PSH-16-0055

*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: June 15, 2016 )
_________________________________________ ) Case No.: PSH-16-0055
Issued: September 6, 2016
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXX XXXX XXXXXXXX (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 November 5, 2016. 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 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. The Individual requested a hearing and the LSO forwarded his
request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the
Administrative Judge in this matter.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from a personnel
security specialist (the PSS), the Individual, his spouse, and one of his friends. See Transcript of
Hearing, Case No. PSH-16-0055 (hereinafter cited as “Tr.”). The LSO submitted five exhibits,
marked as Exhibits 1 through 4, and Exhibit 8. The Individual submitted no exhibits.
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.
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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 his 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, and associates with members of her family, who are also undocumented
immigrants. Ex. 1 at 1. These circumstances, the LSO alleges, adequately justify the LSO’s
invocation of Criterion L, and raise significant security concerns. “Conduct involving questionable
judgment 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 . . . 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.
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 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
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).
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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. His spouse of two years is an undocumented
immigrant, as well as the mother of his child. Ex. 8 at 9, 11, 27. She came to this country as a six-
month old infant, from a country that is not on the Sensitive List, to the United States, and has not left
the country since then. Ex. 8 at 7, 20. She considers herself an American. Tr. at 26, 32, 42. The
Individual and his spouse are committed to first obtaining legal residency and then citizenship for his
spouse. Ex. 8 at 13; Tr. at 28, 33-35, 49, 52-54. To this end, the Individual and his spouse have
consulted with attorneys in the hope of obtaining proper documentation. Ex. 8 at 13; Tr. at 33-35,
49. Those legal advisors advised them that while there is no guarantee that she will be able to obtain
legal residency, or citizenship, she is a good candidate because she has no criminal record, a high-
school diploma, is the parent and spouse of American citizens, and has lived here since her infancy.
Ex. 8 at 33-34; Tr. at 30, 33, 35-36. The Individual did testify, however, that this is a very expensive
and time-consuming process. Ex. 52-56.
V. ANALYSIS
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. The
question before me is whether the Individual’s relationship with his spouse creates a heightened risk
of foreign inducement, manipulation, pressure, or coercion.
At the hearing, I asked the PSS to articulate why the LSO considers the Individual’s marriage to an
undocumented immigrant a security concern. The PSS explained that, in the LSO’s opinion, the
security risks associated with being married to an undocumented immigrant are twofold: (1) the
Individual’s spouse’s undocumented status makes the Individual vulnerable to coercion and
exploitation, since a hostile intelligence or terrorist operative could threaten to report her status to the
Immigration and Naturalization Service (INS), and (2) the Individual has exhibited poor judgment by
allowing himself to be placed in a position where he could be vulnerable to a hostile intelligence or
terrorist operative’s threats. Tr. at 10, 13-14, 20.
While it is within the realm of possibility that a hostile intelligence agent or terrorist might threaten
the Individual with reporting his wife’s status to the INS, in order to induce the Individual to engage
or assist in espionage or sabotage,4 the testimony in this case indicates that such a threat would likely
be ineffective. The Individual and his spouse have testified that his spouse intends to apply for a
travel permit, a green card, and eventually for citizenship. These applications will require the
Individual’s spouse’s undocumented status to be disclosed to the INS, which will extinguish any
4 Moreover, this scenario appears no more likely that a scenario in which a hostile intelligence agent would threaten an
individual’s family member with physical harm.
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possibility that a hostile intelligence agent or terrorist might threaten the Individual with reporting his
wife’s status to the INS in order to induce the Individual to engage or assist in espionage or sabotage.
Moreover, the testimony in this case resolves any concern that the Individual exhibited “poor
judgement” by marrying an undocumented immigrant, as the PSS opined. In his testimony, the PSS
opined that the Individual exhibited “poor judgment by knowingly allowing himself to be in a
situation where he could be exploited.” Tr. at 15. The record, however, shows that the Individual
married his spouse two years before he applied for work at a DOE facility. More importantly, the
Individual’s spouse’s undocumented status does not create a substantial risk that he could be
exploited, as discussed above. The PSS further opined that the Individual’s showed poor judgment
by marrying his spouse because her “status is unlawful.” 5 Tr. at 15. However, according to the
Supreme Court of the United States, it is not a crime for an undocumented immigrant to reside 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). Moreover, the Individual’s spouse was brought to this
country as an infant, so it is clear that she did not commit any criminal acts to facilitate her entrance
into the United States.
For the reasons set forth above, 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 his 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 6, 2016
5 During the PSI, the PSS repeatedly informed the Individual that his spouse’s (and his spouse’s family’s) residence
without proper documentation in the United States constituted criminal activity, inaccurately characterized the
Individual’s spouse as a criminal, and repeatedly accused the Individual with associating with a criminal and disregarding
the law. Exhibit 8 at 46-50, 53.