1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 07-06435 ) ) Applicant for Security Clearance ) Appearances For Government: Francisco J. Mendez, Esquire, Department Counsel For Applicant: Alexander M. Laughling, Esquire ______________ Decision ______________ RIVERA, Juan J., Administrative Judge: Applicant failed to mitigate the foreign influence security concerns arising from her relationship and contacts with Iranian citizens. Eligibility for access to classified information is denied. Statement of the Case Applicant submitted her Questionnaire for National Security Positions (SF 86) on September 4, 2007. On October 30, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the Government’s security concerns under Guideline B (Foreign Influence).1 1 The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. 2 Applicant answered the SOR (Answer) on November 16, 2007, and requested a hearing before an Administrative Judge. The case was assigned to me on December 19, 2007. DOHA issued a notice of hearing on December 24, 2007. The hearing was convened as scheduled on January 29, 2008. The government offered exhibits (GE) 1 through 3, which were admitted without objection (Tr. 20).2 Applicant testified on her own behalf, and presented the testimony of one witness and six exhibits, marked AE 1 through 6, which were received without objection. DOHA received the transcript of the hearing (Tr.) on February 6, 2008. Findings of Fact In her Answers to the SOR, Applicant admitted the SOR allegations with explanations. Her admissions are incorporated herein as findings of fact. After a thorough review of all evidence of record, I make the following additional findings of fact. Applicant is a 48-year-old business woman and entrepreneur. She was born, raised, and educated in Iran (Tr. 26). She received a bachelor’s degree in applied mathematics and a master’s degree in abstract mathematics in 1994 from an Iranian university (Tr. 120). Applicant had started another master’s degree in operations research, but was expelled in 1992 from the university before she completed her degree because she did not cover her face and hair as required by Islamic law (Tr. 25). While attending her master’s classes, Applicant also taught at the university. While studying in Iran, Applicant taught high school and college classes. After she completed her education, Applicant worked for an Iranian company managing and coordinating the construction of a mid-size airport (Tr. 28). She claimed the company was privately owned. Applicant married her Iranian-born spouse in 1988 in Iran (GE 1). He was a professor at the same Iranian university she attended. He attended college in the United States and had real estate investments in the United States (Tr. 121-122). In 1989, Applicant travelled to the United States for the first time with her then husband (Tr. 41). From 1989 to 1994, Applicant and her spouse lived in the United States during approximately six months each year, and travelled back to Iran and lived there for the remainder of the year (Tr. 121). She has an 18-year-old son born in Iran of this marriage (Tr. 23-24). He is soon to be sworn in as a U.S. naturalized citizen, and currently attends a U.S. university on a scholarship (Tr. 45). According to Applicant, her son has no Iranian friends, and is not a practicing Moslem. He does not have an Iranian passport and has never traveled to Iran. In 1994, Applicant emigrated to the United States with her husband and child. She divorced her spouse in 2000 in the United States (Tr. 76). Since their divorce, Applicant has little or no contact with her ex-spouse. Applicant became a U.S. naturalized citizen in 1997. She described her naturalization as an emotional event (Tr. 2 GE 3 was marked for identification and considered for administrative notice only. 3 42-44). She feels she belongs in the American society, and has had great support from her American friends. She claimed her social network of friends is composed primarily of U.S. citizens. She has limited contact with the Iranian community in the United States. Applicant believes in God, but testified she is not a religious person, and is not a practicing Moslem. She testified she has no property or any financial interests in Iran. Applicant has not travelled to Iran since 1994, and she stated her intent never to return to Iran (Tr. 51). In 2004, Applicant founded her own company in the United States and requires access to classified information to participate in promoting her company’s business and to qualify for contracts with the federal government (Tr. 26). She started working full time for her company in 2006. Applicant’s company has a facility’s top secret clearance (Tr. 108). Applicant had interim access to classified information for approximately seven months prior to her hearing (Tr. 26-28). Applicant’s company is a sub-contractor in several important contracts with U.S. government agencies. Applicant’s parent’s were born, raised and educated in Iran. They are Iranian citizens, and they live with Applicant when they are present in the United States (Tr. 46- 49). Her father is 72 years old. He was an engineer for an Iranian oil company. In that position, he supervised/managed approximately 100 employees (Tr 125, 133). He retired from his employment after 30 years of service. Initially, Applicant claimed not to know whether her father was receiving a pension from the government of Iran (Tr. 100- 101). Later she changed her testimony and clarified she believes her father receives a pension from the Iranian government (Tr. 116). Her mother completed high school, but was a homemaker for most of her life. Her parents would like to become U.S. citizens but are working to improve their English language ability (Answer). At the time of her hearing, Applicant’s parents were living in Iran. They left for Iran sometime prior to her hearing, and she believes they will spend approximately six months visiting their relatives in Iran (Tr. 105). Since 1999, her parents have been travelling back and forth each year between Iran and the United States. They spend close to half of each year living with Applicant in the United States. The remainder of the year they spend with their other children living in Iran (Tr. 97).3 While in the United States, Applicant’s parents have telephone contact with their relatives in Iran at least once every two weeks (Tr. 99). Applicant’s parents and her two sisters living in Iran jointly own an apartment building in Iran. She is not aware of the percentage of ownership between them (Tr. 49- 50). Her parents’ home was demolished so that her sisters and her husbands could build a new apartment building to live in. Her parents keep ownership of the land. Her parents have an apartment in the new apartment building. 3 Applicant initially testified her parents were living permanently with her, and that they travelled to Iran every year, and stayed there visiting their relatives for a period of one to three months (Tr. 97). She later clarified that her parents stay in Iran for a period of four to six months every year (Tr. 126). 4 Applicant has a 38-year-old sister living in the United States. She emigrated to the United States in 1999, and would like to become a U.S. naturalized citizen. She received an engineering degree in agriculture from an Iranian university. However, she is a homemaker. Applicant’s sister’s husband was born in Iran. Applicant believes he became a U.S. naturalized citizen in 2007 (Tr. 127). Applicant’s sister has traveled to Iran approximately every other year since 1999, and stays in Iran for approximately one month during her visits (Tr. 54, 104). The last time she visited Iran was in 2006 (Tr. 105). She has no financial interests or property in Iran. She provides charitable contributions to an orphanage in Iran (Tr. 56). According to Applicant, her sister has no intention to go back to live in Iran (Tr. 56). Applicant has three siblings living in Iran who are citizens and residents of Iran. Her two sisters were rejected from medical school because they attended a combined gender school in violation of Islamic law (Tr. 64). They both graduated from mid-wife school (Tr. 57). Both sisters are married to practicing physicians and have never been to the United States. They live in an apartment building owned by them and their parents. Applicant does not know the frequency of her telephonic contact with her sisters (Tr. 68). She has unscheduled telephonic contact with her sisters – sometimes they talk once a week, sometimes once a month. Applicant never corresponds with her sisters via e-mail or written correspondence because she is concerned about the Iranian government monitoring their communications (Tr. 60). Both of her sisters would like to emigrate to the United States (Tr. 64). They also contribute financially to the same Iranian orphanage her sister in the United States sponsors (Tr. 63). Applicant’s brother is 41 years old, and married. He is an architect by profession and owns his own private consulting firm. Applicant believes he does not have any ties to the Iranian government (Answer). He served in the Iranian Army for approximately one and one-half year (Tr. 130). She has contact with her brother approximately once a year during the New Year holidays (Tr. 72). Applicant claimed that none of her relatives in Iran, including her parents and siblings, have ever asked her about her work, and that they have no knowledge of what she does for a living (Tr. 50). Only her sister living in the United States is aware Applicant is applying for access to classified information (GE 2). She testified that none of her relatives in Iran have any current political difficulties with the Iranian government. Her relatives do not work for or have any business relationship with the Iranian government, and they are not involved in any social or political organization. She claimed her siblings are hostile to the current Iranian government. All of her relatives have philosophical objections to the current Iranian government. Applicant considers herself a loyal American. She believes the United States has the best constitution in the world, and that the United States should act as the “father of the world” (Tr. 89). She promised to report any inquiries about her work and/or any possible threat against the United States from any foreigners, U.S. citizens, or from her family members (Tr. 90-94). She also promised to protect classified information even it her doing so would be the downfall of her business or her family (Tr. 93). She also 5 promised to promote the interest of the United States (Tr. 90), and to do anything she could to overcome the Iranian government (Tr. 94). Applicant claimed she would not go back to Iran for any reason, including a sick family member or the death of a family member (Tr. 91). In her answer to the SOR, she stated that “[she] simply do not attach any overriding significance to relationships based solely on blood of family ties.” She believes she would place herself at risk if she were to go back to Iran because of her protests against the Iranian government while she was attending college (Tr. 92). She participated in two protests against the Iranian government when it intended to close schools for four years, and to force women to cover their hair and faces (Tr. 95-96). In 1992, she was expelled for one year from the university (GE 2). In January 2007, Applicant was interviewed by a government background investigator. During the interview she disclosed trips in 2006 to Dubai (twice) and India where she met with foreign nationals trying to develop her company’s business. During these trips, she met with numerous foreign nationals with whom she maintains infrequent telephone contact. Applicant was not sure whether she had properly reported her contacts with foreign nationals (GE 2). One of her sisters traveled from Iran to Dubai to meet with Applicant during one of her trips. Applicant received solid recommendations from her colleagues in business, friends, and past supervisors (AE 1c-e). She is considered to be a hard-working, ethical, and dedicated employee. In general, she is perceived as being highly professional and honest. She is trustworthy, dependable, and committed to principles of freedom and democracy. Her references recommended her for a security clearance. I take administrative notice of the following facts. Iran is a “theocratic Islamic republic in which Shi’a Muslim clergy dominate the key power structures.” Iran engages in clandestine efforts to acquire nuclear weapons and other weapons of mass destruction (WMD) in defiance of the International community, sponsors international terrorism, intervenes in the internal affairs of Iraq, is arming terrorists in Iraq, undermines the Middle East peace process, and violates the human rights of the Iranian people. The United States and its allies are attempting to block Iran’s goals of obtaining nuclear weapons and other WMD and to counter Iran’s efforts to destabilize Iraq and other the Middle East countries. Iran is one of the most active state sponsors of terrorism. The United States is concerned about the possibility that terrorists could eventually obtain WMD from Iran. Iran supports terrorists who attack Israel and Shiite militias who pursue sectarian violence in Iraq. Iranian born, naturalized U.S. citizens, should carefully consider the risks of travel in Iran because they are still considered Iranian citizens by Iranian authorities. Iran does not recognize dual citizenship. The Iranian government has harassed and detained dual citizens of the United States and Iran. 6 Policies The purpose of a security clearance decision is to resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s eligibility for access to classified information.4 When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an Applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The Administrative Judge’s controlling adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole person concept.” The Administrative Judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”5 In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the Applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally 4 See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). 5 Egan, supra, at 528, 531. 7 permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline B, Foreign Influence Under Guideline B, the government’s concern is that: Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, he or she may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. AG ¶ 6. AG ¶ 7 sets out three conditions that could raise a security concern and may be disqualifying in this case, including: (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information; and, (d) 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. The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in 8 a foreign country and an applicant has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information.6 Applicant has frequent contacts and a close relationship of affection and/or obligation with her parents and siblings. Her parents and siblings are citizens and residents of Iran (except one of her sisters who is a U.S. resident). Her parents live with Applicant when they live in the United States. The closeness of the relationship is shown by Applicant’s frequent telephone contacts with her siblings. These contacts create a risk of foreign pressure or attempted exploitation because there is always the possibility that Iranian agents or terrorists may exploit the opportunity to obtain information about the United States. Her connection to her family members also creates a potential conflict of interest because her relationships are sufficiently close to raise a security concern about her desire to help them by providing sensitive or classified information. These close relationships create a heightened risk of foreign pressure or attempted exploitation because Iran and the United States’ relationship is far from friendly. Her connections to her Iranian family also create a potential conflict of interest because her relationships are sufficiently close to raise a security concern about her desire to help her family by providing sensitive information. Applicant’s relationship with her parents creates a “heightened risk of foreign inducement, manipulation, pressure or coercion” because they return to Iran every year for an extended period and could be subjected to Iranian pressure. The government produced substantial evidence raising these three potentially disqualifying conditions, and the burden shifted to Applicant to produce evidence and prove a mitigating condition. The burden of disproving a mitigating condition never shifts to the government. Three Foreign Influence Mitigating Conditions under AG ¶ 8 are potentially applicable to these disqualifying conditions: (a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and 6 See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). 9 (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation. After considering the totality of the facts and circumstances in Applicant’s case, I conclude that only mitigating condition AG ¶ 8(b) partially applies. Applicant has not traveled to Iran since 1994, and she became a U.S. naturalized citizen in 1997. She has contacts and close relationships with her parents and sister living in the United States who are citizens of Iran. Applicant also has contacts and close relationship with her siblings who are residents and citizens of Iran. Her sister living in the United States travels every other year to Iran and stays there with her relatives for approximately one month. Her parents have lived with Applicant since 1999, and they have traveled to Iran every year since 1999. They lived approximately half of each year in Iran and the other half of the year in the United States. They travel to Iran to visit their children and relatives living in Iran. Guideline ¶ 8(a) and 8(c) do not apply. Appellant did not establish “it is unlikely [she] will be placed in a position of having to choose between the interests of [her Iranian family] and the interests of the U.S.” Her frequent contacts and close relationships with her Iranian family members could potentially force her to choose between the United States and Iran. She did not meet her burden of showing there is “little likelihood that [her relationships with her Iranian family members] could create a risk for foreign influence or exploitation.” The nature of Iran’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that Applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, or the country is known to conduct intelligence operations against the United States. The hostility of Iran to the United States places a “very heavy burden of persuasion” on Applicant to demonstrate that her immediate family members in Iran (visiting or living in Iran) do not pose a security risk and she will not be placed into a position to be forced to choose between loyalty to the United States and her Iranian family members.7 With its adversarial stance and its negative human rights record, it is likely that Iran would target any citizen in an attempt to gather classified or sensitive information from the United States. Applicant testified she was expelled twice from an Iranian university for protesting actions by the Iranian government, and that her sisters were barred from medical school 7 See ISCR Case No. 02-13595 at 3 (App. Bd. May 10, 2005) (stating an applicant has “a very heavy burden of persuasion to overcome the security concerns” when parents and siblings live in Iran). See also ISCR Case No. 04-11463 at 4 (App. Bd. Aug. 4, 2006) (articulating “very heavy burden” standard when an applicant has family members living in Iran). 10 because they attended mixed gender schools. To a certain extent, her family members living in Iran, and her parents, have challenged the policies of the Iranian government. Thus, it is more likely the Iranian government is monitoring her parents’ and sister’s trips to Iran, as well as all their communications. On the other hand, there is no evidence that any of her relatives work for the Iranian government or military or any news media. There is no evidence that the Iranian government has approached any of her Iranian family for any reason, and in particular, has not approached them recently about Applicant. There is no evidence that her family living in Iran currently engages in activities which would bring attention to themselves or that they are even aware of her work. Notwithstanding, Foreign Influence mitigating conditions cannot be applied in this case, and the security concerns cannot be fully mitigated because there is no reason for Iran to contact her relatives about Applicant until she receives access to classified information. Even taking for granted that her family members currently have low-key non-controversial lifestyles, and that the Iranian government has not contacted them about Applicant in the past, such factors are insufficient to mitigate the security concerns because of the nature of the Iranian government and its relationship to the United States. AG ¶ 8(b) applies because Applicant has developed a sufficient relationship and loyalty to the United States, that she can be expected to resolve any conflict of interest in favor of the United States’ interests. She has lived in the United States for approximately 14 years. She is a naturalized U.S. citizen and all of her financial and business interests are in the United States. Applicant has established herself as an American citizen and a successful business woman (Tr. 149). She has worked hard for numerous employers in the United States, and she continues this track record of diligent labor in the development of her company. Although this mitigating condition is applicable, it is insufficient to overcome the foreign influence security concerns. Whole Person Concept Under the whole person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. 11 Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept. Applicant strongly averred her loyalty to the United States, that she feels like an American, her desire to help the United States against any possible enemies, and her desire to help the United States to overcome the current Iranian government. Applicant has lived in the United States for 14 years and has been a naturalized citizen for 11 years. When she became a U.S. citizen, she swore allegiance to the United States. Her son is also a U.S. citizen, and her parents and one of her sisters are U.S. residents. Notwithstanding, her parents travelled to Iran and have lived in Iran for approximately six months of every year since 1999. Her sister travels to Iran every other year and stays in Iran for approximately one month. Applicant has strong ties of affection and or obligation to her parents and siblings, including those in Iran. Because her family members travel to Iran and live in Iran for long periods of time, they are vulnerable to coercion or exploitation by a foreign power. Applicant’s statement about her loyalty to the United States is credible, and there is no reason to believe that she would take any action which could cause potential harm to her U.S. family or to this country. There is no evidence she has ever taken any action which could cause potential harm to the United States, or that he lacks honesty and integrity. She credibly stated that she takes his loyalty to the United States very seriously. She has the respect and trust of her business partners, her friends, and family. There is no evidence that she has revealed to her family in Iran the nature of her work or about applying for a security clearance. Numerous circumstances weigh against Applicant in the whole person analysis. Iran is seeking WMD and Iran’s government is currently in an adversarial position with respect to the United States. More importantly for security purposes, Iran seeks sensitive or protected U.S. information. Applicant had significant connections to Iran before she immigrated to the United States in 1994. She was born in Iran and educated in Iranian universities. Likely, the Iranian government is aware of her protests during her university days and monitors Applicant’s and her family communications. She has family members who are Iranian citizens living in Iran, and her parents and sister in the United States travel to and stay in Iran for long periods of time. Applicant has frequent and non- casual contact with her family members living in Iran. These contacts create a risk of foreign pressure or attempted exploitation because there is always the possibility that Iranian agents or terrorists may attempt to use Applicant’s family members living in Iran to obtain information about the United States. “Because of the extreme sensitivity of security matters, there is a strong presumption against granting a security clearance. Whenever any doubt is raised . . . it is deemed best to err on the side of the government’s compelling interest in security by denying or revoking [a] clearance.” Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 12 1990). After weighing the disqualifying and mitigating conditions, all the facts and circumstances, in the context of the whole person, I conclude she has not mitigated the security concerns pertaining to foreign preference. The evidence leaves me with doubts as to Applicant’s security eligibility and suitability. For all these reasons, I conclude Applicant has failed to mitigate the concerns arising from her foreign influence security concerns. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline B: AGAINST APPLICANT Subparagraphs 1.a-1.c: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant’s security clearance. Eligibility for access to classified information is denied. _________________ JUAN J. RIVERA Administrative Judge