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ISCR Case 04-12932.h1 — CASE

ISCR Case 04-12932.h1denied

Case Headnote

ISCR Case No. 04-12932.h1

deniedDec 9, 2005· Hon. Martin H. Mogul· hearing

Summary

A security clearance was denied to an applicant who is a dual citizen of the United States and Iran, based on concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed from the applicant's close family ties in Iran and his retention of an Iranian passport.

The applicant's parents and five of his eight siblings are citizens and residents of Iran, with whom he maintains regular contact, including weekly calls due to his mother's illness. His father owns property and a business in Iran, which the applicant may inherit. The applicant also possesses a current Iranian passport, renewed in 2003 and valid until 2006. He used this passport for visits to Iran in 1997, 2000, and 2003, all occurring after he became a U.S. citizen. He stated his intention to continue maintaining and using his Iranian passport for future travel to Iran, believing he cannot travel there with a U.S. passport. He has not attempted to renounce his Iranian citizenship.

The denial was based on the applicant's maintenance of a current Iranian passport, his immediate family members residing in Iran, and the potential for foreign influence or coercion due to these close ties.

Why the Applicant Was Denied

The applicant maintained a current Iranian passport instead of relinquishing it as required.
The applicant has immediate family members who are citizens and residents of Iran, creating a potential for foreign influence.
The applicant's close ties to his family in Iran make him vulnerable to coercion or pressure.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedForeign Influence - Close Family Members Are Not U.S. Citizens or May Be Subject to Duress.
E2.A3.1.2.1raisedForeign Preference - Actions Indicating Preference for a Foreign Country Over the U.S.
E2.A3.1.2.2raisedForeign Preference - Failure to Relinquish a Foreign Passport.

Key Rule Quoted

“"the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
— Department of Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedMar 10, 2005
Answer filedApr 10, 2005Notarized response by applicant.
Hearing heldAug 29, 2005
Decision dateDec 9, 2005

Cite For

Foreign Influence Due to Familial Ties Under Guideline B
Foreign Preference Due to Retention of a Foreign Passport Under Guideline C
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 that the applicant, a dual citizen of the United States and Iran, has immediate family members who are citizens and residents of Iran, which poses a significant foreign influence risk. The applicant's ties to Iran, including close contact with his parents and siblings, were deemed to create vulnerability to coercion or pressure. The judge ruled against the applicant on three of the six allegations under Guideline B, ultimately denying the security clearance.

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	Applicant's mother and father are citizens and residents of Iran. He is close to them and usually speaks to them by telephone once a month. However, during the last few months, because his mother is ill, he calls them on a weekly basis.	Against Applicant	Parent in Foreign Country Immediate Family	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	Applicant has eight siblings, including half-sisters, five of whom are citizens and residents of Iran. Two of his brothers and one sister live in the United States, but they, like Applicant, are dual citizens of Iran and the United States.	Against Applicant	Sibling in Foreign Country Immediate Family	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.c	Applicant's father owns a business and some property in Iran, which Applicant may be in line to inherit with his siblings, although the status of this property is not clear at this point.	Against Applicant	Foreign Real Estate Financial or Property Interest	Iran HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.d–1.f	3 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant	Unspecified Foreign Relationship 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 C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant, a dual citizen of the United States and Iran, was found to have serious foreign preference concerns due to his retention and use of a current Iranian passport after becoming a U.S. citizen. The judge ruled against the applicant on both allegations under Guideline C, indicating a preference for Iran over the United States and a failure to renounce his Iranian citizenship.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
2.a	Applicant currently has an non-expired Iranian passport. His Iranian passport had expired in 2001, but he subsequently renewed it in 2003 and it is current until 2006. He has traveled to Iran to visit his family in the years 1997, 2000, and 2003, and he used his Iranian passport on all of these trips. Each of these trips was after he became a United States citizen. He testified that since he did not believe that he could travel to Iran with a United States passport, he will continue to maintain his Iranian passport, as he plans to travel to Iran and use his Iranian passport in the future (Tr at 41, 53-54).	Against Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country (b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
2.b	Applicant has never made an attempt to renounce his Iranian citizenship (Tr at 50-51).	Against Applicant	Failure to Renounce or Surrender Foreign Status	Denied	(a) applying for and/or acquiring citizenship in any other country (b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—

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: December 9, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-12932

DECISION OF ADMINISTRATIVE JUDGE

MARTIN H. MOGUL

FOR GOVERNMENT

Candace Le'i, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant, a dual citizen of the United States and Iran, has failed to fulfill the requirements of the Memorandum from the Assistant Secretary of Defense for Command, Control, Communications and Intelligence, dated August 16, 2000, (Money Memorandum) by maintaining a current Iranian passport rather than relinquishing it to the proper Iranian authorities. Applicant's immediate family members, including his mother and father, with whom he has close and continuing contact, and eight siblings or half-siblings, are citizens and residents of Iran. The evidence establishes that Applicant is vulnerable to foreign influence. Mitigation has not been shown. Clearance is denied.

STATEMENT OF CASE

On March 10, 2005, 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.

The SOR was based on Foreign Influence (Guideline B) concerns because of the foreign residency and citizenship of close family members and Foreign Preference (Guideline C) related to his exercise of dual citizenship with the United States and Iran by his retention and use of a foreign passport after he became a United States citizen.

Applicant, acting pro se, filed a notarized response dated April 10, 2005, to the allegations set forth in the SOR, and requested a hearing before a DOHA Administrative Judge.

On May 25, 2005, this case was assigned to this Administrative Judge to conduct a hearing and issue a written decision. A Notice of Hearing was issued to the parties on August 22, 2005, and the hearing was held on August 29, 2005. At the hearing, Department Counsel offered 10 documentary exhibits (Exhibits 1 through 10) and no witnesses were called. Applicant offered two documentary exhibits (Exhibits A and B) and offered his testimony. The transcript (Tr) was received on September 14, 2005.

FINDINGS OF FACT

The SOR contains six allegations, 1.a. through 1.f., under Guideline B and two allegations, 2.a., and 2.b., under Guideline C. Applicant admitted all of the SOR allegations, except 2.b. The admissions are incorporated herein as

Findings of Fact.

After a complete and thorough review of the evidence in the record, including Applicant's Answer to the SOR, the documents and the live testimony, and upon due consideration of that evidence, I make the following additional findings of fact:

Applicant is a 50 year old employee of a defense contractor, and he seeks a DoD security clearance in connection with his employment in the defense sector. He is married and has three children. He received BA, MA and Ph.D. degrees in mathematics from United States universities.

Applicant was born in Iran in 1955 and immigrated to the United States in 1974. He became a naturalized United States citizen in 1989.

Paragraph 1 (Guideline B - Foreign Influence)

The Government alleges in this paragraph that Applicant is ineligible for clearance because he has immediate family members or people to whom he may be bound by affection or obligation who are not citizens of the United States, or may be subject to duress.

Applicant's mother and father are citizens and residents of Iran. He is close to them and usually speaks to them by telephone once a month. However, during the last few months, because his mother is ill, he calls them on a weekly basis.

Applicant has eight siblings, including half-sisters, five of whom are citizens and residents of Iran. Two of his brothers and one sister live in the United States, but they, like Applicant, are dual citizens of Iran and the United States. All of his siblings, who live in the United States, go back and forth to Iran (Tr at 54-57).

Applicant's father owns a business and some property in Iran, which Applicant may be in line to inherit with his siblings, although the status of this property is not clear at this point (Tr at 38- 40).

Paragraph 2 (Guideline C - Foreign Preference)

The Government alleges in this paragraph that Applicant is ineligible for clearance because he has acted in such a way as to indicate a preference for another country over the United States.

Applicant currently has an non-expired Iranian passport. His Iranian passport had expired in 2001, but he subsequently renewed it in 2003 and it is current until 2006. He has traveled to Iran to visit his family in the years 1997, 2000, and 2003, and he used his Iranian passport on all of these trips. Each of these trips was after he became a United States citizen. He testified that since he did not believe that he could travel to Iran with a United States passport, he will continue to maintain his Iranian passport, as he plans to travel to Iran and use his Iranian passport in the future (Tr at 41, 53-54).

Applicant testified that he does not consider himself a citizen of Iran, but he conceded that he retained and used his Iranian passport because Iran considered him an Iranian citizen. He has never made an attempt to renounce his Iranian citizenship (Tr at 50-51).

POLICIES

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, favorable and unfavorable, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required.

Each adjudicative decision must also include an assessment of the nature, extent, and seriousness of the conduct and surrounding circumstances; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the motivation of the individual applicant and extent to which the conduct was negligent, willful, voluntary or undertaken with knowledge of the consequences involved; the absence or presence of rehabilitation and other pertinent behavioral changes; the potential for coercion, exploitation and duress; and the probability that the circumstances or conduct will continue or recur in the future. See Directive 5220.6, Section 6.3 and Enclosure 2, Section E2.2.

Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or emotionally unstable behavior. See Directive 5220.6, Enclosure 2, Section E2.2.4.

Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make critical judgments as to the credibility of witnesses. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

Burden of Proof

Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets its burden and establishes conduct cognizable as a security concern under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of criterion conduct, it is clearly consistent with the national interest to grant or continue his security clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security. See Enclosure 2 to the Directive, Section E2.2.2.

CONCLUSION

Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of those who testified, I conclude the following with respect to Guidelines B and C:

(Guideline B - Foreign Influence)

Under Guideline B, a security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he is bound by affection, influence or obligation, are not citizens of the United States or may be subject to duress. Based on the evidence of record, the Government has established a reason to deny Applicant a security clearance because of Foreign Influence concerns. As Applicant's mother and father, with whom he has a close personal relationship, and many siblings and half-siblings are citizens of Iran, a country which is undisputedly hostile to the Government of the United States, Applicant has a very heavy burden of showing that this family members do not pose a security risk. ISCR Case No. 01-26893 (October 16, 2002). Applicant has not met this substantial burden.

Based on the current status of Iran, the close ties that Applicant has, primarily with his parents, the existence of immediate family members, who are citizens and residents of Iran, creates the potential for foreign influence that could result in the compromise of classified information, because it makes Applicant potentially vulnerable to coercion, exploitation, or pressure. It comes within Disqualifying Condition (DC) E2.A2.1.2.1. I conclude that the potential to inherit an interest in property in Iran is so tenuous that DC E2.A2.1.2.8. does not apply. No Mitigating Condition (MC) applies under Guideline B.

After considering all of the evidence of record on the issue of Foreign Influence, I conclude that the evidence supporting the SOR substantially outweighs any mitigating evidence.

(Guideline C - Foreign Preference)

Guideline C is based on actions taken by an individual that indicate a preference for a foreign country over the United States. Applicant's failure to relinquish his current Iranian passport to the proper Iranian authorities and his stated intention to continue to maintain the passport and use it in the future raises serious Foreign Preference (Guideline C) concerns. It is a violation of the Money emorandum, and therefore Applicant is absolutely barred from retaining a security clearance. Applicant's unwillingness to renounce his Iranian citizenship so that he can maintain his Iranian passport, must also be considered adversely to Applicant.

DC E2.A3.1.2.1. applies because Applicant's renewal and use of his Iranian passport after he became a United States citizen is a continuing example of Applicant's exercising dual citizenship. DC E2.A3.1.2.2. also applies because of Applicant's failure to return his passport to the proper authorities. No MC applies in this case under Guideline C.

FORMAL FINDINGS

Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:

Paragraph 1. Guideline B: AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: Against the Applicant

Subparagraph 1.c.: Against the Applicant

Subparagraph 1.d.: For the Applicant

Subparagraph 1.e.: For the Applicant

Subparagraph 1.f.: For the Applicant

Paragraph 2. Guideline C: AGAINST THE APPLICANT

Subparagraph 2. a.: Against the Applicant

Subparagraph 2.b.: Against the 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 a security clearance for Applicant. Martin H. Mogul

Administrative Judge

FOOTNOTES

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