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ISCR 02-29528.h1: Guideline B security clearance hearing, granted (2005) · CASE

ISCR Case 02-29528.h1granted

Case headnote

ISCR Case No. 02-29528.h1

grantedApr 7, 2005· Hon. Joseph Testan· hearing

Summary

This case involved a 45-year-old defense contractor, originally from Ethiopia, who has resided in the United States since 1995 and became a citizen in 2001. The Statement of Reasons raised concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). Specifically, Guideline B concerns stemmed from the applicant's mother, father, and three siblings being citizens and residents of Ethiopia, with whom the applicant maintained contact generally during holidays and approximately once every three months by telephone. However, it was noted that none of these family members worked for a foreign government or held political office.

Guideline C concerns arose because the applicant failed to disclose travel to Ethiopia in 2001 on a Security Clearance Application. Disqualifying conditions were raised under E2.A2.1.2.1, while mitigating conditions were applied under E2.A2.1.3.1.

The judge ultimately granted the security clearance. The decision was based on findings that the applicant's family members in Ethiopia were not agents of a foreign power and could not be exploited to create loyalty conflicts. Furthermore, the applicant demonstrated a clear preference for the United States over Ethiopia since moving to the U.S. in 1995.

Why the applicant prevailed

The applicant's family members in Ethiopia are not agents of a foreign power and cannot be exploited to force loyalty conflicts.
The applicant has shown a clear preference for the United States over Ethiopia since moving to the U.S. in 1995.

Conditions referenced

Disqualifying

E2.A2.1.2.1raisedAn Immediate Family Member Is a Citizen Of, or Resident or Present In, a Foreign Country.

Mitigating

E2.A2.1.3.1appliedA Determination That the Immediate Family Member(s) in Question Are Not Agents of a Foreign Power or in a Position to Be Exploited by a Foreign Power.

Key rule quoted

“When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.”
Guideline C, E2.A3.1.1.

Procedural posture

SOR issuedNov 14, 2003
Answer filedJan 9, 2004Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateApr 7, 2005

Cite for

Application of Mitigating Conditions Regarding Family Ties Under Guideline B
Consideration of Preference for the United States Over Foreign Countries Under Guideline C
Impact of Family Members' Status on Security Clearance Decisions.

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 45: “Applicant is a 45 year old employee of a defense contractor.”

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 family ties to Ethiopia did not pose a security risk, as none of the family members were affiliated with the Ethiopian government or in a position to be exploited. The applicant's preference for the United States was established through his actions since moving there in 1995, leading to a decision to grant security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Home or Property · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's conduct indicated a clear preference for the United States over Ethiopia. The only allegation under Guideline C was related to the applicant's failure to disclose a trip to Ethiopia, which the judge did not find indicative of foreign preference. Therefore, Guideline C was resolved in favor of the applicant.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation

Descriptive standardized rendering of a decided public case. 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

DATE: April 7, 2005 In Re: --------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-29528 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant's conduct since moving to the United States in 1995 has indicated a clear preference for the United States over Ethiopia. Clearance is granted.

STATEMENT OF CASE

On November 14, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as administratively reissued on April 20, 1999), issued a Statement of Reasons (SOR) to applicant which 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 applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant responded to the SOR in writing on January 9, 2004, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case (FORM) on or about May 17, 2004. Applicant filed a response to the FORM on or about June 5, 2004. The case was assigned to me on July 9, 2004.

FINDINGS OF FACT

Applicant is a 45 year old employee of a defense contractor. Applicant was born in the Ethiopia. He has lived in the United States continuously since at least 1995. In 2001, he became a United States citizen. Applicant's mother, father, and three of his siblings are citizens and residents of the Ethiopia. Applicant has contact with them "generally during the holidays and approximately once every three months by telephone." None of these family members "worked or do work for a foreign government, nor have they held any political office"(Exhibit 5). Two of applicant's siblings reside in the United States. One became a United States citizen in 2002; the other remains a citizen of Ethiopia. Applicant has no financial ties with, and owns no property in, Ethiopia. Applicant traveled to Ethiopia for about three weeks in early 2001. This was his first trip in 13 years to visit his family. He did not disclose this trip on a Security Clearance Application (SCA) he executed in April 2002. The Government concedes this was not an intentional misrepresentation. (1)

CONCLUSION

With respect to Guideline B, the evidence establishes that applicant's mother, father, and three of his siblings are citizens and residents of Ethiopia and that one of his siblings, although a resident of the United States, is a citizen of Ethiopia. These facts require application of Disqualifying Condition E2.A2.1.2.1 (an immediate family member . . . is a citizen of, or resident or present in, a foreign country). There is no evidence that any of applicant's Ethiopian family members are agents of Ethiopia. In addition, there is no evidence that any of these family members are in a position to be exploited by the Ethiopia in a way that could force applicant to choose between loyalty to these family members and loyalty to the United States. Based on these facts, Mitigating Condition E2.A2.1.3.1 (a determination that the immediate family member(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States), is applicable, and Guideline B is found for applicant. With respect to Guideline C, the only factual allegation is that applicant failed to disclose on an SCA that he traveled to Ethiopia in 2001. It is difficult to understand how this alleged falsification indicates applicant has a preference for Ethiopia over the United States. (2) In any event, the evidence establishes that since at least 1995, applicant's conduct has indicated a clear preference for the United States over the Ethiopia. Given this fact, Guideline C is found for applicant.

FORMAL FINDINGS

GUIDELINE B: FOR THE APPLICANT Subparagraph 1a: for the applicant Subparagraph 1b: for the applicant Subparagraph 1c: for the applicant GUIDELINE C: FOR THE APPLICANT Subparagraph 2a: for the applicant

DECISION

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 a security clearance for applicant. ____________________________ Joseph Testan Administrative Judge 1. FORM, Page 6. 2. Guideline C, E2.A3.1.1., The Concern: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.

FOOTNOTES

02-29528.h1 FOR GOVERNMENT Daniel F. Crowley, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-29528.h1.html[6/24/2021 11:15:04 AM] 02-29528.h1