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ISCR Case 12-07670.h1 — CASE

ISCR Case 12-07670.h1denied

Case Headnote

ISCR Case No. 12-07670.h1

deniedApr 25, 2013· Hon. James F. Duffy· hearing

Summary

A 57-year-old naturalized U.S. citizen and linguist, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed from extensive family ties in Afghanistan, including a mother, three sisters, and two uncles, all of whom are citizens and residents of Afghanistan. The applicant also has eight nephews who are citizens and residents of Afghanistan, and maintains close contact with an individual who is a citizen of Afghanistan and resident of Denmark.

Further concerns were raised regarding the applicant's deceased brother, who was a leader in "Organization M," a part of the Northern Alliance. The applicant admitted to being a member of Organization M. Additionally, one uncle serves as a general in the Afghanistan National Army, and another uncle formerly served in the Ministry of Finance of Afghanistan.

The judge determined that the applicant's close contacts and financial support to family members in Afghanistan, combined with the family's connections to the Afghan government and other organizations, created a heightened risk of foreign influence. These factors, along with the applicant's admissions, led to the denial of the security clearance.

Why the Applicant Was Denied

The applicant has extensive family ties in Afghanistan, including a mother, three sisters, and two uncles, which raised security concerns under Guideline B.
The applicant maintains close contact with his family in Afghanistan and provides financial support, creating a potential for foreign influence.
The applicant's admissions regarding his family's connections to Afghanistan and the nature of the Afghan government contributed to the denial.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family MembersThe applicant's close family ties in Afghanistan create a heightened risk of foreign exploitation.
AG ¶ 7(b)raisedConnections to Foreign PersonsThe applicant's connections to family members in Afghanistan create a potential conflict of interest.

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedAug 22, 2012
Answer filedSep 14, 2012Applicant did not elect to have a hearing.
Hearing heldMar 20, 2013
Decision dateApr 25, 2013

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Family Ties in Foreign Countries on Security Clearance Eligibility
The Importance of Financial Support to Foreign Relatives 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: denied

The judge found against the applicant on several allegations related to foreign influence due to the applicant's close family ties in Afghanistan, which raised concerns about divided loyalties. However, some allegations were found in favor of the applicant, indicating that not all foreign ties were deemed problematic. Ultimately, the applicant's request for a security clearance was denied.

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother, three sisters, two sisters-in-law, and four brothers-in-law are citizens and residents of Afghanistan	Against Applicant	Parent in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.b	Applicant’s mother, three sisters, two sisters-in-law, and four brothers-in-law are citizens and residents of Afghanistan	Against Applicant	Sibling in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.c	Applicant’s mother, three sisters, two sisters-in-law, and four brothers-in-law are citizens and residents of Afghanistan	Against Applicant	In Law in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.d	Applicant’s mother, three sisters, two sisters-in-law, and four brothers-in-law are citizens and residents of Afghanistan	Against Applicant	Extended Family in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.e	Applicant’s deceased brother was a leader of an organization (hereafter referred to as “Organization M”), which was part of the Northern Alliance	For Applicant	Unspecified Foreign Relationship Other	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.f	Applicant has been and remains a member of Organization M	For Applicant	Unspecified Foreign Relationship Other	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.g	Applicant’s uncle is a citizen and resident of Afghanistan and serves as a general in the Afghanistan National Army	Against Applicant	Unspecified Foreign Relationship Immediate Family GOVT-AFFILIATED	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.h	Applicant’s other uncle is a citizen and resident of Afghanistan and formerly served in the Ministry of Finance of Afghanistan	Against Applicant	Unspecified Foreign Relationship Immediate Family GOVT-AFFILIATED	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.i	Applicant has eight nephews who are citizens and residents of Afghanistan	Against Applicant	Extended Family in Foreign Country Extended Family	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.j	Applicant has close contact with an individual who is a citizen of Afghanistan and resident of Denmark	For Applicant	Friend in Foreign Country Friend	Denmark	Admitted	—	—	—

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. 12-07670 ) Applicant for Security Clearance )

For Government: Eric Borgstrom, Esq., Department Counsel For Applicant: Pro se

04/25/2013 ______________

STATEMENT OF CASE

______________

DUFFY, James F., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline B (Foreign Influence). Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On August 22, 2012, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing the security concerns under Guideline B. This 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) implemented on September 1, 2006.

On September 14, 2012, Applicant answered the SOR and did not elect to have a hearing. Department Counsel received Applicant’s case file on October 1, 2012; requested a hearing on that date; and submitted a ready-to-proceed notification on November 29, 2012. The case was assigned to me on February 25, 2013. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 25, 2013. The hearing was held as scheduled on March 20, 2013. At the hearing, Department Counsel offered Government Exhibits (GE) 1 through 3. Department Counsel’s list of exhibits was marked as Hearing Exhibit (HE) 1. In HE 2, Department Counsel requested that I take administrative notice of facts concerning Afghanistan, which was granted without objection. Applicant offered Applicant Exhibits (AE) A through E. All exhibits were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on March 27, 2013.

FINDINGS OF FACT

SOR and Applicant’s Answer to the SOR

The SOR contained ten Guideline B allegations. These allegations asserted that Applicant’s mother, three sisters, two sisters-in-law, and four brothers-in-law are citizens and residents of Afghanistan (SOR ¶¶1.a – 1.d); that Applicant’s deceased brother was a leader of an organization (hereafter referred to as “Organization M”), which was part of the Northern Alliance (SOR ¶ 1.e); that Applicant has been and remains a member of Organization M (SOR ¶ 1.f); that Applicant’s uncle is a citizen and resident of Afghanistan and serves as a general in the Afghanistan National Army (SOR 1.g); that Applicant’s other uncle is a citizen and resident of Afghanistan and formerly served in the Ministry of Finance of Afghanistan (SOR ¶ 1.h); that Applicant has eight nephews who are citizens and residents of Afghanistan (SOR ¶ 1.i); and that Applicant has close contact with an individual who is a citizen of Afghanistan and resident of Denmark (SOR ¶ 1.j). In his Answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.a – 1.e, 1.g, 1.h, 1.i, and 1.j. Most of his admissions contained explanatory comments. His admissions are incorporated as findings of fact.1

Applicant’s Background and Foreign Contacts

Applicant is a 57-year-old linguist employed by a defense contractor. He has worked for his current employer since August 2011. He earned a bachelor’s degree in physics from an Afghan university in 1977 and a master’s degree in physics from a U.S. university in 1986. He has been married twice. His first marriage began in January 1981 and ended in divorce in March 1994. He married his current wife in April 1996. His current wife was born in Afghanistan and is a naturalized U.S. citizen. He has six children, ages 4, 5, 10, 15, 23, and 27, who were all born in the United States. This is the first time that he has sought to obtain a security clearance.2 Applicant was born in Afghanistan. He does not know his exact date of his birth, because birth certificates were not produced where he was born. From information provided by his grandmother, he approximated his birthday. He lived in Afghanistan until December 1978 and then fled to Iran because he did not agree with the communist way of life, refused to join the communists, and, as a result, feared for his life in Afghanistan. He first sought refuge in Iran because it was not far from his home. He worked as a laborer in Iran and stayed there for about five months. He left Iran because he felt threatened by the Iranian government and two Mujahideen organizations that were present there. He hid from those organizations because they were taking men back to Afghanistan to fight on their behalf. He next traveled to Pakistan and stayed there from May 1979 to January 1981.3

In Pakistan, Applicant worked for Organization M, which he described as a more moderate Mujahideen organization. For example, it supported educating women and giving women the right to vote. He stated that he had no choice other than to work for Organization M, but noted that he did not agree with all of its policies. His work for that organization consisted of obtaining aid for people. Specifically, he would obtain information from people and pass it to various offices so that they could receive food, clothing, and other items. At that time, Organization M was involved in fighting the communists back in Afghanistan, but he never participated in that fighting. Organization M later became part of the Northern Alliance, which assisted U.S. forces in military operations in Afghanistan, and it is now part of the Afghanistan government. In January 1981, he married his first wife, a native-born U.S. citizen, in Pakistan and immigrated to the United States that same month. Since then, he has resided in the United States. He became a naturalized U.S. citizen in June 1985. He stated that he has not had any contact with Organization M since he left Pakistan in 1981.4

Applicant’s father was a farmer who passed away in about 1985. His father was required to serve in the military and, because he was educated, served as a junior officer. His mother is still living and is about 78 years old. She is a citizen and resident of Afghanistan. She never worked outside the home. When Applicant is in the United States, he generally talks to her on the telephone about once a month, sometimes once a week, but the telephone service there is not reliable. He provides her about $2,000 to $4,000 per year for her support.5

Applicant had two older brothers. Both are deceased. His oldest brother was a colonel in the Afghan Air Force. He retired from the military in the early 1980s, then worked as an engineer, and passed away from natural causes in 2011. He was married and his wife is a citizen and resident of Afghanistan. Applicant does not have any contact with his oldest brother’s wife or her children. His younger brother passed away from natural causes in 2010. SOR ¶ 1.e indicated that his younger brother “was a leader of [Organization M].” During a counterintelligence interview in August 2011, Applicant reportedly stated that his younger brother was a “leader” of that organization and was a general in the army. While in the summary of his Office of Personnel Management (OPM) interview, he reportedly stated that his younger brother helped organize a national organization. It is not known whether Organization M and that national organization are the same organization or somehow related. In his Answer to the SOR, Applicant admitted the allegation in SOR ¶ 1.e, but added the following comment: “I deny. However, [my younger brother] work[ed] for [Organization M] as an officer who did not have any decision making ability and soon after Northern Alliance took power, he retired.” At the hearing, he testified that his younger brother held a rank between captain and major in the Afghan military, and left the military in about 1979. He later served as a military trainer for Organization M and people referred to as “general” out of respect because he was older and educated. Applicant stated that he did not know the rank that his younger brother held with Organization M. For about a year while Applicant was affiliated with Organization M in Pakistan (May 1979 to January 1981), he had contact with his younger brother there. His younger brother’s wife is a citizen and resident of Afghanistan. Applicant had telephonic contact with her about once a year until his brother passed away. His younger brother had about five children, but Applicant has never met them and has no contact with them.6

Applicant had seven sisters. Three of them are deceased. Three of his living sisters are citizens and residents of Afghanistan. They are married and have children. None of their husbands work for the Afghan government or are affiliated with the Mujahideen. His fourth living sister is a citizen of Afghanistan and a resident of Denmark. She works as a nurse’s assistant. She is married with two children. Her family has lived in Denmark for about 10 to 15 years and has permanent resident status there. Applicant has telephonic contact with his sisters about once a month.7

Applicant’s wife has two sisters and two brothers. One of her sisters is a citizen of Afghanistan who is married to a U.S. citizen, and resides in Germany. The other sister is a U.S. citizen who resides in the United States. One of her brothers is a citizen and resident of Afghanistan and works as a tailor. The other brother was captured in the mid-1980sand has not been heard from since then. In GE 2, Applicant listed ten nieces and nephews. Eight of them are citizens and residents of Afghanistan. Two are citizens of Afghanistan and residents of Denmark.8

Applicant’s father-in-law passed away in about 2007. He had worked for the Afghan Ministry of Agriculture and also served as an officer in the Afghan Army for about 27 years. His mother-in-law is living and resides in Denmark. She was a teacher who worked for the Afghan Ministry of Education.9

Applicant had an uncle who worked for the Supreme Court in the Afghan Ministry of Justice and who passed away in about 2003. Another uncle worked for the Afghan Ministry of Finance, but is now retired. A third uncle served as a general in the Afghan Army and left the military before the communists came to power. This third uncle became a taxi driver and later worked for the Northern Alliance in the Ministry of Defense by assisting the U.S. build up the Afghan military and police force. Applicant does not know whether this uncle is still working. These two living uncles are citizens and residents of Afghanistan. In his Answer to the SOR, Applicant indicated that he had contact with them about once or twice a year. At the hearing, he testified that he had contact with them about two to seven times a year. In his counterintelligence interview, he indicated that he had monthly contact with his uncle who worked for the Ministry of Defense.10

During the counterintelligence interview, Applicant listed an acquaintance as his “guardian.” This individual is his wife’s grandfather who is a citizen of Afghanistan and resident of Germany. The SOR incorrectly listed his residence as Denmark. He worked for the Afghan Government as a general manager of imports and is now retired. Applicant talks to him on the telephone about twice a month.11

Applicant visited Afghanistan for about a month in 2006. While there, he visited with his mother, brothers, and other family members. Since then, he has not returned to visit family members. His mother lived with him in the United States for a year in about 1992. None of his brothers and sisters has visited him in the United States. When his father passed away, he inherited a piece of property valued at about $5,000 to $10,000, but gave that property to his mother and sister. He does not own any property in Afghanistan. He owns a house in the United States that he purchased for about $100,000. He has paid off the mortgage loan on that house.12

Character Evidence

Applicant has worked for military detachments in Afghanistan. He has received a number of certificates of appreciation for his dedication and outstanding performance of duty. At that hearing, Applicant testified that he has been on patrols with the detachments and has served as a translator for meetings between U.S. and Afghan authorities. He has not been in combat. On one occasion, a U.S. Marine was killed in combat action about a mile from his location. He indicated that he has been exposed to improvised explosive devices (IEDs) or other potential attacks while on those patrols.13

Afghanistan14

Afghanistan became an independent nation in 1919. A monarchy ruled until a military coup in 1973. Following a Soviet-supported coup in 1978, a Marxist government emerged. In December 1979, Soviet forces invaded and occupied Afghanistan. Afghan freedom fighters, known as Mujahideen, opposed the communist regime. The resistance movement eventually led to an agreement known as the Geneva Accords, signed by Afghanistan, Pakistan, the United States, and the Soviet Union, which ensured Soviet forces withdrew by February 1989.

The Mujahideen were not a party to the negotiations for the Accords and refused to accept them. As a result, a civil war continued after the Soviet withdrawal. In the mid- 1990s, the Taliban rose to power largely due to anarchy and the division of the country among warlords that arose after the Soviet withdrawal. The Taliban sought to impose an extreme interpretation of Islam on the entire country and committed massive human rights violations. The Taliban also provided sanctuary to Osama Bin-Laden, Al Qaida, and other terrorist organizations.

After the September 11, 2001, terrorist attacks in the United States, the Taliban rejected U.S. demands to expel Bin-Laden and his followers from Afghanistan. U.S. forces and a coalition partnership commenced military operations in October 2001 that forced the Taliban out of power in November 2001. After a few years of control by an interim government, the first democratic election took place in 2004, and a second round took place in 2009. Despite progress made since the Taliban was disposed, Afghanistan still faces many daunting challenges. Among these challenges are: defeating terrorists and insurgents; recovering from over three decades of civil strife; and rebuilding a shattered physical, economic, and political infrastructure.

Afghanistan’s human rights record remains poor. Human rights problems included extrajudicial killings; torture and other abuse; poor prison conditions; widespread official impunity; ineffective government investigations of abuses by local security forces; arbitrary arrest and detention; prolonged pretrial detention; judicial corruption; violations of privacy rights; restrictions on freedom of the press; limits on freedom of assembly; restrictions on freedom of religion, including on religious conversions; limits on freedom of movement; official corruption; violence and societal discrimination against women; sexual abuse of children; abuses against minorities; trafficking in persons; abuse of worker rights and child labor. There were numerous reports of the government – or its agents – committing arbitrary or unlawful killings. Despite some tactical defeats and operational setbacks, the Taliban-led insurgency continues to threaten U.S. and international goals in Afghanistan. The insurgents retain the capability and intent to conduct high-profile attacks that have had a disproportionate effect on local and international perceptions of security. Although there have been some improvements in the Afghan military and police forces, progress is slow and uneven. Predatory corruption – extortion, land seizures, illegal checkpoints, kidnapping, and drug trafficking that threaten local communities and authority structures – has fueled the insurgency and is detrimental to the Afghan people’s perception of their government and to the international community’s objectives.

Criminal networks and narcotics cultivation constitute a source of funding for the insurgency in Afghanistan. Streams of Taliban financing from across the border in Pakistan, along with funds gained from narcotics trafficking and kidnapping, have allowed the insurgency to strengthen its military and technical capabilities. Instability along the Pakistan-Afghan frontier also continued to provide Al-Qaida with the opportunity to conduct training, planning, and targeting of Western European and U.S. interests.

The U.S. Department of State warns that the security threat to U.S. citizens in Afghanistan remains critical. Travel in all areas of Afghanistan is unsafe due to military combat operations, landmines, banditry, armed rivalry between political and tribal groups, and the possibility of terrorist attacks. Numerous high-profile Afghan government officials were assassinated in 2011. No part of Afghanistan is immune from violence. Even the Afghan capital, Kabul, is considered at high risk for militant attacks, including rocket attacks, vehicle-borne IEDs, and suicide bombings.

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 AG 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 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. 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 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 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

AG ¶ 6 expresses the 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 security concerns and may be disqualifying. I have considered all of them, and the following disqualifying conditions potentially apply: (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.

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 could be sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. In this case, Applicant’s mother, three sisters, two sisters-in-law, four brothers-in-law, two uncles, and numerous nieces and nephews are citizens and residents of Afghanistan. He maintains close contact with his mother and sisters and regularly sends his mother money. He has contact with his uncles two to seven times a year. Those continuing, close contacts are sufficient to raise Guideline B security concerns.

The nature of a nation’s government, its relationship with the U.S., 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 unstable government or subject to terrorist activity. Insurgency operations are being conducted in Afghanistan against Afghan and U.S. forces. There is also evidence that Afghanistan has a poor human rights record and has active terrorist groups operating within its borders. This places the burden of persuasion on Applicant to demonstrate that his contacts in Afghanistan do not pose a security risk and that he will not be placed in a position of having to choose between his loyalty to the U.S. and his family members. With Afghanistan’s negative human rights record, its unstable government, and the violent insurgency being conducted within its borders, it is conceivable that Applicant’s family members could be vulnerable to coercion. The dangerous circumstances that exist in Afghanistan create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. I find that both of the above disqualifying conditions apply in this case.

I have also analyzed all of the facts and considered all of the mitigating conditions under AG ¶ 8. The following mitigating conditions potentially apply:

(a) the nature of the relationship 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 and 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 interests in favor of the U.S. interests; and

(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.

From May 1979 to January 1981 while living in Pakistan, Applicant was affiliated with Organization M, which was part of the Mujahideen. He worked for that organization, but never engaged in fighting for it. He indicated that he did not agree with all of its policies. He provided varying accounts about his younger brother’s involvement in that organization. In his counterintelligence interview, he indicated that his younger brother was a leader of that organization and a general in the army. In his OPM interview, he indicated that his younger brother helped organize a national organization. At the hearing, however, he indicated that his younger brother was a military trainer for Organization M, that he had no decision-making authority, and that he was referred to as “general” out of respect for his age and education. Organization M eventually became part of the Northern Alliance and part of the current Afghan government. Applicant’s younger brother passed away in 2010. Applicant stated that he has not had contact with Organization M since he left Pakistan in 1981. Given the death of Applicant’s younger brother and Applicant’s lack of contact with Organization M for over 30 years, I find in favor of Applicant on SOR ¶¶ 1.e and 1.f.

Applicant’s contacts with his immediate family members in Afghanistan are not casual, infrequent, or minimal. Of note, he maintains regular contact with an uncle who works for the Afghan Ministry of Defense and who served as a general in the army. Given his close family contacts in Afghanistan and the poor security conditions in that country, Applicant could be placed in a position of having to choose between the interests of his foreign family members and the interests of the United States. AG ¶ 8(a) and 8(c) do not apply to his family members in Afghanistan, but do apply to his wife’s grandfather (SOR ¶1.j) who resides in Germany.

Applicant came to United States in January 1981 and became a U.S. citizen in June 1985. His wife was born in Afghanistan and became a U.S. citizen. His six children are native-born U.S. citizens. He has no financial holdings in Afghanistan. He owns a home in the United States worth about $100,000. Applicant has deep and longstanding relationships and loyalties in the United States. Likewise, he has deep and longstanding relationships and loyalties in Afghanistan. While he would likely resolve any conflict of interest in favor of the U.S. interests, his Afghanistan interests remain a security concern. AG¶ 8(b) partially applies.

In cases of this nature, an additional analysis is necessary. The Appeal Board has stated: As a general rule, an applicant’s prior history of complying with security procedures and regulations is considered to be of relatively low probative value for the purposes of refuting, mitigating, or extenuating the security concerns raised by that applicant’s more immediate disqualifying conduct or circumstances. However, the Board has recognized an exception to that general rule in Guideline B cases, where the applicant has established by credible, independent evidence that his compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant had made a significant contribution to the national security. The presence of such circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report a foreign power’s attempts at coercion or exploitation.15

Applicant has served on U.S. patrols in Afghanistan. While he has not been in combat or direct fire situations, he has been exposed to potential IED or other attacks while on those patrols. Applicant’s performance of duties in support of U.S. forces in Afghanistan has been laudable, but such actions do not rise to the level that would mitigate the security concerns in this case.

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. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment. Applicant has been a U.S. citizen for about 28 years. For the past 20 months, he has served as a translator for U.S. forces in Afghanistan and performed those duties in an outstanding manner. Nevertheless, he has extensive family contacts in Afghanistan that create security concerns. Those security concerns are not mitigated by the evidence that Applicant has presented. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising under the foreign influence guideline.

FORMAL FINDINGS

Formal findings 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

Subparagraphs 1.a-1.d: Against Applicant Subparagraphs 1.e-1.f: For Applicant Subparagraphs 1.g-1.i: Against Applicant Subparagraph 1.j: For Applicant

CONCLUSION

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

_____________________________ James F. Duffy Administrative Judge

FOOTNOTES

1 SOR and Applicant’s Answer to the SOR. 2 Tr. 8-9, 31-33, 54-59, 91; GE 1, 2. 3 Tr. 31-59, 91, 96-97, 102-104; GE 1, 2, 3. 4 Tr. 31-59, 91, 96-97, 102-104; GE 1, 2, 3. 5 Tr. 62-66; GE 2, 3. 6 Tr. 66-76, 79-80; GE 2, 3. From Applicant’s OPM interview, it appears that his younger brother deserted the Afghan military to assist in establishing Organization M. 7 Tr. 76-79, 81-82; GE 2, 3. 8 Tr. 82-85; GE 2. 9 Tr. 85-86; GE 2, 3. 10 Tr. 85-91, 97-98, 101-102; GE 2, 3. 11 Tr. 91-93; GE 2, 3. 12 Tr. 69, 75, 93-96, GE 3. 13 Tr. 59-61, 110-112; AE A-E. 14 HE 2. 15 ISCR Cases No. 06-25928 at 4 (App. Bd. Apr 9. 2008) (internal citations omitted). See also ISCR Case No. 05-03846 at 6 (App. Bd. Nov. 14, 2006) citing ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005); ISCR Case No. 02-10113 at 5 (App. Bd. Mar. 25, 2005); ISCR Case No. 03-10955 at 2-3 (App. Bd. May, 30, 2006); and ISCR Case No. 04-12363 at 2 (App. Bd. July 14, 2006).