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ISCR Case 03-14347.h1 — CASE

ISCR Case 03-14347.h1granted

Case Headnote

ISCR Case No. 03-14347.h1

grantedMar 11, 2005· Hon. Joseph Testan· hearing

Summary

A 42-year-old native-born U.S. citizen, employed by a defense contractor, was granted a security clearance despite initial concerns under Guideline B (Foreign Influence) and Guideline J (Criminal Conduct). The Statement of Reasons alleged criminal conduct due to her husband's Mexican citizenship and prior illegal residency in the U.S. The applicant's counsel argued that a violation of 8 U.S.C. 1324 required both bringing in and harboring an illegal alien, an argument the judge found without merit.

However, the judge applied mitigating conditions and ultimately granted the clearance. Key factors included the applicant's long history in defense contracting and her husband's acquisition of legal status prior to the hearing.

Crucially, the judge determined that the applicant's husband was not an agent of Mexico and was not in a position to be exploited by the Mexican government. This finding addressed the foreign influence concerns, leading to the favorable outcome.

Why the Applicant Prevailed

The applicant is a native-born U.S. citizen with a long history of employment in defense contracting.
The applicant's husband, a former illegal resident, obtained legal status prior to the hearing.
The judge determined that the applicant's husband was not an agent of Mexico or in a position to be exploited.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedForeign Influence

Mitigating

E2.A2.1.3.1appliedForeign InfluenceThe applicant's husband is not an agent of a foreign power or in a position to be exploited.

Key Rule Quoted

“It is clearly consistent with the national interest for her to have access to classified information.”

Procedural Posture

SOR issuedApr 23, 2004
Answer filedJun 17, 2004
Hearing heldFeb 3, 2005
Decision dateMar 11, 2005

Cite For

Consideration of Foreign Influence Under Guideline B
Mitigating Conditions Related to Family Ties Under Guideline B
Impact of Legal Status on Security Clearance Eligibility

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant's husband, a citizen of Mexico, does not pose a foreign influence risk that would compromise the applicant's loyalty to the United States. The applicant's efforts to legalize her husband's status and her strong ties to the U.S. were significant factors in the decision. Clearance is granted.

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	The SOR simply alleged that applicant engaged in criminal conduct because her husband is a citizen of Mexico currently residing illegally in the United States.	For Applicant	Spouse Dual or Foreign Citizen Immediate Family	Mexico	Denied with Explanation	(e) shared living quarters creating a heightened risk	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant did not engage in criminal conduct related to her husband's immigration status. The allegations of criminal conduct were not substantiated, leading to a ruling in favor of the applicant under Guideline J.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	The SOR simply alleged that applicant engaged in criminal conduct because her husband is a citizen of Mexico currently residing illegally in the United States.	For Applicant	Unspecified Criminal Conduct	—	Denied	—	—	—
1.b	See, United States v. De Evans, 531 F.2d 428 (9th Cir. 1976)	For Applicant	Unspecified Criminal Conduct	—	Denied	—	—	—
1.c	Applicant's counsel's argument that to violate 8 U.S.C.1324 an individual must both bring in and harbor an illegal alien is completely without merit.	For Applicant	Unspecified Criminal Conduct	—	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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

SYNOPSIS

KEYWORD: Foreign Influence; Criminal Conduct

DIGEST: Applicant is an honest, hardworking native born United States citizen. Her husband's Mexican citizenship does not leave her in a position to be exploited. Clearance is granted.

CASENO: 03-14347.h1

DATE: 03/11/2005

DATE: March 11, 2005

In Re:

---------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 03-14347

DECISION OF ADMINISTRATIVE JUDGE

JOSEPH TESTAN

APPEARANCES

SYNOPSIS

Applicant is an honest, hardworking native born United States citizen. Her husband's Mexican citizenship does not leave her in a position to be exploited. Clearance is granted.

STATEMENT OF CASE

On April 23, 2004, 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, 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 June 17, 2004. The case was assigned to me on August 25, 2004. A Notice of Hearing was issued on January 5, 2005, and the hearing was held on February 3, 2005. The transcript was received on February 15, 2005.

FINDINGS OF FACT

Applicant is 42 years of age. She is employed by a defense contractor, and has held a security clearance since 1985.

Applicant was born in the United States. She met her husband, a citizen of Mexico living illegally in the United States since he was a teenager, in 1980. She started dating him in 1982. During the time she was dating him through the time they were married in 1986, she had no knowledge of his immigration status. In 1987, she finally discovered he was in the United States illegally when they filed their tax return and the social security number he used came back as invalid. They then began the process of obtaining legal status for him, but despite numerous attempts between the late 1980sand 2004, they were unsuccessful. Finally, in April 2004, he obtained a work permit, which legalized his presence in the United States. According to applicant, her husband hopes to become a permanent resident and then a United States citizen because they "have four children that [they] are raising, and it would benefit the whole family if he is, you know, became a [United States] citizen" (TR at 39). Applicant's husband authored a letter in which he stated, "someday I would like to serve this country and take the precious oath of becoming a proud American" (Exhibit H). All four of their children were born in the United States.

Applicant's husband has nine siblings, all of whom are citizens and residents of Mexico. To applicant's knowledge, none of the siblings works for the Mexican government. None of them has any idea where applicant works or what she does for a living. Applicant and her husband talk with the siblings about twice a year.

Applicant's supervisor appeared at the hearing and testified applicant is an outstanding employee. One of applicant's former supervisors also appeared at the hearing. He testified that applicant has always been candid and forthright with him.

CONCLUSION

Applicant was born in born in the United States. In 1986, she married a Mexican citizen who, unbeknownst to her, had been living illegally in the United States since he was a teenager. When applicant found out about her husband's illegal status in 1987, she began a multi-year effort to legalize his presence in the United States. This effort paid off in April 2004 when he received a permit to work in the United States. Although not alleged in the SOR, the Government argues that applicant engaged in illegal conduct by harboring her husband in the United States prior to April 2004 in violation of 8 U.S.C. 1324. (1) Although a good-faith argument could be made that applicant violated 8 U.S.C. 1324, (2) based on the facts of this case, particularly the fact that applicant's husband was living illegally in the United States long before he married applicant, I conclude that her conduct did not violate 8 U.S.C. 1324. (3)

With respect to Guideline B, the fact that applicant's husband is a citizen of Mexico requires application of Disqualifying Condition E2.A2.1.2.1 (An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident of or present in, a foreign country). Based on the evidence presented, I conclude that applicant's husband is not an agent of Mexico, or in a position to be exploited by Mexico in a way that could force applicant to choose between loyalty to him and loyalty to the United States. Accordingly, 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 to this case.

Based on the foregoing, and on my conclusion that applicant is an honest, hardworking, loyal native born United States citizen, I conclude that it is clearly consistent with the national interest for her to have access to classified information.

FORMAL FINDINGS

GUIDELINE B: FOR THE APPLICANT

GUIDELINE J: 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. The SOR simply alleged that applicant engaged in criminal conduct because her husband is a citizen of Mexico currently residing illegally in the United States.

2. See, United States v. De Evans, 531 F.2d 428 (9th Cir. 1976)

3. Applicant's counsel's argument that to violate 8 U.S.C.1324 an individual must both bring in and harbor an illegal alien is completely without merit.

FOOTNOTES

FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Richard B. Bracken, Esq. file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-14347.h1.htm[6/24/2021 3:22:55 PM] file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-14347.h1.htm[6/24/2021 3:22:55 PM] file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-14347.h1.htm[6/24/2021 3:22:55 PM] file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-14347.h1.htm[6/24/2021 3:22:55 PM]