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ISCR Case 12-10336.h1 — CASE

ISCR Case 12-10336.h1granted

Case Headnote

ISCR Case No. 12-10336.h1

grantedJul 10, 2013· Hon. Noreen A. Lynch· hearing

Summary

This case involved a 37-year-old naturalized U.S. citizen, originally from Afghanistan, who sought a security clearance under Guideline B (Foreign Influence). The Statement of Reasons raised concerns due to the applicant's familial ties in Afghanistan, specifically that his father, two sisters, wife, and in-laws are citizens and residents of Afghanistan. These conditions invoked Disqualifying Conditions AG ¶ 7(a) and AG ¶ 7(b).

However, the judge applied Mitigating Conditions AG ¶ 8(a) and AG ¶ 8(b), ultimately granting the security clearance. The decision highlighted the applicant's strong ties to the United States, including his U.S. citizenship and family residing within the U.S.

Furthermore, the applicant's professional history included significant contributions to U.S. military efforts in Afghanistan, which demonstrated loyalty to the U.S. The judge also noted the applicant's limited contact with his family in Afghanistan and their lack of ties to the Afghan government, which collectively reduced the risk of foreign influence.

Why the Applicant Prevailed

The applicant demonstrated strong ties to the United States, including citizenship and family residing in the U.S.
The applicant's professional history involved significant contributions to U.S. military efforts in Afghanistan, showcasing loyalty to the U.S.
The applicant's limited contact with family in Afghanistan and their lack of government ties reduced the risk of foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with a Foreign Family Member
AG ¶ 7(b)raisedConnections to a Foreign Person That Create a Potential Conflict of Interest

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons Unlikely to Create a Conflict of Interest
AG ¶ 8(b)appliedMinimal Loyalty or Obligation to Foreign Persons

Key Rule Quoted

“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)

Procedural Posture

SOR issuedFeb 15, 2013
Answer filed—
Hearing heldJun 6, 2013
Decision dateJul 10, 2013

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Family Ties in Security Clearance Decisions
Evaluation of Foreign Contacts in the Context of an Applicant's Loyalty to the U.S.

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant's foreign ties, specifically to family members in Afghanistan, raised security concerns under Guideline B. However, the applicant successfully mitigated these concerns through evidence of his strong ties to the United States, including his naturalization, family residing in the U.S., and his commitment to serving U.S. interests. Ultimately, the judge ruled in favor of the applicant, granting him eligibility for a 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. 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 father is a citizen and resident of Afghanistan.	For Applicant	Parent in Foreign Country Immediate Family	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	Documented Deep U.S. Ties Claimed Foreign Assets Divested
1.b	Applicant has two sisters who are citizens and residents of Afghanistan.	For Applicant	Sibling in Foreign Country Immediate Family	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	Documented Deep U.S. Ties Claimed Foreign Assets Divested
1.c	Applicant’s wife is a citizen of Afghanistan.	For Applicant	Spouse Dual or Foreign Citizen Immediate Family	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	Documented Deep U.S. Ties Claimed Foreign Assets Divested
1.d	Applicant’s in-laws are citizens and residents of Afghanistan.	For Applicant	In Law in Foreign Country Immediate Family	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	Documented Deep U.S. Ties Claimed Foreign Assets Divested

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. 12-10336 ) ) Applicant for Security Clearance )

For Government: Julie Mendez, Esq., Department Counsel For Applicant: Pro se

07/10/2013 ______________

STATEMENT OF CASE

______________

LYNCH, Noreen A., Administrative Judge:

On February 15, 2013, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny Applicant a security clearance, citing security concerns under Guideline B (Foreign Influence). 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) implemented in September 2006.

Applicant received the SOR and requested a hearing before an administrative judge. The case was assigned to me on April 25, 2013. I convened the hearing as scheduled on June 6, 2013. Government Exhibits (GE) 1 through 3 were admitted in evidence without objection. Applicant testified, presented the testimony of two witnesses, and submitted one folder (AE A), which was admitted without objection. DOHA received the hearing transcript (Tr.) on June 13, 2013. Eligibility for access to classified information is granted. Procedural and Evidentiary Rulings

Department Counsel requested that I take administrative notice of certain facts relating to Afghanistan. (Tr. 15) The request and the attached documents are included in the record as Hearing Exhibit I. The facts administratively noticed are set out in the Findings of Fact, below.

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a - 1.d. His admissions are incorporated in my findings of fact. I make the following findings:

Applicant is 37 years old and was born in Afghanistan. He came to the United States in 1985, when he was eight years old. Before he left Afghanistan, his mother was killed and Applicant was gravely injured. His father took him to a field hospital in Pakistan. Applicant was brought to the United States for medical treatment. He had many operations to remove shrapnel from his body. He survived many reconstructive surgeries. After the operations and therapy, Applicant was able to walk again.

Applicant lived with a U.S. guardian in the United States. He had no contact with his father in Afghanistan. Applicant graduated from an American high school, and he received his undergraduate degree in 2005. Applicant became a naturalized American citizen in 2004. He married in 2010. His wife was also born in Afghanistan, but she is in the process of becoming a naturalized U.S. citizen. (AE A) He and his wife have one child from their marriage. (GX 1)

In May, 2004, Applicant was employed as a cultural advisor by a language school in Afghanistan. He was granted a secret clearance. For periods of time from late 2005 until October 2006, Applicant served with the U.S. Army Special Forces as a category 2 interpreter. He received a favorable recommendation from the commander. Applicant was described as having a unique ability to communicate clearly and with clarity. He has an excellent command of Farsi, Dari, and Pashto languages. Applicant displayed a very good understanding of the different cultures in Afghanistan and is able to educate those around him. He was always willing to assist the detachment. His demeanor and professionalism made him a valuable asset to the team. Applicant understands the dynamics of multiple cultures and levels of command that had a positive impact to various locations. (GX 2)

In February 2007, Applicant was hired by a defense contractor. After training for four months, Applicant was deployed to Afghanistan in July 2007. (Tr. 80) Applicant worked as a human terrain systems analyst to provide combat brigade commanders with relevant socio-cultural information and analysis to assist in operational planning. Applicant worked in this position in Afghanistan until 2008. Applicant was praised for his Pashto and Dari translations of conversations between village elders, the local population, and team members. The senior social scientist, US Army, described Applicant as an extraordinarily pleasant and dedicated man who is driven to succeed. (GX 2)

In August 2009, Applicant returned to work in Afghanistan with the Department of State as a public diplomacy officer. (Tr. 89) Applicant provided information concerning the development of roads, hospitals, clinics, and other public works by the U.S. (Tr. 90) He remained in country until July 2010. Applicant saw his father once in 2010. He also saw his two sisters.

The SOR alleges security concerns based on Applicant’s family in Afghanistan. His father and his two sisters are citizens and residents of Afghanistan. Applicant’s wife is a citizen of Afghanistan. Applicant’s in-laws are citizens and residents of Afghanistan.

Applicant’s wife was born in Afghanistan. She now lives with him and their child in the United States. His father introduced Applicant to his wife in 2006. Applicant met his wife in 2006, 2008, and 2010. Applicant wanted a wife and a family and he agreed to an arranged marriage. (Tr. 98) Applicant’s wife, as noted above, is beginning the process to become a U.S. citizen. (Tr. 69) She returned to Afghanistan in 2012 to see her family. Applicant was working there, but was called back due to the security clearance issue. She followed him to the United States. (Tr. 112)

Applicant’s father is a citizen and resident of Afghanistan. He is a farmer in a small province. Applicant had not seen or spoken to his father since leaving Afghanistan as an injured child until 2006. He now calls him monthly. (GX 1) Applicant provides some financial support to his father as he is the eldest child and this is part of his cultural heritage. He estimates that he provides $1,200 a year to his father. Applicant’s father has no connection with the government in Afghanistan.

Applicant has two sisters who are citizens and residents of Afghanistan. They are married and do not work outside the home. Applicant does not maintain contact, but he saw them in 2006 when he was working in Afghanistan. They do not know anything about the nature of Applicant’s work.

Applicant’s father-in-law is a teacher in a small village in Afghanistan. Applicant’s mother-in-law is also a citizen and resident of Afghanistan. They have no connection with the government in Afghanistan. Applicant’s wife calls her mother occasionally.

Applicant has no property in Afghanistan. He has no desire to permanently return to the country. Applicant owns a home in the United States. He has substantial assets in the United States. (GX 2)

At the hearing, Applicant was passionate about his feelings for the United States. He related that he is an American in every sense, and his wife will become a citizen as soon as she is eligible. His daughter was born in the United States. He wants to continue serving the United States through his work in utilizing his unique skills to help the United States bring peace and stability to a troubled part of the world.

Applicant’s linguistic and cultural advisory skills have won him much praise during his years working with the U.S. military. Applicant asserted his pride of U.S. citizenship and love for his work with the Army. He went on missions with the U.S. Army. He has willingly put himself in danger every day for years in order to help the United States. Applicant emphasized that he would never betray the United States. He wants to “give back” to the United States.

There is no evidence in the record that Applicant breached any security policies or procedures while in Afghanistan. He has letters of appreciation for his work in Afghanistan. (AE A)

Applicant has been with his current employer since 2010. Applicant’s senior linguistic coordinating officer commended Applicant on his performance. There has never been an issue in Applicant’s handling of sensitive information. He consistently exercises patience, perseverance, and professionalism in all assigned tasks. He is dependable, exercises good judgment, and has a mature outlook concerning his endeavors. He is a team player and is committed to excellence. He is well respected by his peers and superiors alike. (AE A) Applicant presented three awards and certificates of appreciation for service in Afghanistan in 2010-2011. (AE A)

At the hearing, a government affairs officer, testified that he has known Applicant since 1987. He first met Applicant when a U.S. congressman was introduced to Applicant who was speaking to groups throughout the United States about the political situation in Afghanistan. Applicant testified before Congress and met the President. The witness helped Applicant gain political asylum in the United States. He believes Applicant to be steadfast in his devotion and loyalty to the United States. He understands that Applicant has visited his father while working in Afghanistan and that he married someone from his village in Afghanistan. (Tr. 33-36)

Another witness, a graduate of West Point (a retired U.S. Army officer), testified that Applicant was introduced to him in the 1980's. He and his wife became the guardians for Applicant. Applicant lived with them until he graduated from high school. He described Applicant as a remarkable young man who wanted to serve the United States by working for a contractor in Afghanistan. He has taken risks and is an outstanding man. The witness served in Afghanistan in 2011-2012 with Applicant. He commented on Applicant’s courage, tenacity, and capability working with Special Forces. Applicant has willingly risked his life in order to serve the United States. (Tr. 50-58)

Administrative Notice

I take administrative notice of the following facts about Afghanistan, including the fact that Afghanistan has been an independent nation since August 19, 1919, after the British relinquished control. A monarch ruled from 1919 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 mujaheddin, opposed the communist regime. The resistance movement eventually led to an agreement known as the Geneva Accords, signed by Pakistan, Afghanistan, the United States, and the Soviet Union which ensured Soviet forces withdrew by February 1989.

The mujaheddin were not a party to the negotiations for the Accords and refused to accept them. As a result, civil war continued after the Soviet withdrawal. In the mid 1990s, the Taliban rose to power largely due to the anarchy and warlordism 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 Qa’ida, and other terrorist organizations.

After the September 11, 2001 terrorist attacks, demands to expel Bin Laden and his followers were rejected by the Taliban. U.S. forces and a coalition partnership commenced military operations in October 2001 that forced the Taliban out of power by November 2001. A new democratic government took power in 2004. Despite progress made since the Taliban was deposed, 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.

The Taliban, Al-Qa’ida, other insurgent groups, and anti-Coalition organizations continue to operate in Afghanistan, resulting in numerous attacks and deaths. Insurgents have targeted non-governmental organizations (NGOs), Afghan journalists, government workers, and UN workers. Instability along the Pakistan-Afghan frontier continued to provide al-Qa’ida with leadership mobility and the ability to conduct training and operational planning, targeting Western Europe and U.S. interests in particular. Kabul, in particular, has seen a rise in militant attacks, including rocket attacks, vehicle borne improvised explosive devices (IEDs), and suicide bombings.

At this time, the risk of terrorist activities remains extremely high. The country’s human rights record remains poor and violence is rampant. According to recent reports from the U.S. Department of State, insurgents continue to plan attacks and kidnappings of Americans and other Western nationals. Travel warnings are ongoing. Overall, the State Department has declared that the security threat to all American citizens in Afghanistan remains critical as no part of Afghanistan is immune from violence.

The United States supports the efforts of the Afghan Government to establish a vibrant civil society, one that emphasizes democratic principles through a rule of law and creates accountable and transparent forms of government. The United States and its international partners remain committed to helping Afghans realize their vision for a country that is stable, democratic, and economically successful, and to an Afghan Government committed to the protection of women’s rights, human rights, and religious tolerance.

On May 2, 2012, the United States and Afghanistan signed the Enduring Strategic Partnership Agreement between the Islamic republic of Afghanistan and the United States of America, a 10-year-strategic partnership agreement (SPA) that demonstrates the United States’ enduring commitment to strengthen Afghanistan’s sovereignty, stability, and prosperity and continue cooperation to defeat al-Qaida and its affiliates.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has “the authority to . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “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 and modified.

Eligibility for a security clearance is predicated upon an applicant meeting the criteria contained in the adjudicative guidelines (AG). These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to protect classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of an applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is not necessarily a determination of the loyalty of an applicant. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance

Initially, the government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify an applicant from being eligible for access to classified information. The government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the government establishes a disqualifying condition by substantial evidence, the burden shifts to an applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline B (Foreign Influence)

The security concern under Guideline B is set out in AG ¶ 6 as follows:

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.

A disqualifying condition may be raised by “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.” AG ¶ 7(a). A disqualifying condition also may be raised by “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.” AG ¶ 7(b).

Applicant’s father is citizen and resident of Afghanistan. Applicant had no contact with him for more than 20 years. When Applicant was working with the Special Forces in Afghanistan in 2006, he saw his father for a brief visit. He also saw his two sisters who are homemakers. Applicant’s in-laws are citizens and residents of Afghanistan. They have no connections to the government. However, they could create a potential conflict of interest between his security obligations and his desire to help them, only in a situation wherein he was taken hostage or otherwise threatened with harm if Applicant did not cooperate. Applicant maintains regular contact with his father by phone. He does not maintain contact with his sisters or his in-laws. However, his wife keeps in touch with her parents. However, under either disqualifying condition, security concerns could arise in connection with the potential that hostile forces might seek protected information from Applicant by threatening harm to his family members in Afghanistan. Based on this evidence, AG ¶¶ 7(a) and (b) are raised.

Since the Government produced evidence to raise the disqualifying conditions in AG ¶¶ 7(a) and (b), the burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

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). Nevertheless, 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, or the country is known to conduct intelligence operations against the United States.

Security concerns under this guideline can be mitigated by showing that “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.” AG ¶ 8(a). The totality of an applicant’s family ties to a foreign country as well as each individual family tie must be considered. ISCR Case No. 01-22693 at 7 (App. Bd. Sep. 22, 2003). Similarly, AG 8(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.”) applies. Applicant has been in the United States since 1985, and he has been a U.S. citizen since 2004. His wife resides with him and his daughter in the United States. His wife is in the process of becoming a U.S. citizen. Applicant has substantial interests in the United States. He has no desire to return to Afghanistan to live. Applicant has had a unique background and relationship with the United States since his childhood.

Applicant maintains contact with his father by telephone once a month. He had not seen his father until 2006 when he was working with the U.S. Army in Afghanistan. He also saw his father in 2010 for a brief visit. He does not maintain contact with his sisters or his in-laws.

Applicant’s work as an interpreter and cultural advisor supported the U.S. military mission in Afghanistan, not the work of those who seek to destroy the growing democracy in Afghanistan. The new Afghanistan government relies upon the United States for support, both financially and militarily, as it moves forward with a new form of government. While Afghanistan’s human rights record under the Taliban was dismal and serious problems continue, its human rights record is slowly improving. Since working as an interpreter with the Army for years, neither Applicant nor his family has been pressured by any organization to provide any type of information, classified or otherwise, about the United States.

In every case where a family member lives overseas, there is a risk of pressure on this relative and through them upon the holder of a security clearance. Under the facts of this case, a heightened risk for exploitation, inducement, manipulation, pressure, or coercion is not substantial. Applicant has significant ties to the United States and few ties to Afghanistan. Applicant has no financial or property interests in Afghanistan. He wants to help the United States in its role in the redevelopment of Afghanistan. Applicant’s ties with the United States are much stronger than his ties with Afghanistan. The Army holds his work as a translator and cultural advisor in high regard. He provided more than language interpretation skills. He explained nuances and practices that greatly assisted the military in accomplishing its mission. During his time in Afghanistan, he worked hard to help the Army. He developed a high level of trust with the Army and the Afghan locals.

Applicant spoke about his undivided loyalty to the United States. Based on his unique relationship and loyalty to the United States, he can be expected to resolve any conflict of interest in favor of the U.S. interest. He came to the United States as a gravely injured child and believes he owes his life to the United States. He did not contact his father or return to Afghanistan for more than 20 years. In 2004, he returned to Afghanistan at the behest of the United States. He owns property in the United States. He worked in the United States for many years. He endured dangerous conditions in Afghanistan on behalf of the U.S. Army. He has no security violations. He credibly testified that he would report someone to the U. S. Government if asked about classified information. I find Applicant has such deep and longstanding relationships and loyalties in America that he can be expected to resolve any potential conflict of interest in favor of the United States. He has established application of AG ¶ 8(b).

WHOLE PERSON CONCEPT

Under the whole-person concept, an 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. An 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.

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

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Certain circumstances weigh against Applicant in the whole-person analysis. First, Applicant’s father, sister, and in-laws live in Afghanistan. Terrorists or agents of the Tal’iban could attempt to use Applicant’s father or others to obtain information. These connections raise the possibility of foreign influence. However, the connection is minimal. Applicant’s wife and child reside in the United States. His child is a U.S. citizen and his wife is in the process of becoming a U.S. citizen

A Guideline B decision concerning Afghanistan must take into consideration the geopolitical situation and dangers there. Afghanistan is a dangerous place because of the violence from the Taliban and terrorists. The Taliban and terrorists continue to threaten the Afghan Government, the interests of the United States, U.S. Armed Forces, and those who cooperate with and assist the United States. The United States and Afghanistan are allies in the war on terrorism. The United States is committed to the establishment of a free and independent Afghan Government. Afghanistan and the United States have close relationships in diplomacy and trade. Substantial mitigating evidence weighs in favor of granting Applicant has held a security clearance. He has had no incidents of mishandling classified information. He has worked with the U.S. Army and the State Department. Applicant spent his childhood and adulthood in the United States after a grave injury that he suffered in Afghanistan. He had no contact with his father for 20 years. He is a naturalized U.S. citizen. He is a mature person who has lived in the United States and created a life for himself. He has a strong sense of patriotism toward the United States, as witnessed by his work and dedication to the U.S. government. There is no evidence that he has ever taken any action that could cause potential harm to the United States. His former military advisors, who worked with him in a war zone, praised his work in the cause of freedom in Afghanistan. He has no desire to live in Afghanistan. He has established his life in the United States. He owns property in the United States and wants to continue his life serving the Government.

Applicant is a loyal U.S. citizen who has worked under dangerous conditions in support of our national defense. He credibly testified that he would report any attempt to use his family members to coerce him to reveal classified information. The Appeal Board has held that “generally, an applicant’s statements, by themselves, as to what he [or she] would do in the face of threats by a foreign government or entity are entitled to little weight. On the other hand, an applicant’s proven record of action in defense of the United States is very important and can lead to a favorable result for an applicant in a Guideline B case.”2

Applicant served the United States in a dangerous, high-risk situation and his character references establish his significant contributions to U.S. national security. While contribution to a company is not normally to be considered a factor in granting a clearance, the Appeal Board noted in ISCR Case. No. 05-03846 at 6 (App. Bd. Nov. 14, 2006): As a general rule, Judges are not required to assign an applicant’s prior history of complying with security procedures and regulations significant probative value for purposes of refuting, mitigating, or extenuating the security concerns raised by applicant’s more immediate disqualifying conduct or circumstances. See, e.g. ISCR Case. No. 01- 03357 at 4 (App. Bd. Dec. 13, 2005); ISCR Case No 02-10113 at 4 (App. Bd. Mr. 25, 2005); ISCR Case No. 03-10955 at 2-3 (App. Bd. May 30, 2006). 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 made a significant contribution to the nation’s security. See. e.g. ISCR Case No. 04-12363 at 2 (App. Bd. July 14, 2006). The presence of such circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report to a foreign power’s attempts at coercion or exploitation. After weighing the disqualifying and mitigating conditions, and all facts and circumstances in the context of the whole person, I conclude Applicant has mitigated the security concerns pertaining to foreign influence. The complicated state of affairs in Afghanistan places a significant burden on Applicant to demonstrate that his foreign family members do not pose an unacceptable security risk. He has met that burden.

I conclude that the whole-person analysis weighs heavily toward approval of his security clearance. Assuming a higher authority reviewing this decision determines the mitigating conditions articulated under AG ¶ 8 do not apply, I conclude the whole-person analysis standing alone is sufficient to support approval of a security clearance in this case. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance.

FORMAL FINDINGS

I make the following formal findings for or against Applicant on the allegations set forth in the SOR, as required by Directive ¶ E3.1.25 of Enclosure 3:

Paragraph 1, Foreign Influence: FOR APPLICANT

Subparagraphs 1.a-1.d: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

Noreen A. Lynch Administrative Judge

FOOTNOTES

Applicant believed he had a phone call with his father sometime in 1997.(Tr.75) SCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007).