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ISCR Case 14-06834.h1 — CASE

ISCR Case 14-06834.h1granted

Case Headnote

ISCR Case No. 14-06834.h1

grantedApr 29, 2016· Hon. Robert J. Tuidar· hearing

Summary

This case involved a 61-year-old naturalized U.S. citizen, originally from Cuba and working as a construction superintendent, who sought a security clearance. Concerns under Guideline B (Foreign Influence) were raised due to his family ties in Cuba. Specifically, the Statement of Reasons cited his mother, son, daughter, son-in-law, and grandson as resident citizens of Cuba, and his brother as a Cuban citizen residing in the U.S. Disqualifying conditions AG ¶ 7(a) and AG ¶ 7(b) were initially considered.

However, the applicant successfully mitigated these concerns. His mother passed away, and his daughter, son-in-law, and grandson all immigrated to the United States. The applicant also demonstrated minimal ties of affection and obligation to his son, who remains a resident citizen of Cuba.

Based on these factors, the judge applied mitigating conditions AG ¶ 8(a) and AG ¶ 8(b). The security clearance was GRANTED, as the applicant demonstrated strong ties to the U.S. and the remaining foreign influence concerns were deemed not to pose a security risk.

Why the Applicant Prevailed

Applicant's mother passed away, eliminating one foreign influence concern.
Applicant's daughter, son-in-law, and grandson successfully immigrated to the U.S., mitigating another concern.
Applicant demonstrated minimal ties of affection and obligation to his son in Cuba.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Member
AG ¶ 7(b)raisedConnections to Foreign Persons

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedNo Conflict of Interest

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedMay 9, 2015
Answer filedJun 5, 2015
Hearing heldNov 17, 2015
Decision dateApr 29, 2016

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Impact of Family Immigration Status on Security Clearance Decisions
Evaluation of Ties to Foreign Countries in Security Clearance Cases

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated security concerns under Guideline B related to foreign influence. The applicant's family ties to Cuba were deemed manageable, particularly after significant changes in the applicant's family status, leading to a decision to grant the 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. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother was a resident citizen of Cuba.	For Applicant	Parent in Foreign Country Immediate Family	Cuba HEIGHTENED RISK	Denied	—	—	—
1.b	Applicant’s son is a resident citizen of Cuba.	For Applicant	Sibling in Foreign Country Immediate Family	Cuba 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	—
1.c	Applicant’s daughter, son-in-law, and grandson were resident citizens of Cuba.	For Applicant	Extended Family in Foreign Country Extended Family	Cuba HEIGHTENED RISK	Admitted	—	—	—
1.d	Applicant’s brother is a resident of the United States and a citizen of Cuba.	For Applicant	Sibling in Foreign Country Immediate Family	Cuba HEIGHTENED RISK	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. 14-06834 ) Applicant for Security Clearance )

For Government: Braden Murphy, Esq., Department Counsel For Applicant: Elias Bichachi, Personal Representative

04/29/2016 __________

STATEMENT OF CASE

__________

TUIDER, Robert J., Administrative Judge:

Applicant mitigated security concerns under Guideline B (foreign influence). Clearance is granted.

Statement of the Case

On March 4, 2013, Applicant submitted a Questionnaire for National Security Positions (SF 86). On May 9, 2015, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the adjudicative guidelines (AG), which became effective on September 1, 2006.

The SOR alleged security concerns under Guideline B. The SOR detailed reasons why the DOD CAF was unable to find that it is clearly consistent with the national interest to grant a security clearance for Applicant, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be granted or denied.

On June 5, 2015, Applicant responded to the SOR. On September 9, 2015, Department Counsel was ready to proceed. On September 28, 2015, DOHA assigned Applicant’s case to me. On October 30, 2015, the Defense Office of Hearings and Appeals (DOHA) issued a hearing notice, setting the hearing for November 17, 2015. Applicant’s hearing was held as scheduled. At the hearing, Department Counsel offered Government Exhibits (GE) 1 through 3, which were received into evidence without objection. Applicant called one witness, testified, and offered Applicant Exhibits (AE) A through C, which were received into evidence without objection. On April 6, 2015, Applicant submitted AE D, which was received into evidence without objection. On November 25, 2015, DOHA received the hearing transcript (Tr.).

Request for Administrative Notice

Department Counsel submitted a Request for Administrative Notice (Exhibit (EX) I), requesting that I take administrative notice of the summary of facts contained in EX I as well as seven source documents pertaining to Cuba contained in website addresses listed in EX I. Without objection, I took administrative notice of the documents offered by Department Counsel, which pertained to Cuba. (Tr. 21)

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)); McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986)). The most common basis for administrative notice at ISCR proceedings, is to notice 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). Various facts pertaining to Cuba were derived from EX I and source documents contained in EX I that are contained, in whole or in part, infra under the subheading “Cuba” of this decision.

FINDINGS OF FACT

Applicant admitted SOR ¶¶ 1.b – 1.d, and denied SOR ¶ 1.a. After a thorough review of the evidence, I make the following additional findings of fact.

Background Information

Applicant is a 61-year-old construction superintendent employed by a defense contractor since January 2002. He seeks a security clearance to enhance his position within his company. (GE 1; Tr. 23-24, 31)

Applicant was born in Cuba in 1954. He went as far as the 11th grade in Cuba and did not graduate from high school. As a young boy, he was detained for having a Beatles record album. Applicant did not join the Communist party which precluded him from pursuing professions such as medicine or engineering. His first job in Cuba was as a diver in an aquarium, but he was fired because he was not a member of the Communist party. With limited employment options, Applicant began working in the construction industry. Discouraged with the Cuban government and life in Cuba, Applicant, at age 24, was among 10,000 plus Cubans who stormed the Peruvian Embassy in April 1980 seeking asylum. In April 1980, Applicant left Cuba for Spain where he remained for over 14 years. (Tr. 16, 24-28. 49-50)

In April 1994, at age 40, Applicant immigrated to the United States. He became a naturalized U.S. citizen in August 2008, and was issued his most recent U.S. passport in January 2009. Applicant immediately began working in the construction field and continues to the present time. As a superintendent, Applicant is responsible for quality control, subcontractor scheduling, organization, project change orders, and tracking changes on drawings, and he is the company’s on-site representative. (GE 1; Tr. 29-32, 38-41, 50-51)

Applicant has been married three times and divorced twice. He had a child with each wife and all of his children are adults. (Tr. 32-33) Applicant’s wife is also Cuban, is a U.S. citizen, and part owner of a medical research center. Applicant has not served in the armed forces of the United States, but did serve mandatory military service when he lived in Cuba. (GE 1; Tr. 47-48, 56-57)

Foreign Influence

Security concerns were identified under this Guideline as a result of Applicant having family members who were resident citizens of Cuba or having a family member residing in the United States who is a Cuban citizen. Specifically, the SOR alleged that Applicant’s mother, son, daughter, son-in-law, and grandson are resident citizens of Cuba and his brother is a Cuban citizen residing in the United States. (SOR ¶¶ 1.a – 1.d) The status of Applicant’s relatives has changed substantially since the SOR was issued in May 2015, and those changes are discussed infra.

SOR ¶ 1.a alleged that Applicant’s mother was a resident citizen of Cuba. Applicant’s mother passed away May 2015, and this concern is no longer applicable. SOR ¶ 1.calleged that Applicant’s daughter, son-in-law, and grandson were resident citizens of Cuba. When Applicant submitted his SOR answer, he stated that he had taken the necessary steps to sponsor his daughter, son-in-law, and grandson to immigrate to the United States. Post-hearing, Applicant submitted information that his daughter, son-in-law, and grandson have successfully immigrated to the United States. This concern is no longer applicable. (SOR response; Tr. 35-38, 53-55; AE A, AE D)

SOR ¶ 1.balleged that Applicant’s son is a resident citizen of Cuba. SOR ¶ 1.dalleged that Applicant’s brother is a resident of the United States and a citizen of Cuba. Applicant has little or no contact with his adult son living in Cuba, stating that his last communication with him was “about two, three years” ago. Applicant is unsure whether his son in Cuba is currently married and believes that he is employed as a fisherman. (SOR response; Tr. 32-35, 41, 55) Applicant has no contact or communication with his brother living in the United States. (SOR response) Applicant is unable to travel to Cuba because he does not have a valid Cuban passport. (Tr. 52-53)

Applicant has an adult son living in the United States who owns a construction company. His son is married and has two children. Applicant sees his son and his family frequently, almost every week. Applicant also has an uncle and cousins living in the United States and maintains contact with them. (Tr. 42-44) All of Applicant’s assets are in the United States to include a home worth $300,000, a car worth $30,000, and a 20- foot boat worth $5,000. All of his bank accounts are in the United States. Applicant has no assets in Cuba. (Tr. 44-47, 56) Applicant intends to exercise his right to vote in the United States in the upcoming election. (Tr. 48) He spends his discretionary free time with his family and also enjoys fishing as a hobby. (Tr. 49)

Character Evidence

Applicant submitted two company performance evaluations for projects completed for the Department of Defense in 2014 and 2015. Applicant’s performance as project supervisor on both projects was lauded and singled out as above average. Applicant has proven himself as a trusted and valued employee. (Tr. 57-60; AE B, AE C)

Applicant’s personal representative and supervisor testified on his behalf. He described the nature of their construction business, which includes projects for the Department of Defense. Applicant enjoys an excellent reputation within his company for being trustworthy, having a good work ethic, and getting the job done. His supervisor strongly recommended Applicant for a security clearance. (Tr. 60-63)

Cuba

Cuba is a totalitarian, communist state, now headed by General Raul Castro. Cuba’s totalitarian regime is a one-party system, with the Cuban Communist Party being the only legal political party. For the first time since 1961, the United States re- established diplomatic relations with Cuba on July 20, 2015. The U.S. has long had a broad embargo against trading with Cuba, and Americans traveling to Cuba must first obtain a license to engage in any travel-related transactions involving travel to, from and within Cuba.

According to the U.S. State Department’s current guidance on travel to Cuba, Cuba routinely employs repressive methods against internal dissent and monitors and responds to perceived threats to authority. These methods may include physical and electronic surveillance, as well as detention and interrogation of both Cuban citizens and foreign visitors. Human rights conditions in Cuba remain poor, as the Cuban government limits fundamental freedoms, including freedom of expression and peaceful assembly. U.S. citizens visiting Cuba should be aware that any on-island activities may be subject to surveillance, and their contact with Cuban citizens monitored closely. In recent years, the Cuban government has detained U.S. citizens it suspects of engaging in activities perceived to undermine state security. U.S. citizens traveling to Cuba should be aware that the Cuban government may detain anyone at any time for and purpose, and should not expect that Cuba’s state security or judicial systems to carry out their responsibilities according to international norms.

According to the State Department’s 2014 Human Rights Report on Cuba, the principal human rights abuses included those involving the abridgement of the ability of citizens to change their government and the use of government threats, extrajudicial physical assault, intimidation, violent government-organized counter-protests against peaceful dissent, and harassment and detentions to prevent free expression and peaceful assembly. Additional human rights abuses such as short-term, arbitrary unlawful detentions and arrests, selective prosecution, denial of fair trial and travel restrictions continue.

Authorities interfered with privacy, engaging in pervasive monitoring of private communications. The government also placed severe limitations on freedom of speech and press, restricted internet access, maintained a monopoly on media outlets, circumscribed academic freedom and maintained significant restrictions on the ability of religious groups to meet and worship. The government refused to recognize independent human rights groups or permit them to function legally. In addition, the government continued to prevent workers from forming independent unions and otherwise exercising their labor rights.

Most human rights abuses were official acts committed at the direction of the government. Impunity for the perpetrators remained widespread. Cuba has long targeted the United States for intensive espionage activities. Since the 1980's, there have been numerous reported cases of Cuban government-sanctioned and supported espionage against the United States. Most recently, in June 2009, a U.S. State Department official and his wife were arrested and indicted for conspiracy to provide classified information to the Cuban government. The official had access to U.S. Government top secret sensitive compartmented information for many years, and he and his wife served as clandestine agents for Cuba for 30 years, beginning in 1978. In November 2009, both defendants pled guilty to spying charges and were later sentenced to life and 81 months, respectively.

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 her 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 Government’s concern:

[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 sets out two 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; and

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

The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in a foreign country and an applicant has contact with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). As a result of superseding events since Applicant’s SOR was issued, this concern has limited applicability given the fact that Applicant’s mother has since passed away and his daughter and her family have since immigrated to the United States. However, the fact that Applicant has a son living in Cuba with whom he occasionally has contact creates a potential risk of foreign exploitation, inducement, manipulation, pressure, or coercion meriting a close examination of all circumstances.

The Government produced some evidence of these two disqualifying conditions under AGs ¶¶ 7(a) and 7(b) as a result of Applicant’s admissions and evidence presented. The Government established Applicant’s son is a resident citizen of Cuba, and that Applicant maintains some contact with him, albeit very limited. The burden shifted to Applicant to produce evidence and prove mitigating conditions. As noted, superseding events have negated the concerns alleged in the SOR as pertaining to Applicant’s mother and his daughter and her family. The burden of disproving a mitigating condition never shifts to the Government.

Two foreign influence mitigating conditions under Guideline B ¶ 8 are potentially applicable to these disqualifying conditions:

(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.; and

(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.

Applying commonsense and life experience, there is a rebuttable presumption that a person has ties of affection for, and or obligation to his immediate family. ISCR Case No. 04-07766 at 4 (App. Bd. Sept. 26, 2006); ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002). Applicant has demonstrated minimum ties of affection for and or obligation to his son living in Cuba.

Applicant’s son is not employed by or associated with the Cuban government. The record does not identify what influence, if any, the Cuban government could exert on Applicant’s son as a result of his being a resident citizen of Cuba. However, his presence in Cuba creates concerns under this Guideline. As such, the burden shifted to Applicant to show his relative in Cuba does not create security risks.

“[T]he nature of the foreign government involved in the case, and the intelligence- gathering history of that government are important evidence that provides context for all the other evidence of the record . . .” See, e.g., ISCR Case No. 04-0776 at 3 (App. Bd. Sept. 26, 2006); see also ISCR Case No. 02-07772 at 7 (App. Bd. Aug. 28, 2003). As noted supra under the subheading “Cuba,” Cuba routinely employs repressive methods against internal dissent and monitors and responds to perceived threats to authority. These methods may include physical and electronic surveillance, as well as detention and interrogation of both Cuban citizens and foreign visitors.

Applicant denies having “divided loyalties” between the United States and any foreign country. It should be noted Applicant’s allegiance to the United States was not challenged in this proceeding. The issue is rather a positional one. Guideline B hinges not on what choice Applicant might make if he is forced to choose between his loyalty to his family and the United States, but rather hinges on the concept that Applicant should not be placed in a position where he is forced to make such a choice. ISCR Case No. 03-15205 at 3-4 (App. Bd. Jan. 21, 2005).

On balance, Applicant has met his burden of showing there is little likelihood that his relationship with his remaining family member in Cuba could create a risk for foreign influence or exploitation. This may not have been the case if Applicant’s mother was still alive or his daughter and her family were still living in Cuba. However, Applicant’s very limited relationship with his son in Cuba does not, in all likelihood, place him in this position.

Applicant is able to receive full credit under AG ¶¶ 8(a) and 8(b). His son maintains a non-political low-key position in Cuba. Applicant’s relationship with his son in Cuba is minimal when compared and contrasted with his immediate relatives in the United States. Applicant has “such deep and longstanding relationships and loyalties in the U.S., [h]e can be expected to resolve any conflict of interest in favor of the U.S. interest.” As noted, Applicant’s mother has since passed away and his daughter and her family have immigrated to the United States.

Applicant’s wife, son, uncle, and cousins reside in the United States. Applicant has lived in the United States since 1994, and is fully vested in the United States. He has worked for a defense contractor with dedication and distinction since 2002. Applicant has substantial property and investments in the United States, and no property or investments in Cuba. He has many friends and colleagues in the U.S. He is a loyal, dedicated U.S. citizen. Applicant’s work-related record documents his contribution to the national defense and corroborates his loyalty and trustworthiness.

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 (APF) 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) 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 discussion in the Analysis section under Guideline B is incorporated in this whole-person section. However further comments are warranted. Because foreign influence does not involve misconduct, voluntariness of participation, rehabilitation and behavior changes, etc., the eighth APF, “the potential for pressure, coercion, exploitation, or duress,” Directive ¶ E2.2.1.8, is the most relevant of the nine APFs to this adjudication.1 In addition to the eighth APF, other “[a]vailable, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.” Directive ¶ E2.2.1. Ultimately, the clearance decision is “an overall common sense determination.” Directive ¶ E2.2.3.

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’s 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 have carefully considered Applicant’s family connections and personal connections to Cuba, discussed supra, which gave rise to foreign influence concerns.

There is significant mitigating evidence that weighs towards granting Applicant’s security clearance. Applicant left Cuba under rather dramatic circumstances at age 24. He immigrated to the U.S. at age 40 and immediately pursued a career in the construction field. Applicant has lived continuously in the United States for the past 21 years. His wife, son, brother, uncle, cousins, and most recently his daughter and her family all live in United States. His assets consisting of approximately $350,000 in the United States are substantial in contrast to having no assets in Cuba. Applicant became a U.S. citizen in 2008, has a U.S. passport, and intends to exercise his right to vote in the United States.

Applicant maintains much more frequent contact with his U.S.-based family members than he does with his son residing in Cuba. His ties to the United States are stronger than his ties to his son in Cuba. There is no evidence Applicant has ever taken any action which could cause potential harm to the United States. He takes his loyalty to the United States very seriously, and he has worked diligently contributing to the national defense since 2002. The evidence contains no derogatory record evidence about the Applicant.

I considered the totality of Applicant’s family ties to Cuba. Cuba and the United States have an evolving relationship that continues to improve. In the unlikely event that Applicant’s son in Cuba was subjected to coercion or duress from the Cuban government, I find that because of his deep and longstanding relationships and loyalties in the United States, that Applicant would resolve any attempt to exert pressure, coercion, exploitation, or duress in favor of the United States. This case must be adjudged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. This analysis must answer the question whether there is a legitimate concern under the facts presented that Applicant may have divided loyalties or act in a way adverse to U.S. interests or some attempt may be made to exploit Applicant’s family members in such a way that this U.S. citizen would have to choose between his pledged loyalty to the United States and those family members. After weighing the disqualifying and mitigating conditions, all the facts and circumstances, in the context of the whole-person, I conclude Applicant has mitigated the security concerns pertaining to foreign influence.

To conclude, Applicant presented sufficient evidence to explain, extenuate, or mitigate the security concerns raised. Applicant met his ultimate burden of persuasion to obtain a favorable clearance decision. I take this position based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my “careful consideration of the whole-person factors” and supporting evidence, my application of the pertinent factors under the Adjudicative Process, and my interpretation of my responsibilities under the Guidelines. For the reasons stated, I conclude he is eligible for access to classified information.

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 – 1.d: For Applicant

CONCLUSION

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

____________________________ ROBERT J. TUIDER Administrative Judge

FOOTNOTES

1 See ISCR Case No. 02-24566 at 3 (App. Bd. July 17, 2006) (stating that an analysis under the eighth APF apparently without discussion of the other APFs was sustainable); ISCR Case No. 03-10954 at 5 (App. Bd. Mar. 8, 2006) (sole APF mentioned is eighth APF); ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) (remanding grant of clearance because Judge did not assess “the realistic potential for exploitation”), but see ISCR Case No. 04-00540 at 6 (App. Bd. Jan. 5, 2007) (rejecting contention that eighth APF is exclusive circumstance in whole-person analysis in foreign influence cases).