PSH-15-0060

*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 21, 2015 ) Case No.: PSH-15-0060
)
____________________________________)
Issued: October 13, 2015
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Administrative Judge Decision
______________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (“the Individual”) to hold an
access authorization1 under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, Subpart A, entitled, “General Criteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.” As discussed below, after carefully
considering the record before me in light of the relevant regulations and the Adjudicative
Guidelines, I have determined that the DOE should grant the Individual access authorization.
I. Background
The Individual is an employee of a DOE contractor in a position that requires that he hold a DOE
security clearance. 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 summoned the Individual for an interview with a personnel security specialist
in April 2015. Because the Personnel Security Interview (PSI) did not resolve these concerns, the
LSO began the present administrative review proceeding by issuing a Notification Letter to the
Individual informing him that he was entitled to a hearing before an Administrative Judge in order
to resolve the substantial doubt regarding his eligibility for a security clearance. See 10 C.F.R.
710.21.
1 Access authorization, also known as a security clearance, is an administrative determination that an Individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
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On July 13, 2015, the Individual exercised his right under the Part 710 regulations to request an
administrative hearing. The LSO forwarded this request to the Office of Hearings and Appeals
(OHA), and the OHA Director appointed me the Administrative Judge. At the hearing I convened
pursuant to 10 C.F.R. 710.25 (e) and (g), the DOE introduced five exhibits (DOE Exs. 1-5) into
the record. The Individual presented the testimony of three witnesses, including his own
testimony, and three exhibits (Ind. Exs. A-C). See Transcript of Hearing, Case No. PSH-15-0060
(Tr.).
II. Regulatory Standard
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that in these proceedings, an Administrative Judge must undertake a careful review of all
of the relevant facts and circumstances, and make a “common-sense judgment…after
consideration of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all
information, favorable or unfavorable, that has a bearing on the question of whether granting or
restoring a security clearance would compromise national security concerns. Specifically, the
regulations compel me to consider the nature, extent, and seriousness of the Individual’s conduct;
the circumstances surrounding the conduct; the frequency and recency of the conduct; the age and
maturity of the Individual at the time of the conduct; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence
of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording [the
Individual] an opportunity of supporting his eligibility for access authorization.” 10 C.F.R.
§ 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security
concerns, the burden is on the Individual to produce evidence sufficient to convince the DOE that
granting or restoring access authorization “will not endanger the common defense and security and
will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The regulations further
instruct me to resolve any doubts concerning the Individual’s eligibility for access authorization
in favor of the national security. 10 C.F.R. § 710.7(a).
III. Notification Letter and Associated Security Concerns
The Notification Letter cited derogatory information within the purview of one potentially
disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsection (l)
(hereinafter referred to as Criterion L).2 DOE Ex. 1. In support of its Notification Letter, the
LSO cited the following: 1) the Individual admitted that in March 2010 he became aware that his
spouse is an undocumented immigrant; 2) in 2013 or 2014, the U.S. Forest Service (USFS) issued
2 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).
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a citation to the Individual for illegally cutting down a ponderosa pine tree; 3) in October 2013,
the USFS issued the Individual a citation for Open Container of Alcoholic Beverage in a Motor
Vehicle; 4) in May 2011, the USFS issued the Individual a citation for removing timber in violation
of the law without a valid permit after he failed to complete his permit properly; and 5) in July
2010, the USFS issued the Individual a citation for simple possession of marijuana. DOE Ex. 1.
The Individual does not dispute any of these claims. I find that each of these allegations is valid
and well supported by the record in this case. See 10 C.F.R. § 710.27(c) (requiring Administrative
Judge to “make specific findings based upon the record as to the validity of each of the allegations
contained in the notification letter”). I further find that this information regarding the Individual’s
undocumented spouse adequately justifies the DOE’s invocation of Criterion L, as it raises
significant security concerns related to whether the Individual follows rules and regulations. See
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information,
The White House (December 19, 2005), Guideline E. The several citations received by the
Individual also justified the DOE’s invocation of Criterion L, as they raise significant security
concerns related to the Individual’s criminal activity thereby raising a doubt about his judgment,
reliability, and trustworthiness. Adjudicative Guidelines, Guideline J.
IV. Findings of Fact
The facts of this case are essentially undisputed. The Individual is an applicant for a security
clearance. His spouse of two years is an undocumented immigrant and the mother of one of his
sons. Tr. at 24. She came to the United States in 2001 from a country that is not on the Sensitive
List. DOE Ex. 5 at 16. The Individual and his wife first consulted with an attorney in 2013 about
obtaining proper documentation. Tr. at 38. They actually began the process in 2014. Ind. Ex. C.
They are presently on step four in the process, awaiting a response from the National Visa Center
confirming that the application can move forward. Ind. Ex. C.
As criminal conduct, the Individual was charged with 1) illegally cutting down a ponderosa pine
tree; 2) open container of alcoholic beverage in a motor vehicle; 3) removing timber, tree, or other
forest product in violation of the law without a valid permit; and 4) simple possession of marijuana
after a marijuana joint was found in his vehicle. DOE Ex. 1. These charges are discussed below,
seriatim.
Regarding the first charge, the Individual testified that he and the USFS Officer disagreed about
the type of wood that he had taken from the forest. The USFS Officer believed that some of the
wood was ponderosa pine, which could not be legally removed. Tr. at 43, 48. The Individual
testified, and provided pictures of the product, that it was actually red pine. Tr. at 42-48. The
Individual continued that because the USFS Officer confiscated his chain saws, worth
approximately $2,000, it was easier and more cost effective for the Individual to pay the $250
citation and have his saws returned. Tr. at 47. Therefore, the Individual paid the citation. Tr. at
47-48.
The Individual admitted that he was guilty of number two, the open container violation, and
number three, removing timber without a valid permit. Tr. at 49-52. As to number two, he
explained that after a long hike hunting for deer, when he returned to his car, he opened a bottle of
wine and took a drink. Tr. at 49-50. When he attempted to return it to the cooler, his father
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suggested they were only driving a mile down the road, so he placed it at his feet. Tr. at 51-52.
They were stopped by the USFS Officer, who noticed the bottle. Tr. at 52. The USFS Officer
charged the Individual with an open container in a motor vehicle. Tr. at 52. As to number three,
removing timber without a valid permit, the Individual explained that his pen had run out of ink
and he was unable to properly complete the permit. Tr. at 52. The logs were properly tagged, but
the permit was not properly completed. Tr. at 52. In regard to the marijuana charge, the Individual
and his brother-in-law testified that the marijuana joint belonged to the brother-in-law, not the
Individual. Tr. at 19-20. The brother-in-law also testified that he has never seen the Individual
smoke marijuana. Tr. at 20. The Individual’s brother-in-law testified that the USFS Officer saw
the marijuana in the car and that he was scared so he did not claim ownership.3 Tr. at 19.
Therefore, the USFS Officer cited the Individual, who owned the car. Tr. at 19.
V. Administrative Judge’s Analysis
A. The Individual’s Undocumented Spouse
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 his spouse creates a heightened risk of foreign inducement, manipulation,
pressure, or coercion. It is unlikely that the Individual will be placed in a position of having to
choose between the interests of his spouse’s government and the interests of the U.S. See
Adjudicative Guideline B at ¶ 8(a).4 The record does not 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 he] he
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 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.
The Individual and his wife own a home together and are purchasing another home together. Tr.
at 33.
3 In his response to the Notification Letter requesting a hearing, the Individual stated that his brother-in-law was only
16 or 17 at the time of the marijuana charges. DOE Ex. 2 at 2. Even during the hearing, the brother-in-law hesitated
before admitting that the marijuana was his until told that no charges would be brought against him. Tr. at 19-20.
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).
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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). As a general rule, however, 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 regarding his undocumented spouse.
B. Criminal Activity
The LSO properly raised the security concerns under Criterion L in regard to the Individual’s
criminal conduct. Guideline J of the Adjudicative Guidelines stated that “conditions that could
raise a security concern and may be disqualifying include: (a) a single serious crime or multiple
lesser offenses.” Adjudicative Guidelines, ¶ 31(a). However, the Guidelines continue that
conditions that could mitigate the concerns include: (a) so much time has elapsed or the behavior
happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on
the individual’s reliability, trustworthiness, or good judgment and (c) evidence that the person did
not commit the offense. Adjudicative Guidelines, ¶ 32(a), (c).
The Individual admitted guilt in two of the charges, the open container and improperly completing
the permit for the timber removal. I find that these behaviors happened under such unusual
circumstances that they are unlikely to recur. I found credible the Individual’s explanation
regarding the open container charge. In the future, it is likely that the Individual will return the
alcoholic beverage to the cooler prior to entering the motor vehicle. In addition, it is likely that he
will confirm that he a working pen when he goes to collect timber under a permit. I find that he
has resolved the concern raised by these two criminal charges under ¶ 32 (a) in that neither of the
behaviors underlying the concerns are likely to recur.
My analysis of the evidence presented at the hearing shows that the Individual did not commit the
offense of possession of the marijuana joint. The Individual and his brother-in-law both
persuasively testified that the joint belonged to the brother-in-law. Tr. at 19. The brother-in-law
further testified that he has never seen the Individual smoking marijuana. Tr. at 20. I find that he
has resolved the concern raised by this criminal charge under ¶ 32 (c), because there is evidence
that the Individual did not actually commit the offense.
The final charge raised by the LSO regards whether the timber he collected was ponderosa pine or
not. The Individual stated that he paid the fine, although he believes he was innocent, in order to
reacquire his chain saws, which were worth more than the fine for the alleged violation. Further,
he provided photos of the two different types of timber, including photos of the timber actually
involved in the situation. Finally, the Individual testified that he asked another USFS Officer if
the Officer who wrote the violation was still in the area and was told he was not. Tr. at 47. The
Individual’s testimony regarding the type of timber was compelling and earnest. I find that the
Individual has resolved this concern under ¶ 32 (a), in that it is unlikely to recur.
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I found the Individual to be credible in all his testimony. In reviewing all the exhibits in this
matter, along with the hearing testimony, the Individual’s account of what occurred during the
various incidents has not wavered. DOE Ex. 5; Tr. at 22-52. The Individual appears to be trying
to do the best he can for his family. He has taken responsibility for his actions. His supervisor
testified that she is able to trust him. Tr. at 10. He has not hidden any aspect of his wife’s status.
Tr. at 13. He tried to follow all rules and regulations. Tr. at 14. She trusts him to train other
employees in dangerous machinery. Tr. at 10.
Accordingly, I find that the Individual has resolved the security concerns set forth in the
Notification Letter regarding the four minor criminal charges.
Conclusion
For the reasons set forth above, I find that the Individual has resolved the security concerns under
Criterion L. After considering all the relevant information, favorable and unfavorable, in a
comprehensive common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I have found that the Individual has brought forth sufficient evidence to
resolve all of the security concerns at issue. I therefore find that granting the Individual access
authorization will not endanger the common defense and be consistent with the national interest.
Accordingly, I have determined that the Individual should be granted access authorization. The
parties may seek review of this Decision by an Appeal Panel under the regulations set forth at 10
C.F.R. §710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: October 13, 2015