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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-08770
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Alison O’Connell, Esquire, Department Counsel
For Applicant: Pro Se
______________
Decision
______________
MATCHINSKI, Elizabeth M., Administrative Judge:
Clearance is denied because of unmitigated foreign influence and personal
conduct concerns. Applicant has close ties to family members in Guatemala, and his
handling of his tax matters raises doubts for his judgment, reliability, and
trustworthiness.
Statement of the Case
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on December 28, 2005. On November 19, 2007 (reissued December 14, 2007),
the Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of
Reasons (SOR) detailing the security concerns under Guideline B, Guideline F,
Guideline J, and Guideline E. 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
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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.
 
Applicant submitted an initial response dated December 19, 2007. Before it was
received, DOHA reissued the SOR on December 14, 2007. Applicant filed an Answer
dated January 11, 2008, which was incomplete because he failed to indicate whether or
not he wanted a hearing. On January 31, 2008, Applicant annotated a copy of his
January 11 response and indicated he did not wish to have a hearing. On February 15,
2008, the government notified Applicant of its request for a hearing before an
administrative judge under ¶ E3.1.7 of the Directive. On March 19, 2008, Department
Counsel indicated the government was prepared to proceed. At the same time, she
requested administrative notice be taken of certain facts pertaining to the Republic of
Guatemala (Guatemala). The case was assigned to me on March 20, 2008. On April 18,
2008, I scheduled a hearing for May 8, 2008.
The parties appeared as scheduled. Five government exhibits (Ex. 1-5) were
admitted, including Applicant’s December 19, 2007, response to the SOR (Ex. 1).
Applicant was assisted in the presentation of his case by his spouse, and they both
testified on his behalf. Twelve Applicant exhibits (Ex. A-L) were also accepted into the
record. A transcript of the hearing was received by DOHA on May 19, 2008.
At Applicant’s request, the record was held open for him to document satisfaction
of his federal tax debt and/or release of the federal tax lien alleged in SOR ¶ 2.a. On
May 13, 2008, Applicant timely submitted four documents from the Internal Revenue
Service (IRS). The government had no objections, and the documents were admitted as
exhibits M, N, O, and P.
Procedural and Evidentiary Rulings
Request for Administrative Notice
On March 19, 2008, Department Counsel requested administrative notice be
taken of certain facts relating to Guatemala and its foreign relations, including with the
U.S. The request was based on publications from the U.S. State Department. The
government’s formal request and the attached documents were not admitted into
evidence but were included in the record. 
On March 31, 2008, I notified the parties of my intention to take administrative
notice of specific facts, subject to revision based on the evidence admitted at the
hearing and any valid objections. The parties were given until April 15, 2008, to file any
objections, and Applicant to also present alternative facts for notice. No responses were
received by the due date. At the hearing, Applicant had no objections to the proposed
facts. I agreed to take administrative notice of particular facts pertaining to Guatemala,
as set forth below.
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Findings of Fact
DOHA alleged under Guideline B, foreign influence, that Applicant’s spouse
(SOR ¶ 1.a) and parents-in-law (SOR ¶¶ 1.d, 1.e) are Guatemalan citizens living legally
in the U.S.; that his father (SOR ¶ 1.b), his sister (SOR ¶ 1.c), and five uncles (SOR ¶
1.f) are resident citizens of Guatemala; that one uncle is a judge in Guatemala (SOR ¶
1.g); that he owns real property in Guatemala valued at approximately $25,000 USD
(SOR ¶ 1.h); and that he traveled to Guatemala at least eight times between October
2002 and May 2007 (SOR ¶ 1.l). DOHA alleged under Guideline F, financial
considerations, that despite $2,635 per month in discretionary income (SOR ¶ 2.b),
Applicant has not satisfied a $9,768.14 tax lien filed January 2001 for failure to pay
income taxes due in May and July 1999 (SOR ¶ 2.a). Under Guideline J, criminal
conduct, Applicant was alleged to have willfully failed to file federal (SOR ¶ 3.b) and
state (SOR ¶ 3.c) income tax returns for tax years 2004 and 2005, and to have not paid
the tax lien filed against him in January 2001 (SOR ¶ 3.a). Under Guideline E, personal
conduct, DOHA alleged Applicant falsified material facts on his e-QIP by not disclosing
the outstanding federal tax lien (SOR ¶ 4.a) and that he exercised poor judgment in not
filing his 2004 and 2005 tax returns and not paying his tax debt (SOR ¶ 4.b).
Applicant does not deny the Guatemalan citizenship and/or residency of his
family members, nor the employment of one uncle as a judge in Guatemala. He also
admits the trips taken to Guatemala to visit family members, primarily his sister, and his
ownership of real estate in Guatemala. Applicant also acknowledges that he did not
timely file his federal or state income tax returns for tax years 2004 and 2005, but
denies any outstanding tax debt or knowing of a tax lien for taxes due in 1999 when he
filed his e-QIP. After consideration of the evidence of record, I make the following
findings of fact.
Applicant is a 41-year-old janitor who has worked for his current employer since
December 2005 (Ex. 2, Tr. 50). He held an interim security clearance until April 2008
when it was withdrawn pending final adjudication of his clearance. As a result, he
cannot work later than 1900 hours (Tr. 4).
Applicant was born in Guatemala in March 1967. He and his sister, who is two
years younger (Ex. 2), were raised by their maternal grandparents after his mother
moved to the U.S. without them when he was five years old (Tr. 47, 110-11).  He
finished college in Guatemala in about 1987 and then taught in an elementary school
(Tr. 48).
Applicant came to the U.S. in March 1989 (Tr. 46). He studied English as a
second language at a college from about September 1989 to June 1990 (Ex. 2). It is not
clear what Applicant did for work in the U.S., if anything, until September 1995, when he
began cleaning for an oriental rug company. In April 1998, he began employment with a
landscape company (Ex. 2). In April 1999, he married his spouse, a Guatemalan citizen
residing in the U.S. She had been in the U.S. legally since March 1990 (Ex. 2, Tr. 49,
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112-13). They have one child, a son, who was born in the U.S. in September 1999 (Ex.
2).
In about March 1999, Applicant and his spouse bought their current residence,
located down the street from her parents (Ex. 2). It is a duplex and they rent out the
other half at $2,500 monthly (Tr. 80). Applicant started his own landscaping business
out of his home in March 2000 (Ex. 2). His spouse helped with the business (Tr. 112 ).
Applicant filed his federal income tax return for tax year 1997 in June 1999 (Ex.
N). While he filed his 1998 federal tax return on time, he paid only $500 on a tax
underpayment of $5,902. He made payments of $650 in 1999 and $200 in 2000, which
were applied to his 1998 tax debt (Ex. O). On January 23, 2001, the IRS filed a federal
tax lien in the amount of $9,768.14 against him for failure to pay balances of $5,351.81
for tax year 1997 (assessed July 26, 1999), and $4,416.33 for tax year 1998 (assessed
May 31, 1999) (Ex. M). By Applicant making regular payments and the IRS intercepting
his tax refunds for tax years 2000 and 2001, his federal tax debt was satisfied in 2002
(Ex. N, Ex. O).
In February 2002, Applicant became a naturalized U.S. citizen. He took an oath
to renounce all foreign allegiances, to support and defend the U.S. Constitution and its
laws, and to bear arms or perform noncombatant service or civilian service on behalf of
the U.S. if required. He was issued his U.S. passport on July 26, 2002. Also in 2002,
Applicant won $1 million in the state lottery, paid to him at $50,000 annually (Ex. D, Ex.
E, Tr. 68). In about 2005, Applicant and his spouse decided to build a home on a
quarter acre plot of undeveloped land in Guatemala that his grandfather had given him
in 1995 (Tr. 43, 67-68). It would give them a place to stay during visits and possibly in
retirement (Tr. 67-68). 
Due to increased competition, his landscape company experienced a net loss of
about $22,699 during tax year 2004 (Ex. A, Ex. D). They decided to close the business,
and ceased operating in October 2005 (Tr. 50-51). In December 2005, Applicant began
working for his present employer (Ex. 2, Tr. 50). On December 28, 2005, Applicant
completed an e-QIP. He disclosed the Guatemalan citizenship and U.S. legal residency
of his spouse and parents-in-law, and the Guatemalan citizenship and residency of his
sister. He also indicated that his mother had acquired her U.S. citizenship in November
1997 but that he did not know her address because he had no contact with her in a few
years. His father was listed as deceased with the following comment: “I never knew my
father I was raised by my mother she never seen [sic] him again we have no information
about him. I am not sure if he is dead or alive.” (Ex. 2) Applicant denies providing that
information about his father, as his father lives in Guatemala and he visited with him
during most of his visits to Guatemala (Tr. 52-53). Applicant reported on his e-QIP his
ownership since September 1995 of less than an acre of land in Guatemala on which he
was building a home, and travel to Guatemala from October to November 2002,
February to March 2003, October to November 2003, in November 2004, December
2004 to January 2005, May to June 2005, and August to September 2005. Applicant
Applicant was likely referring to repayment of state tax delinquency. His March 2008 credit report (Ex. 4)1
indicates that a state tax lien was filed against him in December 2006 for $5,4000 but that it was released in
May 2007.
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responded “No” to question 27c. “In the last 7 years, have you had a lien placed against
your property for failing to pay taxes or other debts?” (Ex. 2).
A check of Applicant’s credit on January 23, 2006, revealed that the IRS had filed
the federal tax lien of $9,768 in 2001. Disposition of the tax lien was indicated as “UNK.”
(Ex. 5). During an interview of September 16, 2006, Applicant apparently indicated to a
government investigator that he had paid all his taxes except for 2004 and 2005. In
interrogatories, DOHA asked Applicant about whether he had satisfied his federal tax
lien and filed his federal and state returns for tax years 2004 and 2005. DOHA also
asked about his foreign financial assets and any foreign travel since August 2005. On
August 15, 2007, Applicant indicated in response that he had made his last payment on
the federal tax lien debt in June 2007 (IRS records show satisfaction in 2002),  but he1
had not yet filed his federal or state income tax returns for tax years 2004 or 2005. He
indicated he was still working on collecting the required documentation for his
accountant. As for foreign assets, Applicant indicated he had only the property in
Guatemala valued at about $25,000 USD. He also reported a recent trip to Guatemala
in May 2007 to visit family (Ex. 3).
By early 2007, after spending about $20,000, Applicant and his spouse had
temporarily stopped construction of their home in Guatemala as they could not afford to
continue. The residence has been framed with walls, but it lacks doors and windows (Tr.
69).  Applicant now estimates the value of the partially developed property at $40,000-
$45,000 USD (Tr. 70).
In December 2006, the state issued a tax lien against Applicant in the amount of
$5,400.61 (Ex. 4, Ex. K, Tr. 78). The tax lien was released in May 2007 (Ex. K). On
December 18, 2007, Applicant’s accountant completed the federal and state joint
income tax returns for tax years 2004 (Ex. A, Ex. D, Ex. G, Ex. H), 2005 (Ex. B, Ex. E,
Ex. F), and 2006 (Ex. C, Ex. P). The returns were filed with the IRS on December 21,
2007 (Ex. H, Ex. I, Ex. J, Ex. P). Applicant claimed his sister as a dependent on the
returns for tax years 2004, 2005, and 2006, even though he testified she moved back to
Guatemala about eight years ago (Tr. 55) and he does not support her (Tr. 58, 132).
They also claimed a small business loss of $679 (Ex. C) on their 2006 federal return
(Ex. C) because of ongoing receipts and payments for the business (Tr. 133). Based on
the figures provided, Applicant was entitled to federal income tax refunds for all three
years (Ex. H, Ex. I, Ex. J). Applicant’s accountant was still working on their tax returns
for 2007 as of May 7, 2008. The deadline for a timely submission had been extended
(Ex. L).
Applicant’s spouse handles payment of their living expenses (Tr. 81). As of
March 2008, Applicant owed no past due balances on any consumer credit accounts
(Ex. 4).
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Applicant’s sister returned to Guatemala in 2000 after living in the U.S. (Tr.  55).
She visited Applicant in the U.S. one time thereafter, in September 2001 (Tr. 57).
Applicant stayed with his sister during each of his trips to Guatemala (Tr. 71-72). Her
spouse owns a farm and she does not work outside of the home. When Applicant is not
in Guatemala, he calls her once a month to once every two months (Tr. 42-43, 55-57).
Applicant visited with his father during most of his trips to Guatemala (Tr. 52-53,
74). He does not contact him otherwise (Tr. 52). Applicant has a half-brother in
Guatemala who is a construction worker and lives in the area where Applicant grew up.
Applicant sees him when he is in Guatemala (Tr. 54). Applicant has extended family in
Guatemala whom he also visits when he is there. He is closest to a maternal uncle who
is a judge (“a pretty prestigious position”) in Guatemala and visited with him on most of
his trips (Tr. 61-62). He does not contact him by phone often (Tr. 42). Applicant is
unaware of the nature of his uncle’s judicial duties (Tr. 60).  He has two other uncles in
Guatemala who work as a welder and as a farmer, respectively. Applicant has not seen
either of these uncles in a long time and does not contact them by telephone (Tr. 62). Of
his three aunts in Guatemala, two are retired teachers and one is a housewife.
Applicant does not have ongoing contact with them (Tr. 62-64).
 Applicant intends future travel to Guatemala to visit his family members, but he
does not have a trip scheduled at present (Tr. 75). Applicant’s spouse intends to file for
U.S. citizenship to ensure a better future for their son. She has waited to file until all
their tax issues had been resolved (Tr. 113-14). Applicant’s spouse’s parents and
siblings are Guatemala citizens living in the U.S., although she was told by her parents
that they have applied for U.S. citizenship.  She has an aunt in Guatemala whom she
may see when she is in Guatemala (Tr. 115-16).  Applicant’s spouse travels to
Guatemala about once or twice a year, including by herself to give Applicant’s sister
money for materials for the home they are building (Tr. 117, 136).
* * *
Guatemala is a constitutional democratic republic with a legacy of violence and
vigilante justice. While Guatemala generally respects the human rights of its citizens,
the country continues to experience serious human rights problems, including unlawful
killings and other improper conduct by security forces; widespread societal violence;
corruption and substantial inadequacies in the police and judicial sectors; criminal
activity by the police; arbitrary arrest and detention; and failure to protect judicial sector
officials, witnesses, and civil society organizations from intimidation. Democratic
institutions in Guatemala have only a limited capacity to cope with common and violent
crime. On January 11, 2008, Guatemala and the United Nations inaugurated the work of
a joint International Commission Against Impunity in Guatemala.
Relations between the U.S. and Guatemala traditionally have been close,
although at times strained by human rights and civil/military issues. As a member of “the
Friends of Guatemala,” the U.S. played an important role in the UN-moderated peace
accords which ended 36 years of internal armed conflict in Guatemala. The U.S.
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supports broad-based economic growth in Guatemala and Central American integration.
Guatemala is a signatory to the U.S.-Central America Free Trade Agreement and the
U.S. is the country’s largest trading partner. Guatemala and the U.S. cooperate in
combating money laundering, corruption, narcotics trafficking, alien smuggling, and
other transnational crimes, although severe resource constraints of both technology and
manpower, corruption, and an ineffective judicial system hindered Guatemala’s efforts
against transnational crime in 2006.  Guatemala also participates in several regional
groups, especially those related to trade and the environment. 
Policies
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 overarching
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 the 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.” 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
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information. Such decisions entail a certain degree of legally 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
The security concern for foreign influence is set out in AG & 6:
Foreign contacts and interests may be a security concern if the individual
has divided loyalties or foreign financial interests, 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.
Applicant’s spouse and her parents are citizens of his native Guatemala. There is
little risk of undue foreign influence through his spouse or her relatives, given their
longtime U.S. residency and the fact that his spouse does not share close bonds with
any Guatemalan resident citizens separate from those gained through her marriage to
Applicant. AG ¶ 7(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”) applies because of Applicant’s ties in Guatemala. Shared
experiences with his sister under their grandparents’ care forged a strong bond with her,
as evidenced by his several visits to Guatemala to see her since she moved back to
Guatemala. He and his spouse stay with her when they are in Guatemala, and
Applicant calls her once a month to once every two months. Although he does not
contact other relatives by telephone, he visits with his father and also an uncle who is a
judge when he is in Guatemala. Contact with his other uncles and his aunts in
Guatemala is so casual and infrequent to raise little risk, however (see AG ¶ 8(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”). Applicant
testified that he has had no contact for some time with these relatives.
Applicant also owns a small parcel of land in Guatemala that was given to him by
the grandfather who raised him on which he and his spouse have started building a
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home. The government failed to establish how or why this partially developed property
presents an unacceptable risk under Guideline B. There is no indication that the
property is being used as any form of leverage against him. Furthermore, assuming
Applicant’s valuation is accurate, it is worth only between $40,000 and $45,000 USD. In
comparison to his U.S. assets (home ownership, rental income, employment earnings,
and state lottery winnings) it is insubstantial (see AG ¶ 8(f) (“the value or routine nature
of the foreign business, financial, or property interests is such that they are unlikely to
result in a conflict and could not be used effectively to influence, manipulate, or
pressure the individual”).
The government also urges security concern because of Applicant’s repeated
travel to Guatemala. Applicant took eight separate trips between October 2002 and May
2007, primarily to see his sister and twice to attend funerals of family members. His
travel is relevant as it confirms his ties of affection and/or obligation to these foreign
nationals, but there is no evidence that Applicant engaged in any conduct while in
Guatemala that would warrant application of AG ¶ 7(i) (“conduct, especially while
traveling outside the U.S., which may make the individual vulnerable to exploitation,
pressure, or coercion by a foreign person, group, government, or country”).
The affection Applicant has for his sister in Guatemala heightens his vulnerability
to undue foreign influence as does his uncle’s position as a judge in Guatemala. AG ¶
8(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.”) applies only to those relatives in Guatemala with whom he does
not share particularly close relations. Applicant testified that of his uncles and aunts in
Guatemala, he is closest to this uncle who is connected to the Guatemalan government
through its judiciary. The risk of undue foreign influence cannot be safely ruled out
where Applicant described his uncle’s position as “pretty prestigious,” and little more is
known. Applicant claims to not know the nature of his uncle’s duties other than he works
in the courts. Guatemala is not known to target U.S. sensitive information, and the U.S.
and Guatemala have had historically good relations. However, even friendly countries
do not always share the same interests, and the Guatemala government fails to protect
the human rights of its citizens in several aspects.
Applicant’s vulnerability to undue foreign influence through his family members in
Guatemala may yet be overcome by deep and longstanding relationships and loyalties
in the U.S. (see AG ¶ 8(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”). In some ways, Applicant is living the American
dream even though he is not working in the teaching field.  He joined his mother in the
U.S. in March 1989, and began working after an academic year of English language
study. In 1999, he married his spouse, who remains a citizen of Guatemala but
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immigrated to the U.S. when she was 17 in 1990. In 2000, he started his own
landscaping business. While it was not as profitable as he had hoped, he won $1 million
in a lottery. He and his spouse own their home in the U.S. In 2002, he became a
naturalized U.S. citizen. Yet, I am unable to conclude based on this record that his ties
to the U.S. are deep and longstanding. He has strong bonds of affection with his sister.
All his recent vacations have been spent in Guatemala to visit his family.  He and his
spouse have spent about $20,000 so far to build a home that they hope to stay in during
their trips to Guatemala and possibly retire to.
Guideline F, Financial Considerations
The security concern for financial considerations is set out in AG & 18:
Failure or inability to live within one=s means, satisfy debts, and meet
financial obligations may indicate poor self-control, lack of judgment, or
unwillingness to abide by rules and regulations, all of which can raise
questions about an individual=s reliability, trustworthiness and ability to
protect [sensitive] information. An individual who is financially
overextended is at risk of having to engage in illegal acts to generate
funds.
The government’s case under Guideline F is based solely on Applicant’s alleged
failure to repay a federal income tax lien of $9,768.14 (SOR ¶ 2.a) despite having about
$2,635 monthly in discretionary funds (SOR ¶ 2.b). IRS records show that the lien was
filed in January 2001 for failure to pay balances owed for tax years 1997 and 1998. He
did not pay the federal taxes owed for 1997 when he filed his return, and paid only $500
on a tax debt of $5,902 when he filed his return for 1998. He was assessed a late filing
penalty for tax year 1997 because he did not file his return until June 2, 1999. AG ¶¶
19(a) (“inability or unwillingness to satisfy debts”) and 19(c) (“a history of not meeting
financial obligations”) apply.
While the credit bureaus have yet to report the lien as satisfied (Ex. 4, Ex. 5), IRS
records corroborate Applicant’s claim that the debt has been paid through a
combination of payments and interception of tax refunds (see Ex. N, Ex. O).  Applicant
paid $1,350 toward his tax debt for 1998 before the lien was filed. He has not
adequately explained his failure to pay only $200 during calendar year 2000, but IRS
records also confirm that after the tax lien, his spouse made regular payments on the
tax debt starting in February 2001. Debt satisfaction in response to a tax lien does not
fully qualify as a good-faith effort under AG ¶ 20(d) (“the individual initiated a good-faith
effort to repay overdue creditors or otherwise resolve debts”), but there are clear
indications that his tax problems are being resolved. AG ¶ 20(c) applies because of
satisfaction of his delinquent tax debts and no evidence of any past due balances on
other accounts. A state tax lien filed against Applicant in the amount of $5,400 in
December 2006 (Ex. 4) was released in May 2007, and Applicant’s spouse has been
The lien (Ex. M) was filed in accord with IRS regulation 301.6323(f)(1). Under the Internal Revenue Service2
Code set forth in 26 C.F.R. Part 301, Section 301.6321 provides in part:
If any person liable to pay any tax neglects or refuses to pay the same after demand, the
amount (including interest, additional amount, addition to tax, or assessable penalty, together
with any costs that may accrue in addition thereto) shall be a lien in favor of the United States
upon all property and rights to property, whether real or personal, tangible or intangible,
belonging to such person.
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managing their day-to-day expenses responsibly. Applicant’s March 2008 credit report
(Ex. 4) lists no delinquent consumer credit accounts.
Guideline J, Criminal Conduct
Under Guideline J, “criminal activity creates doubt about a person’s judgment,
reliability, and trustworthiness. By its very nature, it calls into question a person’s ability
or willingness to comply with laws, rules and regulations.” (AG ¶ 30).  The government
submits criminal conduct concerns are raised by Applicant’s failure to pay income taxes
assessed in 1999, which the record shows was for tax years 1997 and 1998 (SOR ¶
3.a) and by his willful failure to file federal and state income tax returns for tax years
2004 and 2005 by August 2007. Concerning the federal tax lien for failure to pay, the
government did not allege a specific statutory violation. Under 26 U.S.C. § 7203 (see
SOR ¶ 3.b), the failure to file a required return and/or pay a required tax is punishable
as a misdemeanor, provided a willful noncompliance:
Any person required under this title to pay any estimated tax or tax, or
required by this title or by regulations made under authority thereof to
make a return, keep any records, or supply any information, who willfully
fails to pay such estimated tax or tax, make such return, keep such
records, or apply such information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law, be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not more
than $25,000 ($100,000 in the case of a corporation), or imprisoned not
more than 1 year or both, together with the costs of prosecution.
The lien was issued under IRS regulation (26 C.F.R. § 301.6321-1), which
provides a legal remedy to collect where a liable person neglects or refuses to pay
taxes after demand.  Failure to comply with a demand for taxes need not be willful for a2
lien to issue. In this case, the evidence falls short of proving a willful failure to pay the
taxes for 1997 and 1998. Applicant made some payments on his tax debt for 1998
before the lien was issued, which shows some effort to comply with his tax obligation.
As for his failure to timely file his returns for tax years 2004 and 2005 (and while
not alleged also 2006), the evidence shows he filed the returns in December 2007,
shortly after he received the completed returns back from their accountant.
Unquestionably, the returns were late. Both Applicant and his spouse testified that their
accountant kept asking for additional documentation that it took some time to provide
The government did not allege any specific state law allegedly violated by Applicant in not filing his state3
returns on time.
12
(“She would tell me I need a statement, like bank statements from whatever, I would
start looking for those statements and bring it back to her.” Tr. 129). In response to the
seemingly unreasonable delay in furnishing the documentation, Applicant’s spouse
explained that documents were destroyed in a flood in their home so she had to request
and pay for records (Tr. 129). It must also be noted that the returns for 2005 and 2006
were complicated by the closure of his landscaping business. Applicant showed poor
judgment in failing to ensure they were filed reasonably promptly (See Guideline E,
infra), but I am not persuaded he acted in willful disregard of his federal or state filing
obligations.3
Guideline E, Personal Conduct
The security concern for personal conduct is set out in AG ¶ 15:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual’s reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
When Applicant applied for his security clearance in December 2005, he did not
list the federal tax lien that had been filed against him in January 2001, even though that
lien should have been disclosed in response to question 27c. When he responded to
the SOR in December 2007 (Ex. 1), Applicant answered, “I admit,” but then claimed he
did not remember the lien (“I’m really sorry but I did not remembered [sic] at time.”).
After the SOR was reissued, Applicant denied knowing of the lien when he filed his e-
QIP (“I did not know that but we don’t owe anything.” Answer). When questioned about
his inconsistent explanations, Applicant testified, “I was thinking you asked me if I owe
them that money to the IRS.” He went on to indicate that he did not know about the lien
(Tr. 86-87). He and his spouse both testified that they learned about the lien “like two
years ago” (Tr. 88, 111). Despite Applicant’s inconsistent explanations, the government
conceded in closing that it failed to establish deliberate falsification of the e-QIP since it
was not clear when Applicant learned of the federal tax lien (Tr. 146). After a review of
the evidence of record, I conclude the evidence falls short of proving the deliberate
falsification required under AG ¶16(a) (“deliberate omission, concealment, or
falsification of relevant facts from any personnel security questionnaire, personal history
statement, or similar form used to conduct investigations, determine employment
qualifications, award benefits or status, determine security clearance eligibility or
trustworthiness, or award fiduciary responsibilities”).
The IRS records show a levy notice was issued on January 18, 2001, and the tax
lien on January 26, 2001. After making only one tax payment of $200 in May 2000,
13
Applicant’s spouse began making monthly payments to the IRS in late February 2001. It
is possible that these payments were in response to a levy notice, although that raises
the issue of how and why Applicant learned of the lien only two years ago, when the tax
debt had already been satisfied.  DOHA interrogatories indicate that Applicant was
interviewed in September 2006 by a government investigator and that he indicated he
was unaware of any tax liens against him.
Yet at the same time, security significant personal conduct concerns are raised
under AG ¶ 16(d) (“credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse determination, but
which, when combined with all available information supports a whole-person
assessment of questionable judgment, untrustworthiness, unreliability, lack of candor,
unwillingness to comply with rules and regulations, or other characteristics indicating
that the person may not properly safeguard protected information”) by Applicant’s
negligence in handling his tax debt for 1997 and 1998 and in failing to ensure that his
tax returns for 2004 and 2005 were filed reasonably promptly. Applicant knew or should
have known when he signed and submitted his income tax returns for tax years 1997
and 1998 that he had substantially underpaid his federal income taxes for those years.
He paid an additional $650 in 1999 on his tax debt for 1998, but nothing on the tax debt
in 1999. He paid only $200  toward his back taxes in 2000. His 2004 income tax return
was not filed until December 2007. It is difficult to believe that his spouse followed up
with their accountant at least once a month (Tr. 130) for that entire period.  Although the
taxes have been paid and all the delinquent returns have been filed, doubts persist
about his reform given he claimed his sister as a dependent on the joint income tax
returns for 2004, 2005, and 2006. Under IRS regulations, Applicant or his spouse was
not entitled to claim his sister as a dependent for those years unless she received over
half of her support from him or her. Applicant’s sister moved back to Guatemala in about
2000 and they do not support her financially. When asked why they continued to claim
his sister as a dependent, Applicant’s spouse responded, “We told her not to be a
dependent anymore” (Tr. 131) Neither Applicant nor his spouse offered a credible
explanation for why they signed and submitted the returns to the IRS claiming his sister
as a dependent. The IRS records of their returns for 2004 (Ex. H), 2005 (Ex. I), and
2006 (Ex. J) show four exemptions claimed each year with his sister as a dependent.
Even if Applicant or his spouse had notified their accountant of the error, it does not
relieve them of their obligation to claim only those deductions to which they are legally
entitled. Applicant’s handling of his income tax returns raises significant doubt about
whether he takes his obligations of U.S. citizenship as seriously as he should.
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
To the extent that the travel confirms his close relationships with some family members, it has been covered4
under SOR ¶¶ 1.b, 1.c, and 1.g.
14
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. 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.
The salient issue in the security clearance determination is not in terms of loyalty,
but rather what is clearly consistent with the national interest. See Executive Order
10865, Section 7. An applicant may have the best of intentions and yet be in an
untenable position of potentially having to choose between a dear family member and
the interests of the U.S. Applicant’s ties to primarily his sister in Guatemala, but also to
his father and an uncle, present an unacceptable risk of undue foreign influence. Doubts
also persist about his ability to abide by security regulations given the poor judgment
exhibited in his handling of his tax issues.
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
Subparagraph 1.a: For Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: Against Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.i: For Applicant4
Paragraph 2, Guideline F: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Paragraph 3, Guideline J: FOR APPLICANT
Subparagraph 3.a: For Applicant
Subparagraph 3.b: For Applicant
15
Subparagraph 3.c: For Applicant
Paragraph 4, Guideline E: AGAINST APPLICANT
Subparagraph 4.a: For Applicant
Subparagraph 4.b: Against Applicant
Conclusion
In light of all of the circumstances, it is not clearly consistent with the national
interest to grant Applicant eligibility for a security clearance. Eligibility for access to
classified information is denied.
________________________
ELIZABETH M. MATCHINSKI
Administrative Judge