PSH-15-0058

*The original of this document contains information which is subject to withholding from
disclosure under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced
with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: July 9, 2015 )
_________________________________________ ) Case No.: PSH-15-0058
Issued: September 29, 2015
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, Subpart A, entitled, “Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.”1 For the reasons set forth below, after carefully
considering the record before me in light of the relevant regulations and the Adjudicative
Guidelines, I conclude that the Individual’s request for a security clearance should be granted.2
I. BACKGROUND
During an initial background investigation of the Individual, a Local Security Office (LSO)
obtained information that raised security concerns. In order to address those concerns, the LSO
conducted a Personnel Security Interview (PSI) of the Individual on March 26, 2015. Because the
PSI did not resolve these concerns, the LSO began the present administrative review proceeding
by issuing a Notification Letter to the Individual informing her that she was entitled to a hearing
before an Administrative Judge in order to resolve the substantial doubt regarding her eligibility
for a security clearance. See 10 C.F.R. § 710.21. The Individual requested a hearing and the LSO
forwarded her request to the Office of Hearings and Appeals (OHA). The Director of OHA
appointed me as the Administrative Judge in this matter.
1
An access authorization is an administrative determination that an individual is eligible for access to classified
matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will also be referred to in this Decision as
a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/OHA.
2
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, her supervisor, her sister, and three of her co-workers. See Transcript of Hearing, Case
No. PSH-15-0058 (hereinafter cited as “Tr.”). The LSO submitted four exhibits, marked as
Exhibits 1 through 4. The Individual submitted two exhibits, which appear in the record as (LSO)
Exhibit 2, and Exhibits A and B.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning her eligibility for a security
clearance. That information pertains to paragraph (l)3 of the criteria for eligibility for access to
classified matter or special nuclear material set forth at 10 C.F.R. § 710.8 (Criterion L).
To justify its reliance on Criterion L, the LSO alleges that the Individual is married to an
undocumented immigrant. Exhibit 1 at 1. These circumstances, as alleged, adequately justify the
LSO’s invocation of Criterion L, and raise significant security concerns. “Conduct involving
questionable judgment . . . or unwillingness to comply with rules and regulations can raise
questions about an individual's reliability, trustworthiness and ability to protect classified
information.” Guideline E of the Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information issued on December 29, 2005, by the Assistant to the President
for National Security Affairs, The White House (Adjudicative Guidelines) at ¶ 15. The
Adjudicative Guidelines also state that association with persons involved in criminal activity could
raise a security concern and may be disqualifying. Adjudicative Guideline E at ¶ 16(g).
III. REGULATORY STANDARDS
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that “[t]he decision as to access authorization is a
comprehensive, common sense judgment, made after consideration of all the relevant information,
favorable and unfavorable, as to whether the granting of access authorization would not endanger
the common defense and security and would be clearly consistent with the national interest.” 10
C.F.R. § 710.7(a). In rendering this opinion, I have considered the following factors: the nature,
extent, and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's participation; the absence
or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation
for the conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of
3 Criterion L refers to information indicating that the Individual has “engaged in any unusual conduct or is subject to
any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes
reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the
individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are
not limited to, criminal behavior, a pattern of financial irresponsibility, conflicting allegiances, or violation of any
commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization
eligibility.” 10 C.F.R. § 710.8(l).
3
continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c),
710.27(a). The discussion below reflects my application of these factors to the testimony and
exhibits presented by both sides in this case.
The Revised Adjudicative Guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human nature, administrative judges apply the guidelines in conjunction with the
information available in the adjudicative process. The Administrative Judge’s overarching
adjudicative goal is to reach a fair, impartial, and commonsense decision.
IV. FINDINGS OF FACT
The Individual is an applicant for a security clearance. Her spouse of eight years is an
undocumented immigrant, as well as, the father of three of her children. Exhibit 4 at 9, 26. He
came, in 1991, from a country that is not on the Sensitive List, to the United States to escape
poverty. Exhibit 4 at 14. The Individual and her spouse have, over the past eight years, consulted
a number of attorneys in the hope of obtaining proper documentation. Exhibit 2; Exhibit 4 at 19.
The choice presented by those legal advisors was a difficult one: her spouse could either return to
his country of origin for ten years, and then apply for legal residence, or he could continue to reside
with his spouse and young children while awaiting expected changes in the law (that have not
materialized). Exhibit 4 at 9-10, 12. The Individual’s husband is currently working with an
attorney in hopes of obtaining legal residence. Exhibit 4 at 36, 48.
V. ANALYSIS
The Notification Letter states:
During a personnel security interview conducted on March 26, 2015, [the
Individual] admitted that she is aware that her husband is a citizen of [another
country] and has been residing in the U.S. illegally since 1991, which is a violation
of federal law. She further admitted that they have resided together since they were
married on November 17, 2006.
Exhibit 1 at 1. This is the sole basis provided in the Notification Letter for concluding that there
exists a substantial doubt about the Individual’s eligibility for a security clearance.
The Adjudicative Guidelines do not specifically include residing with, or being married to, an
undocumented immigrant as a condition that could raise a security concern and may be
disqualifying. Adjudicative Guideline B at ¶ 7(d) states that “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” could raise a security concern and may be
disqualifying. However there is no information in the record suggesting that the Individual’s
relationship with her spouse creates a heightened risk of foreign inducement, manipulation,
pressure, or coercion. To the contrary, the testimony provided by the Individual, her supervisor,
her sister, and three of her co-workers, at the hearing, indicates that the Individual is a
conscientious employee and a loyal American. Moreover, it is unlikely that the Individual will be
placed in a position of having to choose between the interests of her spouse’s government and the
4
interests of the U.S. See Adjudicative Guideline B at ¶ 8(a).4 The testimony of the Individual and
her sister indicates that her husband’s loyalties lie with the United States, rather than his country
or origin. Nor does the record indicate that the Individual has acted in “such a way as to indicate a
preference for a foreign country over the United States, [or that she] she may be prone to provide
information or make decisions that are harmful to the interests of the United States.” See
Adjudicative Guideline C at ¶ 9.
There is no information in the record indicating that the Individual herself has engaged or
facilitated any criminal activity. Merely cohabitating with an undocumented immigrant does not
constitute criminal conduct. United States v. Costello, 666 F.3d 1040 (7th Cir. 2012); See also
United States v. Vargas, 733 F.3d 366 (2nd Cir. 2013) (harboring an undocumented immigrant
under 8 U.S.C. § 1324 (a)(1)(A)(iii), requires an intention to prevent the undocumented immigrant
from being detected by immigration officials or police). There is no information in the record
indicating that the Individual has done anything to interfere with the activities of immigration
officials or police.
Guideline E states that “association with persons involved in criminal activity” could raise a
security concern and may be disqualifying. Guideline E at ¶ 16(g). During her PSI, the Individual
was erroneously informed that her spouse’s residence without proper documentation in the United
States constituted criminal activity. Exhibit 4 at 42, 48. As a general rule, it is not a crime for an
undocumented immigrant to remain in the United States. Arizona v. United States, 132 S. Ct. 2492,
2505 (2012) (Arizona); United States v. Costello, 666 F.3d 1040, 1047 (7th Cir. 2012). “Removal
of undocumented immigrants is a civil, not criminal matter.” Arizona, 132 S. Ct. at 2499.
Accordingly, I find that the Individual has resolved the security concerns set forth in the
notification letter.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criterion L. However,
after considering all the evidence, both favorable and unfavorable, in a common sense manner, I
find that Individual has resolved all of the Criterion L security concerns. Accordingly, the
Individual has demonstrated that granting her request for a security clearance would not endanger
the common defense and would be clearly consistent with the national interest. Therefore, the
Individual should be granted a security clearance. The National Nuclear Security Administration
may seek review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R.
§ 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: September 29, 2015
4 The Individual has “promptly complied with existing agency requirements regarding the reporting of contacts,
requests, or threats from persons, groups, or organizations from a foreign country.” See Guideline B at ¶ 8(e).