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ISCR Case 04-12681.h1 — CASE

ISCR Case 04-12681.h1denied

Case Headnote

ISCR Case No. 04-12681.h1

deniedSep 29, 2006· Hon. Roger C. Wesley· hearing

Summary

A 52-year-old U.S. naturalized citizen, originally from Iran, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant's Statement of Reasons detailed several allegations, including that his mother, two siblings, mother-in-law, and father-in-law are all citizens and residents of Iran. Additionally, his spouse is an Iranian citizen residing with him, and he maintains invested real property in Iran valued at approximately $5,000.

Further allegations noted that the applicant exercised dual citizenship with Iran and the U.S. He possessed an Iranian passport when interviewed in November 2004, having applied for and been issued it in January 1999, despite becoming a naturalized U.S. citizen in April 1989 and holding a valid U.S. passport by May 1989. He used his Iranian passport to enter and exit Iran in 2000, 2001, 2003, and 2004.

The denial was based on the finding that the applicant's maintenance of an Iranian passport and exercise of dual citizenship indicated a preference for Iran over the U.S. The presence of his immediate family members in Iran was deemed to create potential vulnerability to coercion or pressure from the Iranian government. The judge concluded that the applicant failed to demonstrate that his foreign ties would not compromise U.S. national security interests, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant maintained an Iranian passport and exercised dual citizenship, indicating a preference for Iran over the U.S.
The applicant's immediate family members reside in Iran, creating potential vulnerability to coercion or pressure from the Iranian government.
The applicant failed to demonstrate that his foreign ties would not compromise U.S. national security interests.

Conditions Referenced

Disqualifying

E2.A3.1.2.1raisedExercise of Dual Citizenship
E2.A3.1.2.2raisedPossession And/or Use of a Foreign Passport

Key Rule Quoted

“The exercise of dual citizenship raises concerns over an individual's allegiance to the United States and the potential for foreign influence that could result in the compromise of classified information.”

Procedural Posture

SOR issuedAug 15, 2006
Answer filedSep 2, 2005
Hearing heldJun 1, 2006
Decision dateSep 29, 2006

Cite For

Foreign Influence Concerns Due to Family Ties in Iran
Foreign Preference Due to Possession of an Iranian Passport
Impact of Dual Citizenship 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: denied

The judge found against the applicant on foreign influence concerns due to the presence of immediate family members in Iran, including a spouse and siblings, which posed potential risks of coercion or pressure. Despite the applicant's claims of mitigating factors, the judge concluded that these ties created unmitigated security risks, leading to the denial of the security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	have a mother and two siblings who are citizens and residents of Iran	Against Applicant	Parent in Foreign Country Immediate Family	Iran HEIGHTENED RISK	Admitted	—	—	—
2.b	have mother-in-law and father-in-law who are citizens and residents of Iran	Against Applicant	In Law in Foreign Country Immediate Family	Iran HEIGHTENED RISK	Admitted	—	—	—
2.c	have a spouse who is a citizen of Iran who resides with Applicant	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	Iran HEIGHTENED RISK	Admitted	—	—	—
2.d	maintain invested real property in Iran worth approximately $5,000.00	Against Applicant	Foreign Real Estate Financial or Property Interest	Iran HEIGHTENED RISK	Denied	—	—	—
2.e	specific text not stated in this decision	For Applicant	Unspecified Foreign Relationship Other	—	Unknown	—	—	—

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 C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The Administrative Judge found that the applicant's actions indicated a preference for Iran over the United States, primarily due to his possession and use of an Iranian passport and his failure to renounce his Iranian citizenship. Despite being a naturalized U.S. citizen, the applicant's ties to Iran and the potential vulnerability of his family members to coercion raised significant security concerns, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	exercised dual citizenship with Iran and the U.S.	Against Applicant	Foreign Citizenship Acquisition or Application	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.b	possessed an Iranian passport when interviewed by a DSS agent in November 2004	Against Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.c	applied for and was issued an Iranian passport in January 1999, even though he became a naturalized U.S. citizen in April 1989 and had a valid U.S. passport in May 1989	Against Applicant	Foreign Citizenship Acquisition or Application	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.d	used an Iranian passport instead of his U.S. passport to enter and exit Iran in 2000, 2001, 2003 and 2004	Against Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.e	maintains invested real property in Iran worth approximately $5,000.00	For Applicant	Foreign Benefits or Education	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline C). 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: September 29, 2006

In re:

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

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

Applicant for Security Clearance

CR Case No. 04-12681

DECISION OF ADMINISTRATIVE JUDGE

ROGER C. WESLEY

FOR GOVERNMENT

Kathryn D. MacKinnon, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant, who is a U.S. naturalized citizen and is a citizen of Iran solely by virtue of his birth and his parents' birth in the country, and who applied for and obtained an Iranian passport for use in traveling to and from Iran to see his mother and family, fails to absolve himself of preference concerns, despite his being a U.S. citizen since 1989 and his having no identified vested financial interests in Iran. Because Applicant's immediate and extended family members who reside in Iran and the U.S. (Applicant's spouse) are shown to be still potentially vulnerable to pressure or coercion, foreign influence concerns pose unmitigated security risks as well. Clearance is denied.

STATEMENT OF CASE

On August 15, 2006, 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 granted, continued, denied or revoked.

Applicant responded to the SOR on September 2, 2005, and requested a hearing. The case was initially assigned to another judge and was assigned to me on April 26, 2006, and was scheduled for hearing on June 1, 2006. A hearing was convened on June 1, 2006, for the purpose of considering whether it is clearly consistent with the national interest to grant, continue, deny, or revoke Applicant's security clearance. At hearing, the Government's case consisted of two exhibits and seven public documents covering Iraq, for which the Government asked that administrative notice be taken. Applicant relied on one witness (himself) and six exhibits. The transcript (R.T.) of the proceedings was received on June 9, 2006.

PROCEDURAL ISSUES Before the close of the hearing, Applicant asked that the record be kept open to afford him the opportunity to document Iran's recognition of dual citizenship, as well as pertinent pages of his Iran and U.S. passports. There being no objection from Department Counsel, and good cause being shown, Applicant was afforded three weeks to supplement the record (R.T., at 97-98). Within the time permitted, Applicant did not supplement the record.

SUMMARY OF PLEADINGS

Under Guideline C, Applicant is alleged to have (a) exercised dual citizenship with Iran and the U.S., (b) possessed an Iranian passport when interviewed by a DSS agent in November 2004, (c) applied for and was issued an Iranian passport in January 1999, even though he became a naturalized U.S. citizen in April 1989 and had a valid U.S. passport in May 1989, (d) used an Iranian passport instead of his U.S. passport to enter and exit Iran in 2000, 2001, 2003 and 2004, and (e) maintains invested real property in Iran worth approximately $5,000.00.

Under Guideline B, Applicant is alleged to (a) have a mother and two siblings who are citizens and residents of Iran, (b) have mother-in-law and father-in-law who are citizens and residents of Iran, (c) have a spouse who is a citizen of Iran who resides with Applicant, and (d) maintain invested real property in Iran worth approximately $5,000.00.

For his response to the SOR, Applicant Admits most of the allegations. He denies maintaining real property in Iran, which he claims to have sold. He claims to have used his Iranian passport for convenience reasons when traveling to and from Iran to visit his elderly mother. He claims his wife is in the process of applying for U.S. citizenship.

FINDINGS OF FACT

Applicant is a 52-year old senior mechanical engineer for a defense contractor who seeks a security clearance. The allegations covered in the SOR and admitted to by Applicant are incorporated herein by reference and adopted as relevant and material findings. Additional findings follow.

Background

Applicant was born in Iran to Iranian parents in 1954 and attended schools in Iran before immigrating to the U.S. in 1974 to pursue his educational interests (R.T., at 101). Since immigrating to the U.S., Applicant has earned a chemical engineering degree and MBA from accredited American universities. He has never served in the Iranian military or voted in Iranian elections, and sold the only property he owned in Iran (some investment real property valued at $5,000.00) to his brother (R.T., at 121). He estimates his pro-rata share of his mother's estate to be $100,000.00 (R.T., at 128). By contrast, he holds more substantial investment interests in the U.S.

Applicant applied for and became a naturalized U.S. citizen in April 1989 at the age of 35 (R.T., at 89). He applied for and was issued a U.S. passport in May 1999.

Applicant has possessed and maintained an Iranian passport since immigrating to the U.S. and has used it regularly to enter and exit Iran. Since 1996, he has made approximately 10 trips to Iran to see his aging mother and sister. When his Iranian passport expired, he applied for and received a new one in January 1999. This Iranian passport is not due to expire before 2009 (R.T., at 105). Most recently, he has traveled to Iran in 2000, 2001, 2003, and 2004. On each entry and exit from Iran he uses his Iranian passport for both convenience and security reasons, and assures of his intention to continue using his Iranian passport to enter and exit Iran (R.T., at 113-114). Albeit, he is familiar with other U.S. citizens entering and exiting Iraq on just their U.S. passports without encountering any difficulties (see R.T., at 108).

Besides his mother, Applicant has two siblings who are citizens and residents of Iran: a brother and sister (neither employed by the Iranian Government). His sister immigrated to the U.S. in December 2005 and obtained a green card before temporarily returning to Iran (R.T., at 120-122). Applicant's wife is a Iranian citizen with parents and siblings who are citizens/residents of Iran. None of his own family members or wife's family members have ever served in the Iranian military (including his father who passed away in 1991), or have any known connections with the Iranian Government (R.T., at 124-125). None of his family members have any plans to immigrate to the U.S. in the foreseeable future (R.T., at 124). His wife has lived in the U.S. since 1984, but never became a U.S. citizen. She returned wit from in Iran with Applicant in 2000 following their marriage and have no children (R.T., at 122). His wife applied for naturalized U.S. citizenship in December 2005 (see ex. A).

Since traveling to Iran using his Iranian passport, Applicant has never been questioned by Iranian authorities about his U.S. connections. Although, he is certain that Iranian authorities know he is a U.S. citizen. He expressed no intention of either relinquishing his Iranian passport or renouncing his Iranian citizenship. Applicant knows of no reason why any of his own family members or spouse's family would be at risk to pressure or compromise by the Iranian Government (R.T., at 132).

Political and economic background of Iran

According to official U.S. State Department documents, Iran is an Islamic republic that is constitutionally constructed and has a head of state, an elected president and counsel of ministers, a legislative body composed of a 290-member Islamic consultative assembly, and a judiciary (see U.S. Dept. of State Background Note on Iran, ex. I). Throughout its long history, Iran has been ruled by numerous dynasties. Following a nationalist uprising against the Shah in 1905, Iran enacted a limited constitution in 1906. Two years later, oil was discovered, and Iran began its steady ascension to a modern, secularized political system. Under the reign of Reza Shah Pahlavi (an Iranian officer, who seized control of the government in 1921), Iran established a central government and reasserted its authority over the tribes and provinces. During the Allied occupation of western Iran in 1941, the Shah was forced to abdicate and was succeeded by his son, Mohammad Reza Pahlavi (see U.S. Dept. of State Background Note on Iran, ex. I).

Domestic turmoil swept Iran in 1978 as the result of heated religious and political opposition to the Shah's rule and political/economic programs (especially the Shah's internal security and intelligence service). And in February 1979, exiled religious leader Ayatollah Ruhollah Khomeini returned from France to direct a revolution resulting in a new, theocratic republic guided by Islamic principles. Iran's 1979 constitution allocates the duties of the chosen religious leaders and governing bodies in such a way that their duties often overlap. Legislative issues on which the Majles (Iran's legislative governing body) and the Council of Guardians (making up Iran's religious leadership) fail to agree are resolved by the Council of Expediency (a body created by Ayatollah Khomeini in 1988). Following the Ayatollah's death in June 1989, the Assembly of Experts (an elected body of senior clerics) chose the outgoing president of the republic (Ali Khamenei) to be the Ayatollah's successor as national religious leader.

Iran's post-revolution has been marked by an eight-year war with Iran, internal political struggles and unrest, and economic disorder. Its post-revolution regime has been associated with human rights violations and political turmoil (including the seizure of the U.S. Embassy in November 1979 by Iranian militants). Succeeding power struggles have severely eroded the center and left of Iran's political institutions, leaving only the clergy. Both human rights and state sponsored terrorism remain serious problems in Iran and the Middle East. According to State Department reports, Iran's Islamic Revolutionary Guard Corps and Ministry of Intelligence and Security Forces have been directly involved in terrorist acts and continue to support Palestinian groups with leadership cadres in Syria and Lebanese Hizballah to use terrorism in pursuit of their goals (see U.S. Dept. of State Country Reports on Terrorism, ex. V). Long estranged from the West, Khomeini's regime charted regional goals that curtail the presence of the U.S. and other outside powers in the region. Iran's Islamic foreign policy continues to stress (1) vehement anti-U.S. and ant-Israel stances, (2) elimination of outside influence in the region, (3) support for Muslim political movements abroad, (4) critical support to non-state terrorist groups, and (5) considerable increase in diplomatic contacts with developing countries (see U.S. Dept. of State Background Note on Iran, ex. I and U.S. Dept. of State Country Reports on Terrorism, ex. V). In this vein, Iran maintains regular diplomatic and commercial relations with Russia and the former Soviet republics. Of special U.S. concern has been Russian sales of military equipment and technology to Iran.

Potential obstacles to improved relations between Iran and the U.S. include Iranian efforts to acquire nuclear weapons and other weapons of mass destruction; its support for and involvement in international terrorism; its support for violent opposition to the Middle East peace process; and its dismal human rights record (see U.S. Dept. of State Background Note on Iran, ex. I and Current and Projected National Security Threats to the U.S., February 2005, ex. VII). State Department country reports cite significant restrictions on the right of citizens to change their government, summary executions (minors included), disappearances, torture and severe punishments (such as amputations and flogging), violence by vigilante groups with ties to the government, poor prison conditions, arbitrary arrest and detention (including prolonged solitary confinement), lack of judicial independence and fair public trials, political prisoners and detainees, excessive government violence in Kurdish areas and unknown groups in Arab regions of the country, severe restrictions on civil liberties and freedom of religion, official corruption, government transparency deficiencies, legal and societal discrimination against women, ethnic and religious minorities, trafficking in persons, incitement of anti- Semitism, severe restriction of workers' rights, and child labor (see U.S. Department of State Country Reports on Human Rights Practices in Iran, February 2005 and March 2006, exs. II and III).

Addressing reports of human rights violations in Iran, the UN General Assembly adopted a human rights resolution on Iran in December 2005 that expressed serious concern at the continuing use of torture in Iran and cruel, inhuman and degrading treatment or punishment, such as floggings and amputations, as well as public executions (see U.S. Department of State Country Reports on Human Rights Practices in Iran, February 2005 and March 2006, exs. II and III).

Even though Iran's constitution prohibits arbitrary arrest and detention, these practices remain common. Its regular and paramilitary security forces that share responsibility with Iranian police for law enforcement and maintaining order are reported to have committed numerous, serious human rights abuses in recent years ((see U.S. Department of State Country Reports on Human Rights Practices in Iran, February 2005 and March 2006, exs. II and III). Security forces responsible for arrest and detention often do not inform family members of a prisoner's welfare and locations, and often deny visits by family members and counsel.

Presidential elections held in June 2005 produced a two-candidate run-off. Current president Mahmud Ahmadinejad won the runoff and took office as Iran's new president in August 2005. Islamic leader Khamenei and President Ahmadinejad continue to guide Iran's domestic and external affairs with the aid of their respective advisors (see U.S. Dept. of State Background Note on Iran, ex. I).

State Department travel warnings urge U.S. citizens to carefully consider the risks of travel to Iran (see US State Department Travel Warning of March 2004, ex. IV), a country with which the U.S. does not currently have diplomatic or consular relations. Citing Iran's non-recognition of dual citizenship and general declination to permit the Swiss to provide protective services for U.S. citizens who are also Iranian nationals, Americans who travel to Iran are strongly encouraged to register through the State Department's travel registration website (see US State Department Travel Warning of March 2004, ex. IV).

Dual citizens residing or visiting in Iran are subject to all Iranian laws affecting U.S. citizens, as well as laws applicable to persons of Iranian nationality that impose special obligations on citizens of that country. See U.S. State Department Consular Information Sheet of March 2004. Dual nationals remain subject to Iran's military service requirements and can be conscripted into service while on Iranian soil. While such conscripted service seems unlikely to confront Applicant, given his age and longstanding U.S. citizenship, it remains a possibility.

Character assessments

Applicant has received excellent performance reviews from his employer and has been recognized with salary increases (see ex. B). His judgment, reliability and trustworthiness do not appear to have been questioned by his supervisors and managers.

POLICIES

The Adjudicative Guidelines of the Directive (Change 4) list Guidelines to be considered by judges in the decision making process covering DOHA cases. These Guidelines require the judge to consider all of the "Conditions that could raise a security concern and may be disqualifying" (Disqualifying Conditions), if any, and all of the "Mitigating Conditions," if any, before deciding whether or not a security clearance should be granted, continued or denied. The Guidelines do not require the judge to assess these factors exclusively in arriving at a decision. In addition to the relevant Adjudicative Guidelines, judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive, which are intended to assist the judges in reaching a fair and impartial common sense decision.

Viewing the issues raised and evidence as a whole, the following adjudication policy factors are pertinent herein: Foreign Preference

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.

Foreign Influence

The Concern: A security risk may exist when an individual's immediate family, including co-habitants, and other persons to whom he or she may be bound by affection, influence, or are obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Burden of Proof

By virtue of the precepts framed by the Directive, a decision to grant or continue an Applicant's request for security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires Administrative Judges to make a common sense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. As with all adversary proceedings, the Judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the Judge cannot draw factual inferences that are grounded on speculation or conjecture.

The Government's initial burden is twofold: (1) It must prove any controverted fact[s] alleged in the Statement of Reasons and (2) it must demonstrate that the facts proven have a material bearing to the applicant's eligibility to obtain or maintain a security clearance. The required showing of material bearing, however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a deliberately or inadvertently fail to safeguard classified information.

Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the burden of proof shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation or mitigation of the Government's case.

CONCLUSION

Applicant is a senior mechanical engineer for a defense contractor who after being born and raised in Iran, immigrated to the U.S. in 1974 to pursue his education. Claiming the need for an Iranian passport to aid him in traveling to Iran to see his mother and family, he has continued to update his Iranian passport.

Dual citizenship concerns necessarily entail country allegiance assessments and invite critical considerations over acts indicating a preference or not for the interests of the foreign country over the interests of the U.S. In a different vein, the continued residence of his immediate family members (his mother and two siblings) and his wife's immediate family members in Iran raises potential concerns about their being vulnerable to future pressure or duress that could result in the compromise of classified information. The issues, as such, raise concerns over Applicant's preference for a foreign country over the U.S. and the potential for members of Applicant's immediate and extended family being placed at risk to pressure or duress to induce Applicant to divulge classified information he might be privy to.

Foreign Preference

By virtue of his birth in Iran to parents of Iranian descent and citizenship, Applicant was endowed with Iranian citizenship through his parents. This citizenship could not be lost except by express renunciation, approved by the Iranian Government, which Applicant has never explored. To the contrary, he applied for an Iranian passport (an active exercise of dual citizenship) in January 1999 and has since received one and used it regularly to enter and exit Iran on family-related matters. Risks of his being taken hostage behind Iranian lines and denied the customary diplomatic intercession made available to U.S. citizens traveling on U.S. passports cannot be discounted, given the country threat risks assigned Iran by the U.S. State Department's country reports and travel advisory.

Historically, the Appeal Board has tended to discount convenience/force of law distinctions when appraising legal necessity passport usage in multiple return to country situations (as here). See ISCR Case No. 99-0424 (February 8, 2001); ISCR Case No. 99-0254 (February 16, 2000). Exercise of choice to take out and retain his Iranian passport to ensure his safe and convenient travel to Iran to see his mother and family is itself a voluntary election, not a submission to legal compulsion, when made in juxtaposition to known security risks extant in traveling to a country that lacks acceptable security protections against terrorists operating within the country. By applying for and obtaining an Iranian passport, Applicant displayed a conscious preference for Iran, even if it was for perfectly logical and understandable reasons: wanting to see his immediate and extended family members.

So, even Applicant's limited exercise of dual citizenship is sufficient under the facts of this case to invoke Disqualifying Condition (DC) E2.A3.1.2.1 (The exercise of dual citizenship) and E2.A3.1.2.2 (Possession and/or use of a foreign passport) of the Adjudicative Guidelines for foreign preference. Use and/or possession of a foreign passport is considered a per se basis for denying or suspending a security clearance under the clarifying provisions of the memorandum of August 16, 2000 authored by the Asst SecDef forC3I ("the ASD C3i memorandum"), unless the foreign passport is surrendered, or the Applicant obtains official approval for its use from the appropriate agency of the U.S. Government. Nothing in the ASD C3i memorandum on foreign passports indicates that possession of a foreign passport may be extenuated or mitigated by an applicant's showing of personal hardship and delay typically encountered in utilizing the visa process involved with travel abroad on a US passport. DOHA's Appeal Board has construed the ASDC3i memorandum to be legally binding on DOHA administrative judges and the Board. See ISCR Case No. 02- 07625 (May 2004). Neither judges nor the Board retain jurisdiction to review of pass judgment on the wisdom or desirability of the ASD C3i memorandum. See ISCR Case No. 02-04237 (August 2003).

Besides his Iranian passport, Applicant also retains a small investment interest (approximately $5,000.00) in real property located in Iran and stands to inherit a pro-rata share of his mother's estate upon her death. While the retention of these interests to do not appear to be his principal motivating reasons for maintaining his Iranian citizenship and passport, they are factors to consider in appraising Appellant's overall country preference. DC E2.A3.1.2.6 (Using foreign citizenship to protect financial or business interests in another country) of the foreign preference guidelines has some applicability to the facts of Applicant's case.

Concerns over continued Applicant preference for Iran are considerable for so long as he retains his Iranian passport and dual Iranian citizenship. While his only financial interests in Iran are inchoate and still very uncertain relative to his much more substantial holdings in the U.S. to mitigate these interests as indicators of a preference for Iran over his adopted country, unsettled questions are still very much in evidence about Applicant's reluctance to take any bold steps towards surrender of his Iranian passport and renunciation of his Iranian citizenship. Ultimately, too many preference questions loom at the present time to credit Applicant with satisfying the heavy mitigation burden imposed on applicants by the Appeal Board.

Considering all of the circumstances surrounding Applicant's dual citizenship exercise and absence of meaningful mitigation efforts, conclusions warrant that Applicant's exhibited active dual citizenship by his taking out and using an Iranian passport to travel to Iran after becoming a naturalized U.S. citizen. In so doing, he has demonstrated a preference for Iran under the governing guidelines that has not been mitigated by documented surrender of the passport and expressed intentions to renounce his dual Iranian citizenship. This is not to suggest any disloyalty to the U.S., Applicant's adopted country. But such firm Applicant commitments are required to satisfy expressed Appeal Board burden requirements when it comes to successfully discounting residual security risks that exist with his continued exercise of dual Iranian citizenship. Unfavorable conclusions warrant with respect to subparagraphs 1.a through 1.dof Guideline C. Applicant is entitled to favorable conclusions with respect to subparagraph 1.e due to the relative uncertainty of his only Iranian financial interests (an expected inheritance from his mother) and his considerably large vested assets in the U.S.

Foreign Influence

Besides foreign preference concerns, Government finds security risks associated with (a) Applicant's mother and two siblings being citizens of Iran and his immediate family members (i.e., sister and brothers), (b) his wife, who resides with Applicant, being a citizen of Iran, (c) his extended family members (i.e., his mother-in-law and father-in-law, sister-in-law) being citizens and residents fo Iran, and (d) small investment interest in Iran. Applicant's ties to his immediate family members appear to be particularly close, and he is of record in communicating with them regularly, in addition to visiting them almost annually since 2000. His family connections in Iran and the U.S. are sufficient to invite application of Disqualifying Condition (DC) E2.A2.1.2.1 (An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country) and E2.A2.1.2.2 (Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists). However, his only remaining financial interest in Iran is his expected inheritance from his mother, is so uncertain relative to his vested U.S. investments as to negate any application of E2.A2.1.2.8 (A substantial financial interest in a country, or in any foreign-owned or -operated business that could make the individual vulnerable to foreign influence).

The Adjudicative Guidelines governing security clearances do not dictate per se results or mandate particular outcomes for any chosen set of guidelines covering risks of foreign influence. What is considered to be an acceptable risk in one foreign country may not be in another. While foreign influence cases must by practical necessity be weighed on a case- by-case basis, guidelines are available for referencing. Personnel security assessments continue to be governed by the same Change 4 requirements of the Directive for appraising the security risks associated with the individual's having family abroad, which include both common sense assessments of country risks and information available from public sources.

So, under these adjudicative guidelines, while an applicant with immediate and extended family domiciled in a hypothetical hostile country might pose a risk of a hostage situation, he might conversely be able to neutralize material risks of exploitation of immediate and/or extended family members residing in a friendly country. Iran is consistently characterized as a country historically hostile to American political and security interests since the 1979 fall of the Shah of Iran and ensuing establishment of an Islamic republic with close ties and support to non-state terrorist groups. Based on reported terrorist activities in the country and in other countries in the region with support links to Iran, Iran cannot be deemed to provide an acceptable political and security environment for managing hostage risks. Without such assurances, no reasonable conclusions can be reached that Applicant's immediate and extended family members are not in a position to be exploited by Iranian authorities.

While the foreign influence provisions of the Adjudicative Guidelines are ostensibly neutral as to the character of the subject country, they should not be construed to ignore the geopolitical aims and policies of the particular foreign regime involved. Iran is a constitutional state that is officially characterized as an Islamic republic. Its regime is governed by executive and legislative branches whose leadership and influence is directed and circumscribed by Islamic tenets. Iran is also a country with a considerable history of human rights violations and demonstrated hostility towards America and its longstanding institutional respect for human rights and the rule of law.

Because Iran remains a hostile country with no diplomatic relations with the U.S., and one that lacks a secure infrastructure and track record for respecting human rights and the rule of law, the risk of a pressure or influence situation involving an immediate or extended family member of Applicant's cannot be safely discounted. Iran's strategic location and political character, when coupled with Applicant's own demonstrated preference for the country, conduce to create security concerns over risks of direct or indirect pressure or influence of an immediate or extended family member of Applicant's by Iranian authorities. These concerns are not sufficiently mitigated to permit safe predictive judgments about Applicant's ability to withstand risks of exploitation and pressure attributable to his familial relationships and contacts with his immediate and extended family members domiciled in Iran.

So, given the continued presence of Applicant's immediate and extended family members in Iran, their presence there presents potential risks of pressure and coercion. Their Iranian citizenship and residence poses continuing security concerns, for which the mitigation benefits of MC E2.A2.1.3.1 (A determination that the presence of immediate family members in question are not agents of a foreign power or in a position to be exploited by a foreign power in any way that could force the individual to choose between loyalty to the person involved and the United States) of the Adjudicative Guidelines may not be availed of by Applicant. Overall, Applicant fails to mitigate security concerns associated with his having immediate and extended family members residing in Iran as citizens of Iran. Unfavorable conclusions warrant with respect to subparagraphs 2.a through 2.dof Guideline B. Favorable conclusions warrant with respect to subparagraph 2.e due to the relative uncertainty of his only Iranian financial interests (an expected inheritance from his mother) and his considerably large vested assets in the U.S.

In reaching my decision, I have considered the evidence as a whole, including each of the factors and conditions enumerated in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive.

FORMAL FINDINGS

In reviewing the allegations of the SOR in the context of the FINDINGS OF FACT, CONCLUSIONS and the FACTORS and CONDITIONS listed above, this Administrative Judge makes the following separate FORMAL FINDINGS with respect to Appellant's eligibility for a security clearance:

GUIDELINE C (FOREIGN PREFERENCE): AGAINST APPLICANT

Sub-para. 1.a: AGAINST APPLICANT

Sub-para. 1.b: AGAINST APPLICANT

Sub-para. 1.c: AGAINST APPLICANT

Sub-para. 1.d: AGAINST APPLICANT

Sub-para. 1.e: FOR APPLICANT

GUIDELINE B: (FOREIGN INFLUENCE): AGAINST APPLICANT

Sub-para. 2.a: AGAINST APPLICANT

Sub-para. 2.b: AGAINST APPLICANT

Sub-para. 2.c: AGAINST APPLICANT

Sub-para. 2.d: AGAINST APPLICANT

Sub-para. 2.e: FOR APPLICANT

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue Applicant's security clearance.

Roger C. Wesley

Administrative Judge

FOOTNOTES

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