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ISCR Case 10-05308.h1 — CASE

ISCR Case 10-05308.h1granted

Case Headnote

ISCR Case No. 10-05308.h1

grantedOct 29, 2012· Hon. Richard A. Cefola· hearing

Summary

This case involved a U.S. citizen, born in Afghanistan, who applied for a security clearance under Guideline B (Foreign Influence). The Statement of Reasons raised concerns because the applicant's father is a citizen of Afghanistan, although he now resides in the U.S. These allegations invoked Disqualifying Conditions AG ¶ 7(a) and AG ¶ 7(b).

However, several mitigating factors were applied under AG ¶ 8(a) and AG ¶ 8(b). The applicant demonstrated strong ties to the United States, having lived in the country since age 18 and having served as an interpreter for U.S. forces in Afghanistan. Furthermore, the applicant's father is a permanent resident of the U.S. and does not receive any benefits from the Afghan government, which reduced the potential for foreign influence.

Crucially, the applicant credibly asserted his loyalty, stating it was "100 percent to the United States." The judge ultimately found no significant risk of divided loyalties and GRANTED the security clearance.

Why the Applicant Prevailed

The applicant demonstrated strong ties to the United States, having lived there since age 18 and serving as an interpreter for U.S. forces in Afghanistan.
The applicant's father is a permanent resident of the U.S. and does not receive any benefits from the Afghan government, reducing potential foreign influence.
The applicant credibly asserted his loyalty to the United States, stating his loyalties are '100 percent to the United States.'

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedForeign Contacts with a Family Member
AG ¶ 7(b)raisedConnections to a Foreign Person

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedNo Conflict of Interest Due to Deep U.S. Ties

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 15, 2011
Answer filedAug 12, 2011While deployed in Afghanistan.
Hearing heldSep 5, 2012Applicant was deployed in Afghanistan until September 2012.
Decision dateOct 29, 2012

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Service in the Military in Security Clearance Cases
Credibility of Applicant's Assertions of Loyalty to the U.S.

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's foreign influence concerns were mitigated due to his strong ties to the United States, including his U.S. citizenship and service as an interpreter for U.S. forces in Afghanistan. The applicant's father, a former Afghan Army officer, is now a permanent resident in the U.S., which further alleviated concerns about potential foreign influence. Ultimately, the judge ruled in favor of the applicant on all allegations under Guideline B.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The Applicant’s father is a citizen of Afghanistan, but now resides in the U.S.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.b	The Applicant’s father is a citizen of Afghanistan, but now resides in the U.S.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.c	The Applicant’s father is a citizen of Afghanistan, but now resides in the U.S.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.d	The Applicant’s father is a citizen of Afghanistan, but now resides in the U.S.	For Applicant	Parent in Foreign Country Immediate Family	Afghanistan	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—

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. 10-05308 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se

October 29, 2012

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

The Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on January 29, 2010. On June 15, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline B (Foreign Influence) for the Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective within the Department of Defense after September 1, 2006.

The Applicant acknowledged receipt of the SOR on August 12, 2011. He answered the SOR in writing, while deployed as an interpreter in Afghanistan, sometime thereafter, and requested a hearing before an Administrative Judge. DOHA received the request on or before October 6, 2011, and I received the case assignment that same date. The Applicant was deployed in Afghanistan until September of 2012. As the gravamen of this case revolved around the status of the Applicant’s father, who was also due to arrive in the U.S. in September of 2012, the hearing was scheduled for September 5, 2012. The Applicant testified on his own behalf. DOHA received the transcript of the hearing (TR) on September 12, 2012. I granted the Applicant’s request to keep the record open until October 5, 2012, to submit additional matters. On October 1, 2012, he submitted Exhibits (AppXs) A and B, which were received without objection. As Department Counsel did not forward these Exhibits until October 18, 2012, the record closed on October 18, 2012. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

Request for Administrative Notice

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

FINDINGS OF FACT

In his Answer to the SOR, the Applicant admitted the factual allegations in all the Subparagraphs of the SOR, without explanation.

Guideline B - Foreign Influence

The Applicant was born in Afghanistan in 1985. (TR at page 23 line 21 to page 31 line 18, and at page 33 line 4 to page 34 line 9.) After the rise of the Taliban during a period of civil war, he and his family fled to India in 1990. (Id.) In 2003, at the age of 18, his family, minus his father who returned to Afghanistan after the fall of the Taliban, immigrated to the United States as refugees. (TR at page 23 line 21 to page 31 line 18, and at page 33 line 4 to page 34 line 9.) In 2009, he became a U.S. citizen. (TR at page 26 lines 6–9.) He has been educated in the United States since his arrival, and now serves with U.S. forces as an interpreter in Afghanistan. (TR at page 40 lines 10–15, and at page 41 line 10 to page 43 line 17.)

1.a.~1.d. The Applicant’s father is a citizen of Afghanistan, but now resides in the U.S. (TR at page 36 line 16 to page 37 line 11, at page 38 lines 3–13, at page 46 line 14 to page 47 line 16, and at page 48 line 14 to page 49 line 1.) This is evidenced by his sworn Declaration, by his green card, and by his social security card. (Declaration, and AppXs A and B.) He is a retired senior officer from the Afghan Army. (TR at page 31 line 19 to page 32 line 10, and at page 36 lines 4–14.) He receives no pension from the Afghan government, and is supported solely by his family in the United States. (TR at page 47 line 23 to page 48 line 8.)

The Applicant averred credibly that his loyalties are “100 percent to the United States.” (TR at page 44 lines 5–12, and at page 45 line 16 to page 46 line 4.) I also take administrative notice of the following facts. Afghanistan has been an independent nation since 1919. However, in 1989, a civil war ensued with the departure of the Soviet Union’s forces, who had occupied Afghanistan for ten years. In the mid-1990s, the Taliban rose to power. However, the Taliban were forced out of power in 2001, by U.S. forces and a coalition partnership. After a few years of control by an interim government, democratic elections took place in 2004 and again in 2009. However, despite some tactical defeats and operational setbacks in 2010, the Taliban have continued to threaten United States and international goals in Afghanistan.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, 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 as to obtaining 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that 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

Paragraph 6 of the adjudicative guidelines sets out the security concern relating to Foreign Influence:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign 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 a foreign interest.

Here, Paragraphs 7(a) and 7(b) are arguably applicable: 7(a) “contacts with a foreign family member . . . 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 7(b) “connections to a foreign person . . 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 . . . by providing that information.” The Applicant’s father is a citizen of Afghanistan, and was a senior officer there. These are clearly countered, however, by the first and second mitigating conditions, as 8(a) “the nature of the relationships with foreign persons, . . . 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 . . . and the interests of the U.S.”; and 8(b) “there is no conflict of interest [as] 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.” The Applicant has lived in the Unites States since the age of 18, is a U.S. citizen, serves the U.S. military in Afghanistan, and his father is now a permanent resident of the United States. Furthermore, I find the Applicant cannot be coerced by the government of Afghanistan or any other government vis-a-vis his father, who now resides in the United States.

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. 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.

The Administrative Judge should also 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.

The record shows that the Applicant understands his responsibility to the United States, and serves this country in Afghanistan.

I have considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his alleged Foreign Influence.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: 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.

Richard A. Cefola Administrative Judge