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ISCR Case 12-10699.h1 — CASE

ISCR Case 12-10699.h1granted

Case Headnote

ISCR Case No. 12-10699.h1

grantedMay 23, 2013· Hon. Mark W. Harvey· hearing

Summary

This DOHA security clearance decision involved a 27-year-old U.S. citizen, originally from Afghanistan, seeking a clearance under Guideline B (Foreign Influence). Concerns were raised due to the applicant's close relationships with his mother and sister, both residing in Afghanistan, and his mother's close ties to two aunts who are Afghan citizens and residents. Additionally, his brother-in-law is a Pakistani citizen residing in the U.S. The Statement of Reasons also noted that the applicant has many relatives living in the United States.

Disqualifying conditions under Guideline B were considered, but mitigating conditions were ultimately applied. The judge found that the applicant demonstrated strong ties to the U.S. through his citizenship and numerous family members residing domestically. His honorable service as a linguist for U.S. forces in Afghanistan further mitigated concerns about foreign influence.

Crucially, there was no evidence presented that the applicant's family members in Afghanistan were under any special threat or coercion. Based on these factors, the judge concluded that the applicant's connections did not pose a heightened risk of foreign influence, and the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant demonstrated strong ties to the U.S. through his citizenship and family members residing in the U.S.
The applicant's honorable service in Afghanistan as a linguist mitigated concerns about foreign influence.
The applicant's family members in Afghanistan were not shown to be under any special threat or coercion.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons
AG ¶ 7(d)raisedSharing Living Quarters with Foreign Persons

Mitigating

AG ¶ 8(a)appliedThe Nature of the Applicant's Service
AG ¶ 8(b)appliedThe Applicant's Family Ties to the U.S.
AG ¶ 8(c)appliedThe Absence of Evidence of Coercion or Pressure

Key Rule Quoted

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

Procedural Posture

SOR issuedOct 31, 2012
Answer filedDec 15, 2012
Hearing heldApr 15, 2013via video teleconference
Decision dateMay 23, 2013

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Evaluation of Family Ties in Security Clearance Cases
Impact of Military Service on Security Clearance Eligibility

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 close family ties and service in Afghanistan. The applicant's relationships with family members in Afghanistan did not pose a significant risk of foreign influence, leading to a decision to grant 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. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant is close to his sister, who lives in Afghanistan, and to his mother, who lives with him when he is not deployed to Afghanistan. His mother is close to two of his aunts, who are citizens and residents of Afghanistan.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties Claimed Foreign Assets Divested
1.b	His brother-in-law is a citizen of Pakistan, who resides in the United States.	For Applicant	In Law in Foreign Country Immediate Family	Pakistan	Admitted	—	—	—
1.c	His aunts are citizens and residents of Afghanistan.	For Applicant	Extended Family in Foreign Country Extended Family	Afghanistan HEIGHTENED RISK	Admitted	—	—	—
1.d	Applicant has many relatives living in the United States.	For Applicant	Unspecified Foreign Relationship Other	—	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. 12-10699 ) ) Applicant for Security Clearance

For Government: Braden M. Murphy, Department Counsel For Applicant: Pro se

05/23/2013 __________

STATEMENT OF CASE

__________

HARVEY, Mark, Administrative Judge:

Applicant is close to his sister, who lives in Afghanistan, and to his mother, who lives with him when he is not deployed to Afghanistan. His mother is close to two of his aunts, who are citizens and residents of Afghanistan. Applicant has completed 11 months of service in Afghanistan, where he honorably served as a linguist, showing bravery, loyalty, and fidelity to the United States. He has many more relatives living in the United States than in Afghanistan. Foreign influence security concerns are mitigated, and eligibility for access to classified information is granted.

Statement of the Case

On May 7, 2012, Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP) (SF 86) (Government Exhibit (GE) 1). On October 31, 2012, the Defense Office of Hearings and Appeals (DOHA) issued a statement of reasons (SOR) to Applicant, alleging security concerns under Guideline B (foreign influence) (Hearing Exhibit (HE) 2). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), 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) promulgated by the President on December 29, 2005. The SOR detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for him, and recommended referral to an administrative judge to determine whether a clearance should be granted for Applicant.

On December 15, 2012, Applicant responded to the SOR. (HE 3) On January 9, 2013, Department Counsel requested a hearing before an administrative judge. (HE 5) On March 19, 2012, Department Counsel was prepared to proceed. On March 29, 2013, the case was assigned to another administrative judge. On April 3, 2013, the case was reassigned to me for administrative reasons. Department Counsel and Applicant discussed setting the hearing because of Applicant’s deployment schedule to Afghanistan. On April 5, 2013, DOHA sent notice of the hearing setting the hearing for April 15, 2013. (HE 3) The hearing was held as scheduled using video teleconference. I received the transcript of the hearing on April 24, 2013. I initially held the record open until May 15, 2013, to give Applicant an opportunity to submit additional evidence. (Tr. 22, 45-46) I extended the time to submit evidence until May 20, 2013. (Ex. 8) On May 20, 2013, I received an additional exhibit, which was admitted without objection. (AE A)

PROCEDURAL RULINGS

At the hearing, Department Counsel offered four exhibits, and Applicant did not offer any exhibits. (Tr. 18-20; GE 1-4) Applicant and Department Counsel did not object to my consideration of any exhibits, and I admitted GE 1-4. (Tr. 18-19)

Department Counsel requested administrative notice (AN) of facts concerning Afghanistan. (HE 9, AN Request) Department Counsel provided supporting documents to show detail and context for those facts. (HE 9, Ex. I to IX) Applicant did not object, and I granted Department Counsel’s request. I have also taken administrative notice of the U.S. Department of State, Background Note: Afghanistan, Nov. 28, 2011.

Administrative or official notice is the appropriate type of notice used for administrative proceedings. See ISCR Case No. 05-11292 at 4 n.1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004) and McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986)). Usually administrative notice at ISCR proceedings is accorded to facts that are either well known or from government reports. See Stein, ADMINISTRATIVE LAW, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice).

Findings of Fact1

Applicant’s SOR response admitted the allegations in SOR ¶¶ 1.a to 1.d. (HE 3) He admitted that his sister, two aunts, and his grandmother are citizens and residents of Afghanistan. (SOR ¶¶ 1.a, 1.c, and 1.d) His brother-in-law is a citizen of Pakistan, who resides in the United States. (SOR ¶ 1.b) His admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant is 27 years old, and he was born in Afghanistan. (Tr. 6, 27-28) He could not remember when he graduated from high school in Afghanistan. (Tr. 7) He came to the United States in 2004, and he studied English in college in 2005. (Tr. 7, 24, 35-36) He became a U.S. citizen in 2010. (Tr. 35-36) His mother is a U.S. citizen, and she lives with Applicant. (Tr. 35) He is not married, and he does not have any children.

In 1996, Applicant’s father was killed, and Applicant and his family left Afghanistan. (Tr. 25-26) Applicant, his mother and sisters immigrated to Pakistan when Applicant was about 10 years old. (Tr. 26) When Applicant was about 11, he went to Afghanistan to look for work, and the Taliban took him to Iran. (Tr. 26-28). In Iran, Applicant worked as a cook and dishwasher for two years. (Tr. 26-28) He escaped back to Afghanistan by walking through a gate when the Iranians were distracted. (Tr. 27) Applicant does not have any contact with anyone who took him to Iran or from Iran. (Tr. 28-29)

Applicant has two aunts, who lived in Pakistan with his grandmother and two aunts, who live in Afghanistan. (Tr. 29-31, 43) His grandmother passed away in March 2013. (Tr. 31) He most recently saw his aunts in Afghanistan in 2002 or 2003 and his aunts in Pakistan in 2004. (Tr. 30-32)

Applicant lives with his mother. His mother talks to his two aunts in Afghanistan on the phone every two weeks or so; however, he does not telephone them. (Tr. 30, 44) His aunts in Afghanistan and Pakistan have not come to the United States. (Tr. 42)

Applicant has one sister, who lives in Afghanistan. (Tr. 32) She does not work outside her home, and her husband works in an office for a nongovernmental organization (NGO). (Tr. 32-33) The last time Applicant saw his sister was around 2000. (Tr. 33) For the past 11 months while he has been serving in Afghanistan, he called his sister about every week or two. (Tr. 34, 44)

Applicant has served as an interpreter in Afghanistan for 11 months. (Tr. 34) He works on base, and he goes out into the public areas of the countryside. (Tr. 34-35) He has not been shot at while on missions. (Tr. 35) His salary was recently reduced from over $200,000 per year to $117,000 per year because of the drawdown of military forces in Afghanistan and the decreased need for translators. (Tr. 41) Shortly after his hearing, he left his employment as a translator. (AE A) Applicant is willing to return to Afghanistan and continue to work as a translator to assist U.S. forces in a combat environment.

Three of Applicant’s sisters live in the United States and are U.S. citizens. (Tr. 35-36) Two of his sisters have been deployed to Afghanistan as linguists for a U.S. Government contractor. (Tr. 38-40) They have security clearances. (Tr. 39) One of his brothers lives in the United States, is a citizen of Pakistan, and has a green card. (Tr. 36-37)

Applicant has two brothers-in-law who live in the United States. (Tr. 37) One brother-in-law is a U.S. citizen, and one has a green card. (Tr. 38) Applicant and his family members living in the United States do not have any property in Afghanistan or Pakistan. (Tr. 40) Applicant rents his residence in the United States from a relative.

On April 30, 2013, Applicant’s commanding officer, a major, wrote:

For nearly a year, [Applicant] has honorably worked as a linguist for the United States Army since June 2012. His professionalism and work ethic has led to mission success in Afghanistan.

[Applicant] worked nearly every day interpreting for key leader engagements (KLE) of high ranking Afghan Army officials and United States Army Officers. During KLEs, [Applicant] remained focused on his job for many hours at a time as military strategy was discussed between military leaders.

I recommend [Applicant] for jobs of greater responsibility at the national or international level. His calm demeanor, maturity, and understanding of many cultures make him a strong candidate for any position of national security interest. (AE A)

Afghanistan

Afghanistan is a country in Southwestern Asia. It is approximately the size of Texas (249,935 square miles). Pakistan borders it on the east and the south. Iran borders it on the west and Russia to the north. It is a rugged and mountainous country which has been fought over by powerful nations for centuries. In 2009, the population was about 28 million people with about 3,000,000 Afghans living outside Afghanistan.

Afghanistan is presently an Islamic Republic with a democratically elected president. Afghanistan has had a turbulent political history, including an invasion by the Soviet Union in 1979. After an accord was reached in 1989, and the Soviet Union withdrew from Afghanistan, fighting continued among the various ethnic, clan, and religious militias. By the end of 1998, the Taliban rose to power and controlled 90% of the country, imposing aggressive and repressive policies.

In October 2001, U.S. forces and coalition partners led military operations in the country, forcing the Taliban out of power by November 2001. The new democratic government took power in 2004 after a popular election. Despite that election, terrorists, including al-Qaeda and the Taliban, continue to assert power and intimidation within the country. Safety and security are key issues because these terrorist organizations target United States and Afghan interests by suicide operations, bombings, assassinations, car-jacking, assaults, or hostage taking. 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. No section of Afghanistan is safe or immune from violence.

The United States-Afghan relationship is summarized as follows:

After the fall of the Taliban, the U.S. supported the emergence of a broad- based government, representative of all Afghans, and actively encouraged a [United Nations] role in the national reconciliation process in Afghanistan. The U.S. has made a long-term commitment to help Afghanistan rebuild itself after years of war. The U.S. and others in the international community currently provide resources and expertise to Afghanistan in a variety of areas, including humanitarian relief and assistance, capacity-building, security needs, counter-narcotic programs, and infrastructure projects.

During his December 1, 2009 speech at West Point, President Barack Obama laid down the core of U.S. goals in Afghanistan: to disrupt, dismantle, and defeat al-Qaeda and its safe havens in Pakistan, and to prevent their return to Afghanistan. . . . [T]he United States plans to remain politically, diplomatically, and economically engaged in Afghanistan for the long term.

U.S. Department of State, Background Note: Afghanistan, Nov. 28, 2011 at 13. The United States has more combat troops deployed to Afghanistan than to any other foreign country. The U.S. Government plans to withdraw U.S. combat troops from Afghanistan in the next two years. On May 12, 2012, the United States and Afghanistan signed the Enduring Strategic Partnership Agreement. This agreement demonstrates the United States’ long-term commitment to strengthen Afghanistan’s sovereignty and stability, in support of the goal of suppression of terrorism. The United States’ extraordinary commitment to Afghanistan is balanced against the inherent dangers of the ongoing conflict in Afghanistan to citizens and residents of Afghanistan and of Afghan Government problems developing and complying with the rule of law.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no 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 have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s 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.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about 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 the applicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. 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 the 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 the 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). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[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

Foreign Influence

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

[I]fthe individual has divided loyalties or foreign financial interests, [he or she] may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.

AG ¶ 7 indicates three conditions that could raise a security concern and may be disqualifying in this case:

(a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

(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; and

(d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.

Applicant, his mother, and siblings were all born in Afghanistan. His mother and most of his siblings moved to the United States. He lives with his mother, and she has frequent contact with her sisters, who are Afghan citizens living in Afghanistan. He has frequent contact with his sister, who is a citizen of Afghanistan living in Afghanistan. His frequent contact with family members is an objective manifestation of his affection for his mother and his family members living in Afghanistan. Applicant and his mother are concerned about their welfare. There are widely documented safety issues for residents of Afghanistan because of terrorists and insurgents. Applicant has voluntarily shared in those dangers, and he is willing to do so in the future. Hundreds of other Afghan linguists support U.S. forces and have family living in Afghanistan. Thousands of U.S. and coalition armed forces and civilian contractors serving in Afghanistan are targets of terrorists or the Taliban, along with Afghan civilians, who support the Afghan Government and cooperate with coalition forces. There is no evidence that Applicant’s family is receiving any special protection from the Afghan or U.S. Governments to safeguard them from terrorists or the Taliban. On the other hand, there is no evidence that they are under any more danger than any other resident of Afghanistan.

The mere possession of close family ties with a family member living in Afghanistan, is not, as a matter of law, disqualifying under Guideline B. However, if an applicant has a close relationship with even one relative, living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See Generally ISCR Case No. 03- 02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001).

The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion or inducement. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government; the government ignores the rule of law including widely accepted civil liberties; a family member is associated with or dependent upon the government; the government is engaged in counterinsurgency; terrorists cause a substantial amount of death or property damage; or the country is known to conduct intelligence collection operations against the United States. The relationship between Afghanistan and the United States places a significant, but not insurmountable burden of persuasion on Applicant to demonstrate that his relationships with his family members living in Afghanistan do not pose a security risk. Applicant should not be placed into a position where he might be forced to choose between loyalty to the United States and a desire to assist a family member living in Afghanistan.

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).

While there is no evidence that intelligence operatives or terrorists from Afghanistan seek or have sought classified or economic information from or through Applicant or his family, nevertheless, it is not possible to rule out such a possibility in the future. International terrorist groups are known to conduct intelligence activities as effectively as capable state intelligence services, and Afghanistan has an enormous problem with terrorism. Applicant’s relationship with family members living in Afghanistan creates a potential conflict of interest because this relationship is sufficiently close to raise a security concern about his desire to assist family members in Afghanistan by providing sensitive or classified information. Department Counsel produced substantial evidence of Applicant’s contacts with his family living in Afghanistan and has raised the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a), 7(b), and 7(d) apply, and further inquiry is necessary about potential application of any mitigating conditions.

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

(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;

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

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and

(f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

AG ¶¶ 8(a) and 8(c) have limited applicability. Applicant has frequent contact with his mother, who lives with him, and his sister, who lives in Afghanistan. His mother has frequent contact with Applicant’s aunts, who live in Afghanistan. His loyalty and connections to his mother and his family living in Afghanistan are a positive character trait. However, for security clearance purposes, those same connections to his family living in Afghanistan negate the possibility of full mitigation under AG ¶ 8(a), and Applicant failed to fully meet his burden under AG ¶ 8(c) of showing there is “little likelihood that [his relationships with his relatives who are Afghanistan citizens] could create a risk for foreign influence or exploitation.”

AG ¶ 8(b) fully applies. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant has significant connections to the United States. In 2004, Applicant moved to the United States. In 2010, he became a U.S. citizen. He has taken some college classes in the United States in English. His mother, three sisters, one brother, and two brothers-in-law are citizens and residents of the United States or U.S. green-card holders. His two sisters have been deployed to Afghanistan as linguists and hold security clearances. Department of Defense contractors have employed him as a linguist and cultural advisor for 11 months in Afghanistan. Most importantly, Applicant is willing to return to Afghanistan to assist U.S. Armed Forces in a dangerous combat environment. He has offered to continue to risk his life to support the United States’ goals in Afghanistan. He has shown his patriotism, loyalty, and fidelity to the United States.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with his family living in Afghanistan, and indirectly, his family’s relationships with other Afghan citizens living in Afghanistan. He frequently communicates with his mother, who lives with him, and she frequently communicates with his aunts living in Afghanistan. He frequently communicates with his sister, who lives in Afghanistan. There is no evidence, however, that terrorists, criminals, the Afghan Government, or those conducting espionage have approached or threatened Applicant or his family in Afghanistan to coerce Applicant or his family for classified or sensitive information.2 As such, there is a reduced possibility that Applicant or his family would be specifically selected as targets for improper coercion or exploitation. On the other hand, Applicant’s family, like every other family living in Afghanistan, is already at risk from terrorists and the Taliban.

While the Government does not have any burden to prove the presence of such evidence, if such record evidence were present, Applicant would have a heavier evidentiary burden to mitigate foreign influence security concerns. It is important to be mindful of the United States’ huge investment of manpower and money in Afghanistan, and Applicant has supported U.S. goals and objectives in Afghanistan. Applicant and his family living in Afghanistan are potential targets of terrorists and the Taliban because of Applicant’s own activities and support for the United States. Applicant’s potential access to classified information could theoretically add some risk to Applicant and his family from lawless elements in Afghanistan.

AG ¶¶ 8(d) and 8(e) do not apply. The U.S. Government has not encouraged Applicant’s involvement with family members living in Afghanistan. Applicant is not required to report his contacts with family members living in Afghanistan.

AG ¶ 8(f) has limited application because there is no evidence that Applicant has any interest in property or bank accounts in Afghanistan. However, this mitigating condition can only fully mitigate the disqualifying condition under AG ¶ 7(e), which provides, “a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation.” All of Applicant’s assets are in the United States. In sum, Applicant’s connections to family living in Afghanistan are significant; however, they are substantially less than his current family connections to the United States. His U.S. Government employment, performance of linguist duties in a combat zone, and U.S. citizenship are also more significant than his connections to his family living in Afghanistan. His connections to the United States taken together are sufficient to fully overcome the foreign influence security concerns under Guideline B. Foreign influence concerns under Guideline B are mitigated; however, assuming AG ¶ 8(b) is not applicable, security concerns are separately mitigated under the whole-person concept, infra.

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 have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under this guideline, but some warrant additional comment.

Several of Applicant’s family connections cause foreign influence security concerns; however, they are not sufficient to merit denial of Applicant’s access to classified information. Applicant’s mother has close connections to Applicant’s aunts, and she lives with Applicant in the United States, when he is not deployed to Afghanistan. Applicant has close connections to his sister. His sister and two aunts are citizens and residents of Afghanistan. His family in Afghanistan is at a greater risk due to Applicant’s position as a linguist and, if his clearance is granted, there is a theoretical increase in the risk to his family in Afghanistan.

The factors weighing towards approval of Applicant’s security clearance are more substantial than the factors weighing against its approval. Applicant has lived in the United States since 2004, except when he has been in Afghanistan supporting U.S. forces. In 2010, he became a U.S. citizen and took an oath of allegiance to the United States. He has taken some college classes in the United States in English. His mother, three sisters, one brother, and two brothers-in-law are citizens and residents of the United States or U.S. green-card holders. His two sisters have been deployed to Afghanistan as linguists and hold security clearances.

There is no evidence that Applicant has engaged in criminal activity, abused alcohol or illegal drugs, or committed any security violations. Department of Defense contractors have employed him as a linguist and cultural advisor for 11 months in Afghanistan. He went on combat missions in Afghanistan and made contributions to the U.S. military at personal risk. On April 30, 2013, Applicant’s commanding officer, a major, recognized his contributions to mission accomplishment and described Applicant’s work as professional, diligent, calm, mature, and responsible. The major recommended Applicant for any position of national security interest. Applicant is willing to continue to serve in Afghanistan in support of U.S. Armed Forces as a linguist and translator, risking his life as part of his duties on behalf of the U.S. combat forces in Afghanistan. He is fully aware of the risks to himself, and he is also aware that his family members in Afghanistan are at risk from terrorists and the Taliban. All these circumstances increase the probability that Applicant will recognize, resist, and report any attempts by a foreign power, terrorist group, or insurgent group to coerce or exploit him. See ISCR Case No. 07-00034 at 2 (App. Bd. Feb. 5, 2008). Applicant does not own property in Afghanistan. His desire for employment as a translator and oath of allegiance to the United States document his loyalty, trustworthiness, and reliability, and they weigh heavily towards approval of his security clearance.

A Guideline B decision concerning Afghanistan must take into consideration the geopolitical situation and dangers there.3 Afghanistan is a very dangerous place because of 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 and assist the United States. The Afghan Government does not fully comply with the rule of law or protect civil liberties in many instances. Applicant’s translator duties in Afghanistan will be personally dangerous. The United States and Afghan Governments 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.

I have carefully assessed Applicant’s demeanor and sincerity at his hearing, and I find his statements to be credible. I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude Applicant has carried his burden and foreign influence concerns are mitigated. Eligibility for access to classified information is granted.

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

Subparagraphs 1.a through 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.

____________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 The facts in this decision do not specifically describe employment, names of witnesses, names of other groups or locations in order to protect Applicant and his family’s privacy. The cited sources contain more specific information. At his hearing, Applicant had difficulty understanding English, and this caused some inconsistent answers about his contacts with family living in Afghanistan or comments that he did not know or remember some facts. See also May 23, 2012, Office of Personnel Management (OPM) personal subject interview. (GE 4) 2There would be little reason for U.S. enemies to seek classified information from an applicant before that applicant has access to such information or before they learn of such access. 3 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient discussion of geopolitical situation and suggesting expansion of whole-person discussion).