. He has no ties, preference, sympathy, or allegiance to any foreign government. (Ex. 3) He has two sons, age 8 and 11, both born in the United States. (Tr. 94) He has been a Cub Scout leader. His job in the United States provides him a comfortable living. (Answer to SOR)

Applicant’s wife, a pre-school teacher, was born in Iran in 1972 and lives with him in the U.S. (Tr. 90) In March 2004, she became a naturalized United States citizen. (Tr. 90; Ex. 3) His father-in-law was born in India and is a dual Indian-Iranian citizen currently living in the U.S. His father-in-law is 67 and is retired. His mother-in-law, a United States permanent resident, was born in Iran. She is 64 years old, is retired, and resides in the U.S.

Applicant’s mother, a United States permanent resident, was born in Iran in 1936, and lives near him in the U.S. (Tr. 67; Ex. 2) His father, a United States Permanent Resident, was born in Iran in 1931 or 1932, and was living in the United States at the time of his death in 2007. (Ex. 2) His brother was born in Iran in 1959. His brother is a United States permanent resident residing in the U.S. and works as a wine distributor. (Tr. 83) His sister, a naturalized United States citizen, was born in Iran in 1957. His sister is a university professor living in California. (Tr. 84)

Applicant has other distant relatives living in Iran. An aunt and an uncle on his mother’s side and an aunt and an uncle on his father’s side live there. (Tr. 68, 81) He has telephone communication with them “maybe once a year,” giving condolences on deaths or for New Year’s wishes. (Tr. 79) His brother-in-law was born in Iran in 1960, and is a computer specialist with a bio-medical company in the U.S. His sister-in-law was born in Iran in 1969, lives in the U.S., and is currently unemployed. He has three cousins born in Iran. One is a computer information technology (IT) specialist living in the U.S. Another cousin owns a moving company in Canada. None of his relatives are affiliated with or have contact with any foreign government. Applicant’s third cousin is 26 years old, is a computer repair specialist, who was born in Iran in 1984. (Ex. G) His cousin is a Zoroastrian. As such, in Iran he is limited and constrained in practicing his religious beliefs, in the legal system, in gaining employment, in business opportunities, in higher education, and in the freedom to choose freely in marriage. (Ex. G) Applicant is sponsoring his cousin for U.S. citizenship. In October 2009, his cousin’s application for refugee status was conditionally approved. His cousin is living in the United States and is on a yearly renewal of his refugee status. His cousin is attending a university and does not live with him. (Tr. 71)

Applicant owns outright a 3.4 million dollars house that is currently on the market. (Tr. 74) He owns three rental properties worth two million dollars. (Tr. 75) He owns the home. He has a $275,000 mortgage on his home, which is appraised at $505,000. (Tr. 92) His mother owns a home near him. (Tr. 65) Applicant considers himself an American, and “this is where my everything is.” (Tr. 95)

Iran

Iran is a constitutional Islamic republic with a theocratic system of government in which Shi’a Muslim clergy dominate the key power structures, and ultimate political authority is vested in a learned religious scholar. The U.S. has not had diplomatic relations with Iran since 1980. The President’s National Security Strategy has stated that the United States “may face no greater challenge from a single country than from Iran.”

The U.S. Government has defined the areas of objectionable Iranian behavior as:

$ Iran's efforts to acquire 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; $ Its dismal human rights record; and Iran's intervention in the internal affairs of Iraq.5 $ $ The U.S. has designated and characterized Iran as the most active state sponsor of terrorism. Iran provides critical support to non-state terrorist groups. The government of Iran has committed numerous, serious human rights abuses against the Iranian people. Abuses include political killings and incarceration; summary executions; disappearances; religious persecution; torture; arbitrary arrest and detention, including prolonged solitary confinement; denial of due process; severe restrictions on civil liberties - speech, press, assembly, association, movement and privacy; severe restrictions on freedom of religion; official corruption; violence and legal and societal discrimination against women, ethnic and religious minorities, and homosexuals; trafficking in persons; and child labor.

Travel to Iran remains problematic. The State Department continues to warn U.S. citizens to consider carefully the risks of travel to Iran. U.S. citizens who were born in Iran and the children of Iranian citizens—even those without Iranian passports who do not consider themselves Iranian—are considered Iranian citizens by Iranian authorities, since Iran does not recognize dual citizenship. Therefore, despite the fact that these individuals hold U.S. citizenship, under Iranian law, they must enter and exit Iran on an Iranian passport, unless the Iranian government has recognized a formal renunciation or loss of Iranian citizenship. U.S.-Iranian dual nationals have been denied permission to enter or depart Iran using their U.S. passport; they even had their U.S. passports confiscated upon arrival or departure. U.S.-Iranian dual citizens have been detained and harassed by the Iranian government. Iranian security personnel may place foreign visitors under surveillance. Hotel rooms, telephones and fax machines may be monitored, and personnel possessions in hotel rooms may be searched.

Some elements of the Iranian government and population remain hostile to the U.S. Consequently, American citizens may be subject to harassment or arrest while traveling or residing in Iran. The U.S. government does not currently have diplomatic or consular relations with the Islamic Republic of Iran, and therefore, cannot provide protection or routine consular services to American citizens in Iran. The Swiss government, acting through its Embassy in Tehran, serves as protecting power for U.S. interests in Iran. Neither U.S. passports nor visas to the United States are issued in Tehran.

The Iranian government generally does not permit the Swiss to provide protective services for U.S. citizens who are also Iranian nationals. In addition, U.S. citizens of Iranian origin who are considered by Iran to be Iranian citizens have been detained and harassed by Iranian authorities. Nevertheless, Iran is not a known collector of U.S. intelligence or sensitive economic information, nor is it known to target U.S. citizens to obtain protected information.

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 must be considered 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by 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 as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 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 C, Foreign Preference

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

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may 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. Two 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;

. . .

(5) using foreign citizenship to protect financial or business interests in another country.

(b) action to acquire or obtain recognition of a foreign citizenship by an American citizen.

In 1995, Applicant chose to become a United States citizen. In doing so, he renounced his citizenship in Iran. However, in 2009, he obtained an Iranian passport. This action, taken after becoming a U.S. citizen, was to obtain recognition of foreign citizenship. The conditions in AG ¶ 10(a)(1) and 10(b) are disqualifying. Although potentially applicable, I do not find AG ¶ 10(a)(5) to apply because he was not attempting to protect financial interests in another country with his citizenship.

Conditions that could mitigate Foreign Preference security concerns are provided under AG ¶ 11. Two are potentially applicable:

(b) the individual has expressed a willingness to renounce dual citizenship; . . .

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

Applicant acquired the Iranian passport not to increase his ties to Iran, but to minimize his ties. He had inherited property in 2007 when his father died. The land had been seized because of the religious beliefs of his family. The seizure occurred when his family fled Iran in 1979. Since 1979, the oppression on religious minorities has eased somewhat. There is the possibility that compensation for the property may occur. His uncle is pursuing compensation for the seized land. The power of attorney he gave his uncle gave his uncle complete power to handle any matters related to the Iranian property.

Applicant’s Iranian passport had expired in 1980. To obtain the power of attorney, he had to have an Iranian passport. Once got the passport, he obtained the power of attorney, and then surrendered the passport to his FSO. He never intended to use it for travel. He took this action to minimize his contact with Iran. He never purchased the property. He asserts with the power of attorney he has surrendered his interest in the property. He has not lived in Iran for 31 years. He has no intention of visiting Iran or ever living there. His loyalties are to the United States. The mitigating factors in AG ¶¶11(b) and 11(e) apply.

Guideline B, Foreign Influence

AG ¶ 6 explains the Government’s security concern regarding foreign influence:

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.

AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying 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;6

. . .

(e) a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation;

Applicant’s ties to Iran have become minimal over the years. He has not returned to Iran since he left at age 15. He renounced his Iranian citizenship when he became a United States citizen. He has infrequent communication with two aunts, two uncles, and two cousins who are citizens and residents of Iran. His telephone calls involve good wishes for the New Year and condolences when appropriate. Additionally, he had an interest in land seized by the Iranian government before surrendering his interest to his uncle in a power of attorney. His uncle has complete power to disburse any funds received and he realizes he may not receive any funds. The disqualifying conditions in AG ¶¶ 7 (a) and (e) have some applicability.

Applicant left Iran in 1978, when he was 15 years old. He has never returned and does not intend to return. He became a naturalized United States citizen in 1995. His wife became a naturalized United States citizen in 2004. His mother and sister are naturalized United States citizens. Both his brother and mother-in-law have their United States Permanent Resident Cards. His two sons are United States citizens. Applicant is sponsoring his 26-year-old cousin for U.S. citizenship. In October 2009, his cousin was granted refugee status. All of these individuals, including his father-in-law, live in the United States.

Four of the mitigating conditions under AG ¶ 8 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.;

(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;

(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; . . .

(f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

The mitigating conditions listed in AG ¶¶ 8(a) and 8(c) partially apply. None of his relatives living in Iran are in positions connected with the Iranian government or engaged in activities that would likely cause him to be exploited or placed in a position of having to choose between them and the United States. His infrequent contacts (once a year) and his relationship with these individuals is not close and has a very low potential for forcing him to choose between the United States and Iran. He met his burden of showing there is little likelihood that his relationship with his Iranian relatives could create a risk of foreign influence or exploitation. However AG && 8(a) and 8(b) cannot be fully applied because of Iran’s hostile relationship with the U.S and Iran’s negative human rights record, which makes it more likely that Iran would violate the law to gain classified information.

Applicant established the application of AG ¶ 8(b). Based on his relationship and depth of loyalty to the United States, he can be expected to resolve any conflict of interest in favor of U.S. interests. He has lived in the United States since 1979, more than 30 years ago. He became a U.S. citizen in 1995. His wife and sister are naturalized citizens. His brother and mother-in-law are permanent residents. His cousin has obtained refugee status and now lives in the United States. His two sons are United States citizens, having been born here.

Applicant is attempting to dispose of his real estate interest in Iran. The property was seized at the time of the Iranian revolution. It will never be returned to him or his family. During the past 30 years he has received no compensation from the land. It is unlikely the suit for compensation will be successful. He believes there is a 50% chance of receiving some compensation. He is financially stable, does not need compensation from the land, and seeks none. He owns two homes and three rental properties worth approximately 5.7 million dollars. When the possibility of some compensation on the Iranian land is compared to his United States property, that land is not “substantial property interest.” The minimal value of the foreign property is such that it is unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure him. The mitigating conditions in AG ¶ 8(f) apply.

There is no evidence that terrorists or the Iranian Government have approached or threatened Applicant or his Iranian relatives for any reason. There is no evidence that his siblings living in Iran currently engage in activities which would bring attention to them or that they or other Iranian elements are even aware of his work. As such, there is a reduced possibility that his relatives living in Iran or he would be targets for coercion or exploitation.

There is no evidence any of his foreign relatives currently works or ever worked for the Iranian Government, military, or news media, or any other foreign government. None of his relatives are involved with organizations which seek to harm the U.S.

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. A Guideline B decision concerning Iran must take into consideration the geopolitical situation in that country, as well as the dangers existing in Iran.7

The Appeal Board requires the whole person analysis address “evidence of an applicant’s personal loyalties; the nature and extent of an applicant’s family’s ties to the U.S. relative to his [or her] ties to a foreign country; his or her ties social ties within the U.S.; and many others raised by the facts of a given case.” ISCR Case No. 04-00540 at 7 (App. Bd. Jan. 5, 2007). Substantial mitigating evidence weighs towards granting Applicant’s security clearance.

Applicant is fully entrenched in the United States and is unlikely to compromise his life here. He is a mature person. He has lived in the United States for more than 31 years, and has been a naturalized citizen for the past 15 years. Since leaving Iran at age 15, he has never returned to Iran. He does not intent to return to Iran. His family, property, and future are in the U.S.

Applicant’s spouse has been a naturalized United States citizen since 2004. His two children were born in the United States. He earned a degree from a U.S. institution. He is a successful member of the business community, providing services to the U.S. government. His ties to the United States are much stronger than his ties to his relatives living in Iran. His mother, brother, sister, and mother-in-law are all permanent United States residents and living in the United States. His father-in-law also lives in the United States.

There is no evidence Applicant has ever taken any action that could cause potential harm to the United States. He takes his loyalty to the United States seriously. His Iranian citizenship was renounced when he took his oath of United States citizenship. He obtained an Iranian passport in order to get a power of attorney, so that he could dispose of his interest in the Iranian property. He obtained the passport not to increase his ties with Iran, but to eliminate them by disposing of the land. He surrendered the Iranian passport to his FSO. His property in the United States greatly exceeds the value of the seized land in Iran. The record contains no derogatory information about him.

I have carefully weighed the evidence in favor of Applicant against the government's concerns about his ability to protect classified information. I have considered the Iranian government’s hostile relationship with the U.S. and unwillingness to comply with international law and respect the human rights of Iranian citizens and former Iranian citizens. I find that there is little potential for Applicant to be pressured, coerced, or exploited because of his relatives living in Iran. Overall, the record evidence leaves me without questions or doubts as to his eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has mitigated the foreign influence 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, Foreign Preference: FOR APPLICANT

Subparagraphs 1.a and 1.b: For Applicant

Paragraph 2, Foreign Influence: FOR APPLICANT

Subparagraphs 2.a - 2.c: 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.

_______________________ CLAUDE R. HEINY II Administrative Judge

FOOTNOTES

1 Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (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. 2 A hectare equals 2.471 acres. (Ex. 3) The land is approximately 217 acres.

3 One of Applicant’s two uncles is deceased. He was living in Germany when he died. (Tr. 85)

4 The Republic of Iran’s 1979 Constitution stated no religious minority could own any major piece of property in Iran. (Ex. B) 5U.S. Department of State; Country Reports on Terrorism, Chapter 3 – State Sponsors of Terrorism Overview, dated April 30, 2009, U.S. Department of State; State Sponsors of Terrorism. (Hearing Exhibits) 6 The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in a foreign country and an applicant has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). 7 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient discussion of geopolitical situation and suggesting expansion of whole person discussion).