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ISCR Case 11-15256.h1 — CASE

ISCR Case 11-15256.h1granted

Case Headnote

ISCR Case No. 11-15256.h1

grantedFeb 5, 2013· Hon. Richard A. Cefola· hearing

Summary

A U.S. citizen, born in Afghanistan in 1959, was granted a security clearance despite concerns under Guideline B (Foreign Influence). The applicant's natural father held a position as a Deputy Minister in the Afghan government in 1978. The applicant's parents divorced before his birth, and he was raised by his paternal grandparents in Afghanistan.

He immigrated to the United States in 1979 at age 20 and became a U.S. citizen in 1997. The applicant had no contact with his natural father for 25 years after immigrating, and subsequent contact has been infrequent, with the last two conversations occurring approximately six and a half months and one year prior to the decision. He maintains no other connection with his father, who remains an Afghan citizen and resident.

The decision to grant the clearance was based on the applicant's long-standing residency and citizenship in the U.S., his minimal contact with his father, and his honorable service since 2011 as a translator for the U.S. Marines in Afghanistan.

Why the Applicant Prevailed

The applicant has lived in the U.S. since age 20 and became a citizen in 1997.
He has minimal contact with his father, who is a citizen and resident of Afghanistan.
The applicant serves honorably as a translator for the U.S. Marines in Afghanistan.

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 issuedAug 15, 2012
Answer filedSep 8, 2012
Hearing heldDec 27, 2012
Decision dateFeb 5, 2013

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Service in Military for Security Clearance
Limited Foreign Contacts as a Mitigating Factor in Security Clearance Cases

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant's foreign influence concerns were mitigated due to his deep ties to the United States and minimal contact with his foreign national father. The applicant's service as a translator for the U.S. Marines further supported his eligibility for a security clearance, leading to a decision in his favor.

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. Military or Government Service

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The Applicant was born in Afghanistan in 1959. His mother and his father “were divorced when she was pregnant” with the Applicant. His mother “remarried” an American, “right after . . . [the Applicant] was born.” His mother and step-father left for the United States, without the Applicant; and as a result, the Applicant was raised by his paternal grandparents in Afghanistan. The Applicant came to the United States in 1979, as a 20 year old, and became a U.S. citizen in 1997. The Applicant’s 86 year old natural father was a “Deputy Minister” in the Afghan government in “1978,” 35 years ago. Once he immigrated to the United States, the Applicant had no contact with his natural father “for 25 years.” The last time the Applicant spoke to his father was “about six and a half months ago,” and before that “another year” ago. Other than these infrequent contacts, the Applicant avers that he has “no connection” with his natural father, who is a citizen and resident of Afghanistan. Since 2011, the Applicant has been a translator for the U.S. Marines who form a “Provincial . . . Advisory Team.	For Applicant	Parent in Foreign Country Immediate Family GOVT-AFFILIATED	Afghanistan 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	(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.	Credited Deep U.S. Ties Credited U.S. Military Service

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. 11-15256 ) ) Applicant for Security Clearance )

For Government: Melvin A. Howry, Esquire, Department Counsel For Applicant: Pro se

February 5, 2013

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

The Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on April 17, 2011. On August 15, 2012, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline B 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 soon thereafter. He answered the SOR in writing on September 8, 2012, and requested a hearing before an Administrative Judge. DOHA received the request on November 5, 2012, and I received the case assignment on December 19, 2012. DOHA issued a notice of hearing same date, and I convened the hearing as scheduled on December 27, 2012. The Government offered Exhibits (GXs) 1 and 2, which were received without objection. The Applicant testified on his own behalf and submitted Exhibit (AppX) A, which was received without objection. DOHA received the transcript of the hearing (TR) on January 8, 2013. I granted the Applicant’s request to keep the record open until January 25, 2013, to submit additional matters. On January 8, 2013, he submitted Exhibit B, which was received without objection. The record closed on January 25, 2013. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

Procedural and Evidentiary Rulings

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 Subparagraph 1.a. of the SOR.

Guideline B - Foreign Influence

1.a. The Applicant was born in Afghanistan in 1959. (GX 1 at page 5.) His mother and his father “were divorced when she was pregnant” with the Applicant. (TR at page 29 lines 2–8.) His mother “remarried” an American, “right after . . . [the Applicant] was born.” (TR at page 48 line 25 to page 49 line 10). His mother and step- father left for the United States, without the Applicant; and as a result, the Applicant was raised by his paternal grandparents in Afghanistan. (Id, and TR at page 31 line 23 to page 32 line 3.)

The Applicant came to the United States in 1979, as a 20 year old, and became a U.S. citizen in 1997. (TR at page 34 lines 16–18, at page 36 lines 7–13, and GX 1 at page 7.) The Applicant’s 86 year old natural father was a “Deputy Minister” in the Afghan government in “1978,” 35 years ago. (TR at page 47 lines 1–22.) Once he immigrated to the United States, the Applicant had no contact with his natural father “for 25 years.” (TR at page 47 line 23 to page 48 line 15.) The last time the Applicant spoke to his father was “about six and a half months ago,” and before that “another year” ago. (Id.) Other than these infrequent contacts, the Applicant avers that he has “no connection” with his natural father, who is a citizen and resident of Afghanistan. (TR at page 49 line 21 to page 50 line 1.)

Since 2011, the Applicant has been a translator for the U.S. Marines who form a “Provincial . . . Advisory Team.” (TR at page 40 lines 1–10.) The Director of the Team, a Marine Colonel, and the Deputy Director, a Marine Lieutenant Colonel, speak most highly of the Applicant’s contributions. (AppX A.) The Marine Corps Colonel sums up the Applicant’s contribution best, “He is a true American answering the call to his Country, when in need.” (AppX A at page 1.)

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 natural father is a citizen and resident of Afghanistan, and was a Deputy Minister there, 35 years ago. 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 20, is a U.S. citizen, and serves the U.S. military in Afghanistan. He has little contact with his 86 year old father, who had little or no part in the Applicant’s upbringing. Furthermore, I find the Applicant cannot be coerced by the government of Afghanistan or any other government vis-a-vis his father.

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 honorably and well in Afghanistan. He is highly touted by Marine Corps superiors with whom he serves. (AppX A.)

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

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