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ISCR Case 10-10659.h1 — CASE

ISCR Case 10-10659.h1denied

Case Headnote

ISCR Case No. 10-10659.h1

deniedJul 1, 2010· Hon. Juan J. Rivera· hearing

Summary

A 59-year-old U.S. citizen, originally from Belarus, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed primarily from her close relationship with her older son, a Russian citizen residing in Russia. Her son has worked for approximately 16 years as a chemist at a government-related research facility connected to nuclear power, the same facility where the applicant worked for 23 years while living in Russia.

Although the applicant had divested her Russian condominium and retirement benefits, these actions were deemed insufficient to mitigate the foreign influence concerns. The judge cited the potential for coercion and divided loyalties due to her familial ties in Russia, specifically her frequent communications with her son and his family.

The Statement of Reasons also noted that her half-brother is a citizen and resident of Belarus, though the applicant had no contact with him since 2000 or 2001, nor with anyone else in Belarus. Ultimately, the applicant's close relationship with her son, a Russian citizen, created a heightened risk of foreign exploitation and pressure, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant's close relationship with her son, a Russian citizen, created a heightened risk of foreign exploitation and pressure.
The applicant's communications with her son and his family in Russia were frequent, indicating a potential conflict of interest.
The applicant's divestment of property and retirement benefits did not sufficiently mitigate the foreign influence concerns.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 8(a)rejectedNature of Relationships with Foreign PersonsThe applicant's relationship with her son was deemed too close to mitigate concerns.

Key Rule Quoted

“The mere possession of close family ties with family living in a foreign country is not, as a matter of law, disqualifying under Guideline B.”

Procedural Posture

SOR issuedNov 10, 2011
Answer filedDec 20, 2011
Hearing heldApr 10, 2012Record held open until April 27, 2012.
Decision dateApr 23, 2012

Cite For

Foreign Influence Concerns Due to Familial Ties Under Guideline B
Impact of Foreign Citizenship on Security Clearance Eligibility
Mitigation Challenges Related to Foreign Preference and Influence

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the foreign influence concerns due to her close relationship with her son, a Russian citizen residing in Russia, which raised security risks. Although the applicant mitigated some concerns by divesting her Russian property and retirement benefits, the ongoing communication with her son was deemed a significant risk factor, leading to the denial of her security clearance.

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

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Children · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Your older son is a citizen and resident of Russia. He has worked as a chemist for about 16 years at the same research facility where Applicant worked for 23 years, when she lived in Russia. The research facility is a government-related facility that is connected to the generation of nuclear power.	Against Applicant	Parent in Foreign Country Immediate Family GOVT-AFFILIATED	Russia HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	—	—
1.b	Your half-brother is a citizen and resident of Belarus. The last time you saw him or had contact with him was in 2000 or 2001 at your mother’s funeral. You do not have any contact with anyone in Belarus.	For Applicant	Sibling in Foreign Country Immediate Family	Belarus	Admitted	—	—	—

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: denied

The judge found that the applicant mitigated some security concerns regarding foreign preference by divesting her ownership of a condominium in Russia and terminating her Russian retirement benefits. However, the applicant's close relationship with her son, a Russian citizen living in Russia, raised foreign influence concerns that were not mitigated, leading to the denial of her security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant			—	—	—

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. 10-10659 ) ) ) Applicant for Security Clearance

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se

04/23/2012 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Applicant mitigated security concerns regarding foreign preference by divesting herself of her condominium in Russia and her Russian retirement benefits. Her older son lives in Russia, and he is a Russian citizen. He has worked as a chemist for about 16 years at the same research facility where Applicant worked for 23 years, when she lived in Russia. The research facility is a government-related facility that is connected to the generation of nuclear power. Because of her close relationship with her son in Russia, foreign influence concerns are not mitigated. Access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on March 19, 2010. On November 10, 2011, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) listing security concerns under Guideline B (foreign influence) and Guideline C (foreign preference).1 Applicant answered the SOR on December 20, 2011, and requested a hearing before an administrative judge. The case was assigned to me on February 21, 2012.

DOHA issued a notice of hearing on March 20, 2012, convening a hearing for April 10, 2012. At the hearing, the Government offered exhibits (GE) 1 through 6, which were admitted without objection. Applicant testified, and she did not submit any exhibits. DOHA received the hearing transcript (Tr.) on March 1, 2012. I held the record open until April 27, 2012, to permit Applicant to submit additional evidence concerning the power of attorney to transfer her interest in a condominium in Russia, and proof that her son had applied for a green card to move to the United States. (Tr. 92) On April 12, 2012, Department Counsel provided the documentation Applicant submitted without objection, and I admitted Applicant’s post-hearing documentation into evidence. (AE A) I received the transcript on April 18, 2012.

PROCEDURAL RULINGS

Department Counsel moved to amend the allegation in SOR ¶ 1.bfrom “Your two brothers-in-law are citizens and residents of Belarus” to “Your half-brother is a citizen and resident of Belarus.” (Tr. 16-17) Applicant did not object to the amendment, and I granted Department Counsel’s request.

Department Counsel requested that I take administrative notice of facts concerning Russia and Belarus. (Tr. 29-30; GE 5 and GE 6) Applicant did not object, and I granted Department Counsel’s request.

FINDINGS OF FACT

In her response to the SOR, Applicant admitted the SOR allegations in ¶ 1.a and denied the allegations in SOR ¶¶ 1.b, 2.a, and 2.bwith explanations. At her hearing, she admitted SOR ¶ 1.b, as amended. Her admissions are incorporated to the findings of fact. After a complete and thorough review of the evidence of record, and having observed Applicant’s demeanor and considered her testimony, I make the following findings of fact.

Applicant is 59 years old, and she is seeking employment with a Defense contractor as an interpreter and language analyst. She is currently attending community college to improve her English language skills, and she is taking chemistry courses at a U.S. university. She also teaches Russian language classes for about 30 hours a week. A security clearance is required for her employment as a linguist with technical expertise. She has never held a security clearance.

Applicant was born in Belarus, which was then a part of the Union of Soviet Socialist Republics (USSR). She does not have any brothers, sisters, aunts, or uncles. Applicant received her bachelor’s degree in analytic chemistry; her master’s degree in 1986, in electric chemistry; and her doctor’s degree in 1996, in natural sciences and chemistry. She received all three degrees in Russia, and her education was funded by the Soviet Government. (Tr. 8, 46, 72, 75-76) She married her first husband in 1972, and they were divorced in 1992. He lives in Russia, and she does not have any contact with him. She has two children from her first marriage.

Applicant has never served in the Soviet military, and she has never had a Soviet security clearance. In 1997, she immigrated to the United States to continue her education. In July of 1997, she married her second husband, who was born in the United States. They were divorced in September 2008. She has lived with the same partner for the last seven years, and she is not currently married. She was naturalized as a U.S. citizen in 2008, and she received her U.S. passport that same year.

Applicant’s older son is a citizen and resident of Russia. He is 37 years old, married, and has a nine-year-old son. He applied for a green card to immigrate to the United States. (AE A) He has worked as a chemist for about 16 years at the same research facility where Applicant worked for 23 years, when she lived in Russia. (Tr. 43- 45) The research facility is a government-related facility that is connected to the generation of nuclear power. (Tr. 43-45, 70-71) Applicant communicates with her son and his family in Russia every week by telephone and Skype. (Tr. 42) He visited Applicant in the United States in January 2012. (Tr. 66-67) She does not provide financial support to her son. He should be able to move to the United States in one year. (Tr. 41) His spouse is divorcing him, and she will not accompany him to the United States. (Tr. 42) In November 2010, the State Department wrote her son that his immigrant visa petition was recently received. (AE A) Her son does not know Applicant is applying for a security clearance. (Tr. 68)

Applicant’s younger son is 29 years old. He came to the United States in 1997 with Applicant, and he currently lives in the United States near Applicant. He is a naturalized U.S. citizen. He has a security clearance and works for a U.S. Government Agency.

Applicant’s half brother is a citizen and resident of Belarus. (Tr. 52) The last time she saw him or had contact with him was in 2000 or 2001 at her mother’s funeral. The time before the funeral that she saw him was in the mid-1990s. She did not have his address or phone number, and she was unaware of his occupation. He did not complete college, so she assumed he was doing manual labor or driving a truck. Applicant left her family in Belarus when she was 17 years old to attend college. Applicant does not have any contacts with anyone in Belarus. (Tr. 55) In 1992, Applicant and her husband received an apartment or condominium free from the Soviet Government. (Tr. 56) When Applicant and her husband divorced, he gave away his ownership interest. (Tr. 56) Applicant and her two sons are the sole owners of the property. (Tr. 56-57) The value of the property is about $30,000 to $40,000. (Tr. 57) Around March 2011, Applicant gave her share of the property to her older son, who lives in Russia. (Tr. 58-59) Applicant does not own any property or have any bank accounts in Russia. (Tr. 60)

Applicant surrendered her Russian passport in March 2011 at the request of her potential employer’s security officials. (Tr. 49-50) It was scheduled to expire in June 2011. She was aware of the administrative and political difficulties involved in formally renouncing her Russian citizenship (Tr. 49, 78).2 Her most recent use of her Russian passport was when she most recently traveled to Russia, which was in 2006. (Tr. 64) She also presented her U.S. passport to Russian authorities. (Tr. 65) She does not intend to return to Russia. (Tr. 66)

In 1997, when Applicant was 45 years old, she began receiving retirement benefits of about $100 per month for her employment at the government-related research facility where she worked for 23 years, when she lived in Russia. (Tr. 61-62, 78-79) In 2011, the retirement benefits terminated, when she relinquished her Russian passport to her security officer. (Tr. 61) Her retirement benefits terminated because she stopped providing a certification form to the Russian Government. (Tr. 62) The funds from the Russian retirement payments had accumulated in a Russian account, which she transferred to her son, who is living in Russia. (Tr. 63, 81-82, 85-86) Applicant is not expecting to inherit any property in Russia.

Applicant’s net worth in the United States is approximately $300,000. (Tr. 64, 83- 85) Her net worth is mostly from two real estate properties.

The Russian Federation (Russia) is a vast and diverse nation composed of 21 republics. 3 Its population of 142 million people is multinational and multi-ethnic. Russia achieved independence with the dissolution of the Soviet Union in August 1991. Russia has retained a powerful military and remains a nuclear superpower. The Russian government consists of a strong executive branch, a bicameral legislature, and a weak judiciary.

U.S. citizens visiting Russia must always possess a valid U.S. passport. U.S. citizens who are former Russian citizens may be viewed as Russian citizens and not allowed to leave Russia except on a Russian passport. Males who are considered Russian citizens may encounter problems if they did not satisfy Russian military requirements prior to leaving for the United States.

Although there is a general risk of U.S. citizens being subjected to indiscriminate acts of terror in Russia, there is no current indication that Americans are singled out as targets. Terrorist activity in Russia includes suicide bombings and hostage taking, especially in connection with the Chechen conflict. Russian human rights abuses in the Chechen conflict include torture, summary executions, use of indiscriminate force and arbitrary detentions. In addition to problematic behavior in the Chechen conflict, Russian authorities engage in arbitrary arrest and detention as well as torture and abuse to obtain confessions. Officials have illegally employed electronic surveillance, monitored Internet, telephone and email communications, and entered residences without a warrant. There is widespread government corruption and prison conditions are extremely harsh. Government pressure and censoring of the media and endemic crime are also significant Russian problems. The Russian legislature has passed a series of reforms in Russian criminal procedural laws, making their law more consistent with Western standards. Russian human rights performance has improved in some areas.

As of 2005, Russia and China were the two most aggressive collectors of sensitive and protected U.S. technology and accounted for the majority of such targeting. Russia has an active, ongoing collection program targeting sensitive U.S. industrial and military technology as well as commercial and dual-use technology. Russia also targets national security and environmental researchers as well as signal intelligence. Russia provides technology to other countries that has the potential to be used in the construction of weapons of mass destruction, biotechnology and missiles.

In June 2010, the U.S. Department of Justice announced the arrest of ten alleged secret agents for carrying out long-term, deep-covered assignments on behalf of Russia. The defendants plead guilty and were immediately expelled from the United States. In January 2011, a convicted spy and former CIA employee was sentenced to an additional prison term because of money laundering and conspiracy to act as an agent of the Russian government for passing information to the Russian government between 2006 and 2008.

Russia and the United States are frequently aligned on political initiatives and have joined in numerous international agreements, including efforts to resolve international political problems at the United Nations. For example, the United States and Russia entered into a bilateral World Trade Organization accession agreement in 2006. In 2007, Russia imported U.S. goods valued at $7.4 billion. Russia and United States are allies in the war on terrorism, and both seek to suppress the proliferation of weapons of mass destruction. Both countries have specially emphasized the reduction of strategic arsenals. Since 1992, the United States has spent over $7 billion in Cooperative Threat Reduction (CTR) (or “Nunn-Lugar”) funds and related programs to help Russia dismantle nuclear weapons and ensure the security of its nuclear weapons, weapons grade material, other weapons of mass destruction, and related technical know-how.” The CRT program was renewed in 2006 for seven years, until 2013.

POLICIES

Eligibility for access to classified information may be granted “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

The AG list disqualifying and mitigating conditions for evaluating a person’s suitability for access to classified information. Any one disqualifying or mitigating condition is not, by itself, conclusive. However, the AG should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Each decision must reflect a fair, impartial, and commonsense consideration of the whole person and the factors listed in AG ¶ 2(a). All available, reliable information about the person, past and present, favorable and unfavorable must be considered.

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; AG ¶ 2(b). Clearance decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing a clearance.

ANALYSIS

Foreign Influence

AG ¶ 6 explains the security concern about “foreign contacts and interests” stating:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, [he or she] 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 indicates two 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; and

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information.

Applicant’s 37-year-old son was born in Russia, is a Russian citizen, and currently lives in Russia. She communicates with her son and his family in Russia every week by telephone and Skype. Her son visited Applicant in the United States in January 2012. Applicant’s half brother is a citizen and resident of Belarus; however, she has not communicated with him for more than 10 years.

Applicant’s relationship with her son and grandson living in Russia is sufficient to create “a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion,” and a potential conflict of interest between Applicant’s “obligation to protect sensitive information or technology and [her] desire to help” her son and grandson living in Russia. See ISCR Case No. 09-06457 at 4 (App. Bd. May 16, 2011). She has affection for her son and grandson living in Russia. Her communications with her half brother are infrequent, and accordingly, that relationship does not raise a security concern. SOR ¶ 1.bis mitigated.

The mere possession of close family ties with family living in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if an applicant has a close relationship with even one relative living in a foreign country, 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).

The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, the country is known to conduct intelligence collection operations against the United States, or the country has a significant problem with lawless elements or terrorists. The relationship of Russian Government with the U.S. Government increases Applicant’s burden of persuasion to demonstrate that her relationships with her family living in Russia do not pose a security risk. The United States and Russian Governments have improved ties in the area of national security and defense forged through several years of being allies in a conflict against terrorists. Nevertheless, Applicant should not be placed into a position where she might be forced to choose between loyalty to the United States and a desire to assist her family living in Russia.

Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. See ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002).

There is no evidence that intelligence operatives from Russia or terrorists seek or have sought classified or economic information from or through Applicant or her family living in Russia. Nevertheless, her relationships with her family living in Russia create a potential conflict of interest. Her relationship with them is sufficiently close to raise a security concern about her desire to assist them by providing sensitive or classified information. Department Counsel produced substantial evidence of Applicant’s contacts with her family living in Russia, raising the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a) and 7(b) apply, and further inquiry is necessary about potential application of any mitigating conditions.

AG ¶ 8 lists six conditions that could mitigate foreign influence security concerns including:

(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;

(d) the foreign contacts and activities are on U.S. Government business or are approved by the cognizant security authority;

(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; and

(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.

AG ¶¶ 8(a) to 8(c) have limited applicability. Applicant has frequent contact with and affection for her son and grandson living in Russia. She is not able to fully meet her burden of showing there is “little likelihood that [her relationships with her relatives, friends, and business associates who are Russia citizens and living in Russia] could create a risk for foreign influence or exploitation.”

Although her older son lives in Russia and applied for a green card in 2010 to immigrate to the United States, he remains vulnerable to Russian coercion until he becomes a resident of the United States. He has worked as a chemist for about 16 years at the same research facility where Applicant worked for 23 years, when she lived in Russia. The research facility is a government-related facility that is connected to the generation of nuclear power. Because of his close connection to an important and sensitive industry, nuclear power, he has closer connections to the Russian Government, than many other Russian citizens.

Under AG ¶ 8(b), Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by her relationships with her family living in Russia. Although there is no evidence that Russian government agents, terrorists or criminals have approached or threatened Applicant or her family living in Russia because of her work for the United States, she is nevertheless potentially vulnerable to threats and coercion made against her family living in Russia. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant has established that “[she] can be expected to resolve any conflict of interest in favor of the U.S. interest.” Applicant was born in Belarus. In 1997, she immigrated to the United States, and she became a U.S. citizen in 2008. She has lived with a partner, who is U.S. citizen for several years, and her youngest son is a U.S. citizen. He works for a U.S. Government agency and holds a security clearance. She owns property in the United States valued about $300,000. AG ¶ 8(d) does not apply because Applicant’s contacts and relationships with her family in Russia were not on behalf of the U.S. Government. AG ¶ 8(e) does not apply. Applicant is not required to report her contacts with family members and others living in Russia.

AG ¶ 8(f) applies to the extent that Applicant owned any property, such as a condominium or bank accounts, in Russia. Applicant has divested herself of any interest in property or bank accounts in Russia. This mitigating condition can only fully mitigate AG ¶ 7(e), which was not applied because her property in Russia was listed under Guideline C.

In sum, Applicant’s connections to her family living in Russia remain very significant to her. Even though she has strong connections to the United States, those connections are insufficient in light of Russia’s extensive efforts to obtain classified and sensitive information from the United States, the long-term rivalry between the United States and Russia, Russian espionage efforts against the United States, and Russia’s aggressive actions against neighbors and Russian citizens, which show a pattern of failure to comply with the rule of law. The mitigating information taken together is insufficient to fully overcome the foreign influence security concerns under Guideline B.

Foreign Preference

Under AG ¶ 9 the security concern involving foreign preference arises, “[W]hen 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.”

AG ¶ 10(a) describes conditions that could raise a security concern and may be disqualifying in Applicant’s 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.” Applicant had a one-third ownership in a condominium located in Russia; and she received retirement benefits of $100 per month until 2011 from the Russian Government. (SOR ¶¶ 1.a and 1.b) These facts establish AG ¶ 10(a) and further inquiry about the applicability of mitigating conditions is required.

AG ¶¶ 11(b) and 11(e) provide two conditions that mitigate security concerns for foreign preference stating, “(b) the individual has expressed a willingness to renounce dual citizenship” and “(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.”4 Applicant credibly stated she was willing to renounce her Russian citizenship at her hearing. When she was advised that there was a security concern under Guideline C because she retained her Russian passport, she relinquished it to the contractor’s security personnel. She has divested herself of any interest in her retirement payments and of her interest in the condominium located in Russia. All foreign preference concerns are mitigated.

WHOLE PERSON CONCEPT

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, and under the whole-person concept. (AG ¶ 2(c))

The whole-person factors weighing towards approval of Applicant’s security clearance are important; however, they are insufficient to warrant approval of her access to classified information. She is 59 years old, and she is mature and responsible. She has continued to educate herself, attending community college and university. She has strong connections to the United States. She immigrated to the United States in 1997. She became a U.S. citizen in 2008. She has lived with a partner for seven years, who is a U.S. citizen. Her youngest son immigrated with Applicant to the United States, and he is a U.S. citizen. He works for a U.S. Government agency and holds a security clearance. She owns property in the United States valued about $300,000.

Applicant divested herself of any interest in property or bank accounts in Russia. She turned in her Russian passport to her security office. Her sole passport is her U.S. passport. She offered to renounce her Russian citizenship. Applicant has never served in the Soviet military, and she has never had a Soviet security clearance. In November 2010, the State Department wrote her oldest son to confirm that his immigrant visa petition was recently received. He intends to immigrate to the United States. Her older son does not know she is applying for a security clearance.

The factors supporting a continuing foreign influence security concern and denial of Applicant’s security clearance because of Applicant’s connections to Russia are more significant than the factors weighing towards approval of her access to classified information. Applicant was born in Belarus, which was then part of the Soviet Union 59 years ago. She received her bachelor’s, master’s, and doctoral degrees from a university in the Soviet Union. The Soviet Union paid for her Russian education. Her older son is 37 years old, and he has a son, who is nine years old. Her older son and grandson live in Russia, and they are Russian citizens. Her older son has worked as a

listed above. chemist for about 16 years at the same research facility where Applicant worked for 23 years, when she lived in Russia. The research facility is a government-related facility that is connected to the generation of nuclear power. She communicates with her son and his family in Russia every week. He visited Applicant in the United States in January 2012. The risk that Applicant’s family living in Russia faces in the event that the Russian Government, terrorists, or criminals discover Applicant’s relationship to them is due to Applicant’s emotional ties to her son and his family. Should these elements discover their connections to Applicant, his family living in Russia would face an increased probability of threats and coercion. Her son and grandson continue to be vulnerable should these Russian lawless elements seek to harm them.

A Guideline B decision concerning Russia must take into consideration the geopolitical situation in Russia, as well as the dangers existing in Russia.5 Russia is a dangerous place because of violence from Russian Government agents, intelligence services, criminals, and terrorists. These elements continue to threaten the interests of the United States, and those who cooperate and assist the United States. The United States and Russia are allies in the war on terrorism, and the United States and Russia share many interests, such as limitations on the control of nuclear weapons and materials. Russia and the United States have close relationships in many areas of diplomacy and trade. When all these factors are weighed, there continues to a heightened risk that lawless Russian elements will attempt to coerce family members of security clearance holders to obtain classified or sensitive information. Applicant mitigated the foreign preference security concern; however, she has not fully mitigated the foreign influence security concern.

FORMAL FINDINGS

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

Paragraph 1, Guideline B: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: For Applicant

Paragraph 2, Guideline C: FOR APPLICANT

Subparagraph 2.a and 2.b: For Applicant

CONCLUSION

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

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 DOHA acted under 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 (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on September 1, 2006. 2ISCR Case No. 03-04300 (App. Bd. Feb. 16, 2006) describes a protracted process for revocation of Russian citizenship, and states, “According to Russian Federation Law, Applicant's citizenship will be ‘irrevocably annulled by the decision of the presidential committee’ which takes up to six months.” The rules for Russian citizenship revocation may be different now than when ISCR Case No. 03-04300 was heard in 2004 or 2005.

3 Applicant has not had any contacts or connections to Belarus or people living in Belarus for more than 10 years. Accordingly there is no reason to discuss the country of Belarus in this decision. 4The SOR did not allege Applicant retained or used a Russian passport after becoming a U.S. citizen. The SOR did not allege that Applicant’s son has worked as a chemist for about 16 years at the same research facility where Applicant worked for 23 years, when she lived in Russia. The research facility is a government-related facility that is connected to the generation of nuclear power. In ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006) the Appeal Board listed five circumstances in which conduct not alleged in an SOR may be considered stating: (a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under Directive Section 6.3. (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003)). I have limited my consideration of these two non-SOR allegations to the five purposes 5See 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).