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ISCR Case 13-01290.h1 — CASE

ISCR Case 13-01290.h1granted

Case Headnote

ISCR Case No. 13-01290.h1

grantedJul 31, 2014· Hon. Mary E. Henry· hearing

Summary

A 58-year-old linguist working for a Department of Defense contractor was granted a security clearance despite initial concerns under Guideline B (Foreign Influence). The Statement of Reasons cited potential disqualifying conditions related to contact with foreign family members and connections to a foreign country, specifically Afghanistan, which could create a conflict of interest or heightened risk of exploitation.

However, the judge applied several mitigating conditions. The applicant has resided in the U.S. for over 24 years and is a U.S. citizen, demonstrating a strong commitment to the country. Furthermore, the applicant's family members in Afghanistan are not involved in activities that would pose a security risk, such as terrorism or government espionage.

The applicant also took precautions to limit contact with his family in Afghanistan to mitigate potential foreign influence. Ultimately, the judge found that the applicant's limited contact with his family, his long-standing commitment to the U.S., and the nature of his family's occupations sufficiently mitigated the security concerns, leading to the grant of eligibility for a security clearance.

Why the Applicant Prevailed

The applicant has lived in the U.S. for over 24 years and is a U.S. citizen, demonstrating strong ties to the country.
The applicant's family members in Afghanistan are not involved in activities that would pose a security risk, such as terrorism or government espionage.
The applicant has taken precautions to limit contact with his family in Afghanistan to mitigate potential foreign influence.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons Is Unlikely to Create a Conflict of Interest
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties
AG ¶ 8(c)appliedCasual and Infrequent Contact with Foreign Citizens

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedMar 26, 2014
Answer filedApr 17, 2014Applicant requested a decision on the written record.
Hearing held—No hearing; decision based on written record.
Decision dateJul 31, 2014

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Consideration of Family Ties in Security Clearance Cases
Impact of U.S. Citizenship on Foreign Influence Assessments

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 granted the applicant's eligibility for access to classified information, finding that the applicant's foreign contacts, specifically with family members in Afghanistan, raised security concerns. However, the applicant successfully mitigated these concerns by demonstrating a commitment to U.S. interests and limiting contact with his family.

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	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.	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	(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 Contact Disclosed to Authorities
1.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.	For Applicant	Sibling in Foreign Country Immediate Family	Afghanistan HEIGHTENED RISK	Admitted	(b) connections creating a potential conflict of interest	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties Claimed Contact Disclosed to Authorities

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. 13-01290 ) Applicant for Security Clearance )

For Government: Caroline E. Heintzelman, Esquire, Department Counsel For Applicant: Pro se

07/31/2014 ______________

STATEMENT OF CASE

______________

HENRY, Mary E., Administrative Judge:

Based upon a review of the pleadings and exhibits, Applicant’s eligibility for access to classified information is granted.

Statement of the Case

Applicant completed and certified an Electronic Questionnaire for Investigations Processing (e-QIP) on January 9, 2011. The Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) on March 26, 2014, detailing 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; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines For Determining Eligibility for Access to Classified Information (AG), implemented on September 1, 2006. Applicant received the SOR on April 14, 2014. He submitted a notarized, written response to the SOR allegations dated April 17, 2014, and he requested a decision on the written record in lieu of a hearing.

Department Counsel prepared a file of relevant material (FORM) and mailed Applicant a complete copy on May 28, 2014. Applicant received the FORM on July 1, 2014. He had 30 days from receipt of the FORM to file objections and submit material in refutation, extenuation, or mitigation. He submitted a response dated July 10, 2014. DOHA assigned this case to me on July 29, 2014. The Government submitted eight exhibits, which have been marked as Items 1-8 and admitted into the record. Applicant’s response to the SOR has been marked and admitted as Item 4, and the SOR has been marked as Item 1. His written response to the FORM is admitted into the record as Applicant Exhibit A (AE A).

PROCEDURAL RULINGS

Request for Administrative Notice

Department Counsel submitted a request that I take administrative notice of certain facts relating to Afghanistan. The request and the attached documents were not admitted into evidence, but were included in the record as Hearing Exhibits I-VI. The facts administratively noticed are limited to matters of general knowledge and matters not subject to reasonable dispute, and they 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 and 1.bof the SOR. His admissions are incorporated herein as findings of fact. He also provided additional information to support his request for eligibility for a security clearance. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant, who is 58 years old, works as a linguist for a DOD contractor. He began working for his current employer in January 2011. As a linguist, he worked in Afghanistan for two years. He returned to the United States on medical leave. Because his leave lasted more than 30 days, his company required him to reapply for his position. He is currently working in Afghanistan. His supervisor describes his communication and translation skills as excellent. Applicant exercises diligence, patience, and determination during his translation work. He is well respected by the command, his peers, and the leaders of the Afghan Army. His supervisor advises that Applicant displays a high degree of integrity, responsibility, and ambition. Applicant served as a mentor and advisor to other linguist and military personnel. In October 2013, the Army presented him with a certificate of appreciation for his outstanding work. Prior to his linguist job, Applicant worked as a printer technician for 11 years until he was laid off.

Applicant was born and raised in Afghanistan. He graduated from college with a degree in Islamic Studies in 1987. He fled Afghanistan to Pakistan in 1989 after being detained for one year for not supporting the communist controlled Afghan government. In Pakistan, he met a smuggler who provided him a fake passport and smuggled him into the United States in November 1989. Upon his arrival in the United States, Applicant applied for and was granted political asylum. He became a United States citizen in 2006. He holds only a United States passport. Within the last year, he purchased a home in the United States. He does not belong to or associate with known terrorist organizations, foreign intelligence, or foreign militaries. He did not serve in the Afghan Army or Afghan National Police.

Except when working in Afghanistan, Applicant lives in the United States with his significant other, who was born in Afghanistan and is now a citizen and resident of the United States. His 21-year-old son is a U.S. citizen by birth and lives in the United States. Applicant has five brothers and one sister, who are citizens and residents of Afghanistan. He also has five sisters-in-law and one brother-in-law, who are citizens and residents of Afghanistan. Two brothers work for a company clearing mines. This company is funded by the United Nations. One brother is a farmer, and one brother is a bank clerk. His last brother is a municipal judge in Afghanistan. His sister and five sisters-in-law are housewives. His brother-in-law served in the Afghan parliament for four years, retiring in 2012. Since he began working as a linguist, Applicant has not seen his family members nor has he visited with them when in Afghanistan. He has not told his siblings about his current job. He does talk with his family members by telephone on occasion, but not more than once a month.3

Afghanistan

I take administrative notice of the following adjudicative facts. Afghanistan is an Islamic Republic and emerging democracy. With the support of the United States and other nations, its new government endeavors to build a new system of government and to rebuild the country’s infrastructure. Its Army and police force are well trained. It continues to face significant challenges from the insurgency and terrorist organizations supported by the ousted Taliban and Al Qa’ida. Security and violence remain a serious issue. The government is not complacent about the terrorist threat, the insurgency, or security issues; rather it actively seeks to eliminate all with the assistance of the United States and NATO. The new government is working to reverse a long legacy of serious human rights abuses, but serious problems remain. Afghanistan is now an active member of the international community, has signed a “Good Neighbor” declaration with six nations bordering it, and promotes regional cooperation. The United States supports the emergence of a broad-based government in Afghanistan and has made a long-term commitment to help Afghanistan rebuild itself. Sometime ago, the leaders of both countries concluded a strategic partnership agreement committing to a long-term relationship between both countries, which was signed on May 2, 2012. Despite its differences with the United States, Afghanistan continues to seek U.S. support as it moves forward towards democracy and stability. None of the documents offered in support of the request for administrative notice indicate whether Afghanistan is an active collector of U.S. intelligence information.4

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An applicant has the ultimate burden of persuasion for obtaining a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk an 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 a security concern and may be disqualifying:

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

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

Applicant’s son and significant other are citizens and residents of the United States. Thus, no security concern is raised by these family members. Applicant’s five brothers, one sister, five sisters-in-law, and one brother-in-law are citizens and residents of Afghanistan. His family relationships are not per se a reason to deny Applicant a security clearance, but his contacts with his family members in Afghanistan must be considered in deciding whether to grant Applicant a clearance. Applicant’s family members may create a risk of foreign exploitation, inducement, manipulation, pressure, or coercion by terrorists or could create a potential conflict of interest between his obligations to protect sensitive information and his desire to help his family members, particularly if they are threatened by terrorists. These factors must be considered when determining if a heightened risk exists.

In determining if such a risk exists, I must look at Applicant’s relationships and contacts with his extended family, as well as the activities of the Government of Afghanistan and of terrorist organizations within Afghanistan. The risk that an applicant could be targeted for manipulation or induced into compromising classified information is real, not theoretical. Applicant’s relationship and contacts with his extended family in Afghanistan raise a heightened risk and a security concern because of the terrorists activities in Afghanistan, especially the Taliban. The evidence of record fails to show that the Afghan Government targets U.S. citizens in the United States or in Afghanistan by exploiting, manipulating, pressuring, or coercing them to obtain protected information. Thus, the concern that the Afghan Government will seek classified information is moderate. The same cannot be said about the terrorists organizations operating in Afghanistan, whose goals are to destroy or prevent the growth of a stable, central Afghan government.

Under the guideline, the potentially conflicting loyalties must be weighed to determine if an applicant can be expected to resolve any conflict in favor of U.S. interests. In determining if Applicant’s contacts in Afghanistan cause security concerns, I considered that Afghanistan and the United States have a relationship, which includes working together on international security issues and trade. There is no evidence that the Afghan Government targets U.S. citizens for protected information. The human rights issues in Afghanistan continues to be a concern. While none of these considerations by themselves dispose of the issue, they are all factors to be considered in determining Applicant’s vulnerability to pressure or coercion because of his family members in Afghanistan. Based on all these factors, Applicant’s contacts raise a heightened risk under AG ¶¶ 7(a) and (b).

The foreign influence guideline also includes examples of conditions that can mitigate security concerns. I have considered mitigating factors AG ¶ 8(a) through ¶ 8(f), and the following are potentially applicable:

(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; 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.

Applicant’s monthly or less frequent telephone contacts with his family members in Afghanistan is sufficient to establish casual contacts. His sister and sisters-in-law are housewives with no connections to the Afghan government or terrorist organizations. One brother is a farmer and two brothers work removing mines. They are working to support themselves and to improve life in Afghanistan, not to undermine the United States. These siblings are not likely to place Applicant in a position of having to chose between the interests of the United States and of Afghanistan. His brother, the bank clerk, has no direct contact with the Afghan government and has little likelihood of being a target for terrorist because of his position. As a municipal judge, his last brother most likely works for the Afghan government. He also works to establish the rule of law in Afghanistan. His position would not be high profile, making him less likely to be a target of terrorists. His brother-in-law is no longer an elected official, making him less likely to be a target of terrorists since he is not in a position of power.

Applicant has lived in the United States for more than 24 years. He chose to relinquish his Afghan citizenship and become a United States citizen, the country which granted him asylum after he fled the communist controlled Afghan government. His family members are not likely to place Applicant in a position of having to chose between the interests of the United States and of Afghanistan because the United States is now his country. Since accepting his position as a linguist, Applicant has taken precautions with contacting his family. He has not told them about his current work nor has he contacted them since arriving in Afghanistan. He limits his contacts to telephone calls, nor more frequent than his calls prior accepting this position in 2011. Given his precautions, his foreign contacts are not likely to create a risk of foreign influence or exploitation. With the exception of one brother and his brother-in-law, there is no evidence that his family members are involved with the Government of Afghanistan or terrorist organizations. Rather, they live and work quietly. The brother, who is a municipal judge, seeks to improve the strength of the new Afghan government by applying the rule of law. His brother-in-law is no longer in a position to legislate policy in Afghan. Applicant recognizes the obligations he has to the United States. In reviewing the record evidence, I find that Applicant can be expected to resolve any conflicts of interest in favor of the United States. He has mitigated the Guideline B security concerns under AG ¶¶ 8(a)-(b).

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 an applicant’s conduct and all relevant 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. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern.

The evidence in support of granting a security clearance to Applicant under the whole-person concept is more substantial than the evidence in support of denial. Applicant fled Afghanistan under the communist controlled government. The United States granted him political asylum after his arrival in 1989. Applicant has since established a life for himself in the United States. His immediate family lives in the United States. His son is a citizen by birth. Applicant and his significant other have chosen to become U.S. citizens, making the United States his country of choice. For many years, Applicant worked as a printer technician. Since 2011, he has worked as a linguist on behalf of the United States in Afghanistan. As a linguist, he interprets not only the Afghan languages, he also must give context to the cultural nuances of the Afghan languages. Through his job, he supports the United States mission in Afghanistan. To do his job, he places himself in harms way because many dangers continue to exist in Afghanistan. His family members work to provide shelter and food. The two brothers, who work clearing mines, are placing themselves in danger every day to the benefit of the United States and all Afghans. His one brother works to develop the rule of law to stabilize Afghanistan’s growing democracy. His family members are working to improve life in Afghanistan, not against the United States. Applicant’s priority is the United States and his family’s priority to to provide a safe and stable Afghanistan. Since undertaking his current job he has taken precautions to prevent his family from being placed in a position which could bring harm to them because of his work. In reviewing all the evidence, there is little likelihood that Applicant’s family members can be used to coerce or pressure him into providing access to classified information.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his foreign influence under Guideline B.

FORMAL FINDINGS

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

Paragraph 1, Guideline B: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: 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.

MARY E. HENRY Administrative Judge

FOOTNOTES

Items 5-8; AE A. Items 5 to 8. Items 4-8; AE A. HE 1. ISCR Case No. 09-06457 (App. Bd., May 16, 2011). Id.