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ISCR Case 15-00469.h1 — CASE

ISCR Case 15-00469.h1granted

Case Headnote

ISCR Case No. 15-00469.h1

grantedJun 14, 2016· Hon. Noreen A. Lynch· hearing

Summary

A 44-year-old naturalized U.S. citizen, originally from Afghanistan, was granted a security clearance despite initial concerns under Guideline B (Foreign Influence). The concerns arose because his in-laws resided in Afghanistan, triggering disqualifying conditions AG ¶ 7(a) and AG ¶ 7(b).

However, the applicant successfully mitigated these issues by demonstrating a lack of contact with his in-laws following his separation from his wife, who is also a U.S. citizen. He further established strong ties to the United States, including immediate family such as siblings and a second wife, all U.S. citizens.

The administrative judge applied mitigating condition AG ¶ 8(b), noting that the applicant had not discussed his work with any foreign contacts and held no financial interests in Afghanistan. Given these factors, the judge determined that granting the security clearance was consistent with national interest.

Why the Applicant Prevailed

Applicant no longer has contact with his in-laws in Afghanistan due to separation from his wife.
Applicant has strong family ties in the U.S., including siblings and a second wife who is a U.S. citizen.
Applicant has not discussed his work with any foreign contacts and has no financial interests in Afghanistan.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to a Foreign Government

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties

Key Rule Quoted

“The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.”

Procedural Posture

SOR issuedAug 22, 2015
Answer filed09/2015
Hearing heldN/AApplicant requested a hearing based on the written record.
Decision dateJun 14, 2016

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Family Ties in Security Clearance Determinations
Consideration of the Whole-person Concept in Adjudication

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 long-standing ties to the United States and the lack of current contact with his in-laws in Afghanistan. The applicant, a naturalized U.S. citizen, has no financial interests in Afghanistan and has demonstrated a commitment to serving the U.S. military. As a result, eligibility for access to classified information was granted.

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–1.f	6 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	— HEIGHTENED RISK		—	—	—

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. 15-00469 ) Applicant for Security Clearance

For Government: Robert J. Kilmartin, Esq., Department Counsel For Applicant: Pro se

06/14/2016 ______________

STATEMENT OF CASE

______________

LYNCH, Noreen, A., Administrative Judge:

On August 22, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) alleging security concerns arising 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 (AG) implemented in September 2006.

Applicant timely answered the SOR and requested a hearing based on the written record in lieu of a hearing. The case was assigned to me on May 20, 2016. Counsel submitted a File of Relevant Material (FORM), dated January 21, 2016. Applicant received the FORM on February 11, 2016. Applicant responded to the FORM. Based on a review of the case file, eligibility for access to classified information is granted. . Procedural and Evidentiary Rulings

The Government, through Department Counsel, requested that I take administrative notice of certain facts relating to Afghanistan. The request and the attached documents are included in the record file. The facts administratively noticed are set out in the Findings of Fact, below.

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted the factual allegations under Guideline B in ¶¶ 1.c-1.d., and 1.f., and provided explanations for the denials. His admissions are incorporated in my findings of fact. (Item 1) I make the following findings:

Applicant is 44 years old and was born in Afghanistan. He came to the United States with his family in 1984. His parents and his siblings lived in the United States for 31 years. He became a naturalized U.S. citizen in 1994. Applicant completed his security clearance application (SCA) in 2010. He has been employed as a linguist for Mission Essential Personnel (MEP) since November 2010 for the U.S. Army. He worked in various jobs in the United States before his work for the U.S. Army. He has held a “force protection.” (Item 2)

Applicant divorced his first wife who was a U.S. citizen. In 2006, he remarried and his second wife lives in the United States. He noted on his 2010 SCA that he was sponsoring her for citizenship. He stated that he has never discussed his work. She has no affiliation with the Afghan government. She currently has a green card. In his response to the FORM, Applicant noted that he is now separated from her and does not have contact with his in-laws.

In his answer to the SOR, dated September 2015, Applicant was still married to his second wife. He stated that his mother-in-law and father-in-law are citizens and residents of Afghanistan. He used to contact them once a month to discuss the health of his children. He has never talked to them about his work. He has no other extended family members in Afghanistan. Applicant admitted that he sent money to his in-laws in the amount of $300-$400 a month, as his father-in-law was unemployed. He no longer has any contact with them.

Applicant stated that he has purchased two homes in the United States. (Item 1) He also noted in his 2014 affidavit that he had no addresses or phone numbers for other former friends in Afghanistan. (Item 4) He listed friends who were born in Afghanistan who have lived in the United States for many years. (Item 2)

Applicant’s two brothers have lived in the United States for over 30 years. They both have green cards and are in the process of obtaining U.S. citizenship. They both work for car body shops. (Answer to SOR) They have no affiliation with the Afghan government or any political groups. They have not been outside the United States for any travel. (Response to FORM) His sisters are naturalized U.S. citizens and live in the United States. (Item 1)

Applicant considers himself proud to be a U.S. citizen. He came to the United States with his family and worked in the United States. His parents realized the value of life in the United States. (Response to FORM) He is happy with his job helping the U.S. Army and wants to continue his work. Applicant does not own any property in Afghanistan. He has no financial interests in Afghanistan. He is proud to serve the U.S. military and will always support them. (Response to FORM)

Administrative Notice

I take administrative notice of the following facts about Afghanistan, including the fact that Afghanistan has been an independent nation since August 19, 1919, after the British relinquished control. A monarch ruled from 1919 until a military coup in 1973. Following a Soviet-supported coup in 1978, a Marxist government emerged. In December 1979, Soviet forces invaded and occupied Afghanistan. Afghan freedom fighters, known as mujaheddin, opposed the communist regime. The resistance movement eventually led to an agreement known as the Geneva Accords, signed by Pakistan, Afghanistan, the United States, and the Soviet Union which ensured Soviet forces withdrew by February 1989.

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

After the September 11, 2001 terrorist attacks, demands to expel Bin Laden and his followers were rejected by the Taliban. U.S. forces and a coalition partnership commenced military operations in October 2001 that forced the Taliban out of power by November 2001. A new democratic government took power in 2004. Despite progress made since the Taliban was deposed, Afghanistan still faces many daunting challenges. Among these challenges are defeating terrorists and insurgents, recovering from over three decades of civil strife, and rebuilding a shattered physical, economic, and political infrastructure.

The Taliban, Al-Qa’ida, other insurgent groups, and anti-Coalition organizations continue to operate in Afghanistan, resulting in numerous attacks and deaths. Insurgents have targeted non-governmental organizations (NGOs), Afghan journalists, government workers, and UN workers. Instability along the Pakistan-Afghan frontier continued to provide al-Qa’ida with leadership mobility and the ability to conduct training and operational planning, targeting Western Europe and U.S. interests in particular. Kabul, in particular, has seen a rise in militant attacks, including rocket attacks, vehicle- borne improvised explosive devices (IEDs), and suicide bombings. At this time, the risk of terrorist activities remains extremely high. The country’s human rights record remains poor and violence is rampant. According to recent reports from the U.S. Department of State, insurgents continue to plan attacks and kidnappings of Americans and other Western nationals. Travel warnings are ongoing. Overall, the State Department has declared that the security threat to all American citizens in Afghanistan remains critical, as no part of Afghanistan is immune from violence.

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

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

In 2013, insurgents conducted a significant number of large vehicle-borne improvised explosive device attacks, targeting Coalition Forces (CF) bases, military convoys, and Afghan government buildings, mostly in southern and eastern Afghanistan, including Kabul. Corruption is endemic throughout society, and flows of money from the military, international donors and the drug trade continue to exacerbate the problem.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has “the authority to . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

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

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

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

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

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

ANALYSIS

Guideline B (Foreign Influence)

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

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

A disqualifying condition may be raised by “contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.” AG ¶ 7(a). A disqualifying condition also may be raised by “connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information.” AG ¶ 7(b). Finally, AG ¶ 7 (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” may be disqualifying conditions in this case.

Applicant’s mother-in-law and father-in-law are citizens and residents of Afghanistan. He no longer has contact with them due to his separation from his second spouse who lives in the United States and is in the process of obtaining U.S. citizenship. He did support them in the amount of about $300-$400 a month, as his father-in-law was unemployed. Since the separation he has no communication with them. His second wife lives in the United States. AG ¶¶ 7(a) and (b) are raised.

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

Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).

Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. See ISCR Case No. 00- 0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002). Nevertheless, the nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism.

Security concerns under this guideline can be mitigated by showing that “the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.” AG ¶ 8(a). The totality of an applicant’s family ties to a foreign country as well as each individual family tie must be considered. ISCR Case No. 01-22693 at 7 (App. Bd. Sep. 22, 2003). Similarly, AG 8(b) “there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest” applies.

Applicant has presented sufficient information to mitigate the security concerns given the fact that he no longer contacts his in-laws in Afghanistan. His entire family came to the United States over 30 years ago. He has two brothers who live in the United States and are in the process of obtaining citizenship. He has two sisters who are naturalized U.S. citizens. His second wife is living in the United States and has no affiliation with the Afghan government. They are now separated.

Applicant’s immediate family members reside in the United States. Applicant has been in the United States since 1984. He is a naturalized U.S. citizen. His home is in the United States. He is grateful that he can serve the U.S. Army as a linguist in the MEP program. He has done this since 2010. He no longer sends money to his in-laws. He has spoken to no one about his work. He is proud to serve the military. (Response to FORM)

While Afghanistan’s human rights record under the Taliban was dismal and serious problems continue, its human rights record is slowly improving. Applicant has worked in the U.S. Embassy in Afghanistan. There is no evidence that Applicant or his family has been pressured by any organization to provide any type of information, classified, or otherwise, to Afghanistan.

In every case where a family member lives overseas, there is a risk of pressure on this relative and through them upon the holder of a security clearance. Applicant has ties to the United States and no ties at present to his in-laws in Afghanistan. Applicant has presented sufficient mitigation under AG ¶ 8(b) and foreign influence concerns are mitigated.

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 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. As noted above, the ultimate burden of persuasion is on the applicant seeking a security clearance.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the whole-person factors. Applicant is a man who was born in Afghanistan. He came to the United States in 1984 with his family. He became a naturalized U.S. citizen in 1994. His parents lived in the United States supporting their children for over 30 years. He has sisters who are naturalized U.S. citizens. His two brothers live in the United States and are in the process of becoming U.S. citizens. After divorcing his first wife, Applicant remarried in 2006 and his current wife lives in the United States. She has a green card and is in the process of obtaining U.S. citizenship. Applicant and his wife are now separated. Therefore the in-laws in Afghanistan are no longer in communication with Applicant. He no longer sends them money.

Since 2010, Applicant has worked as a linguist with MEP for the U.S. Army. He lives in Afghanistan and performs his work at the installation. Before the linguist position, he worked in many positions in the United States. He is happy to serve the U.S. government. He has provided sufficient information to mitigate foreign influence security concerns.

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.f: 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 a security clearance. Clearance is granted.

NOREEN A. LYNCH. Administrative Judge