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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-04535
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Alan V. Edmunds, Esquire
Jillian L. Oportus, Esquire
July 13, 2009
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on July 2, 2007.  On July 15, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines B and C for Applicant.  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. 
Applicant acknowledged receipt of the SOR on July 21, 2008.  He answered the
SOR in writing on July 30, 2008, and requested a hearing before an Administrative
Judge.  DOHA received the request on August 4, 2008.  This case was originally
assigned to another judge on April 29, 2009, but reassigned to the undersigned on May
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1, 2009.  DOHA issued a notice of hearing on May 6, 2009, and I convened the hearing
as scheduled on May 27, 2009.  The Government offered, by way of stipulation, Exhibits
(GXs) 1 through 3, which were received into evidence.  Applicant testified on his own
behalf and submitted Exhibits (AppXs) A through L, without objection.  DOHA received
the transcript of the hearing (TR) on June 2, 2009.  The record closed on May 27, 2009.
Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
Procedural and Evidentiary Rulings
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to Algeria.  The request was granted.  The request, and the
attached documents, were not admitted into evidence, but were included in the record.
The facts administratively noticed are set out in the Findings of Fact, below. 
Findings of Fact
In his Answer to the SOR, Applicant admitted the underlying facts of all of the
allegations of SOR, with explanations.
Guideline C - Foreign Preference
The Applicant was born in Algeria, but first came to the U.S. at 20 years of age,
to attend college, in 1976 (TR at page 24 line 8 to page 25 line 19, at page 35 line 23 to
page 38 line 10, and GX 1 at page 12).  After graduation in 1980, he returned to Algeria
(Id).  However, in 1983, he returned to the U.S. to attend graduate school (TR at page
35 line 23 to page 38 line 10, and GX 1 at page 11).  He, soon thereafter, married his
first wife, who was a citizen of the U.S. (TR at page 35 line 23 to page 38 line 10).
The Applicant became a U.S. citizen in January of 1992 (Id, and GX 1 at page 7).
In 1995, he was remarried to a naturalized U.S. citizen, who was also born in Algeria
(GX 1 at page 16~17).  She is a part-time school teacher in the U.S. (TR at page 24 line
8 to page 25 line 19).  They have two children, ages 12 and 7, who were born in the
U.S. (TR at page 33 lines 20~24).  He owns a home in the U.S., earns about $115,000
a year, and has no potential inheritance in Algeria (TR at page 24 line 8 to page 25 line
19, at page 33 lines 4~7, and at page 47 lines 15~19).
1.a.~1.e.  Although the Applicant does not consider himself a dual national with
Algeria, he did exercise dual nationality by keeping and later renewing his Algerian
passport, in 2007 (TR at page 32 line 21 to page 33 line 3).  He last used his Algerian
passport to enter and exit Algeria in 2005 (TR at page 26 line 20 to page 27 line 4).
However, in April of 2009, the Applicant destroyed his Algerian passport in the presence
of his Facility Security Officer (FSO) (TR at page 25 line 22 to page 26 line 19).  This is
evidenced by a letter from his FSO (AppX F).  The Applicant has also expressed a
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willingness to renounce any Algerian citizenship he may have (TR at page 40 line
11~13).
Guideline B - Foreign Influence
2.a.  The Applicant’s parents are deceased, but he has four sisters and four
brothers who are citizens of and reside in Algeria (TR at page 27 line 5 to page 32 line
14).  None of these siblings have any connection with the Algerian government (Id).
The Applicant has a “very indifferent relationship” with his siblings, and has had virtually
no contact with them since 2005 (TR at page 27 line 5 to page 32 line 14, and at page
42 line 6 to page 43 line 12).  None of these siblings works for the Algerian government
(Id).
2.b.  The Applicant’‘s father-in-law and sister-in-law are also citizens of and
reside in Algeria (TR at page 43 line 13 to page 44 line 16, and at page 45 line 16 to
page 46 line 10).  Neither in-law has any connection with the Algerian government, and
he has little contact with either his father-in-law or sister-in-law (Id).
The Applicant would not be subject to coercion vis-a-vis any of his Algerian
relatives (TR at page 33 lines 14 to 19).
I also take administrative notice of the following facts.  Algeria is a multi-party
constitutional republic that has suffered from domestic terrorism throughout the 1990s to
the present.  Although the U.S. seeks to support the recent democratic efforts in Algeria,
the U.S. Government has become increasingly concerned with the changing nature of
terrorism in Algeria and its global efforts.  The U.S. has worked with Algeria to help
combat terrorism in that country, but its government projects inconsistent policies
regarding its position on international terrorism, often in conflict with the U.S.
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 over-arching
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.
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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 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 C - Foreign Preference
Paragraph 9 of the new adjudicative guidelines sets out the security concern
relating to Foreign Preference: “When an individual acts in such a way as to indicate a
preference for a foreign country over the United States, then he or she may be prone to
provide information or make decisions that are harmful to the interests of the United
States.”
Subparagraph 10(a)(1) is applicable: “exercise of any right, privilege or obligation
of a foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of
a family member.  This includes but is not limited to: (1) possession of a current foreign
passport.”  Here, the Applicant, a naturalized citizen, used an Algerian passport to enter
that country in 2005.  This is clearly countered, however, by the mitigating conditions
found under Subparagraphs 11(b) and 11(e).  Subparagraph 11(b) notes that where
“the individual has expressed a willingness to renounce dual citizenship,” this is
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mitigating.  I find that Applicant’s renunciation intention to be genuine.  Furthermore,
under Subparagraph 11(e), the Applicant’s “passport has been destroyed [in the
presence of] . . . the cognizant security authority,” his FSO.
Guideline B - Foreign Influence
Paragraph 6 of the new adjudicative guidelines sets out the security concern
relating to Foreign Influence: “Foreign contacts and interests may be a security concern
if the individual has divided loyalties or foreign 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 a foreign interest.”
Here, Paragraph 7(a) is applicable: “contacts with a foreign family member . . .
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.”  The
Applicant’s eight siblings, and father-in-law and sister-in-law are citizens of and reside in
the Algeria.  This is clearly countered, however, by the first mitigating condition, as “the
nature of the relationships with foreign persons, the country in which these persons are
located . . . 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 . . . and the interests of the U.S.”
The Applicant has had little contact with his Algerian based relatives since 2005.  His
Algerian relatives have no connection with the Algerian government, and the Applicant
can not be coerced by the Algerian government vis-a-vis these relatives.
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) 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 Applicant has the unqualified support of those who know and have worked
with him (AppXs B~D and L).  Of particular note are the comments of his Director, who
avers, in part, the following:
[The Applicant] . . . has shown himself to me to be an honorable,
dependable person whom I have depended upon.  His actions have
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always been honest and straightforward.  He values his family and
participates in their activities within the community.  He has frequently
expressed his appreciation for the values of the United States.  He desires
to raise his family as Americans (AppX B).
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Overall, the record evidence leaves me
without questions or doubts as to Applicant’s eligibility and suitability for a security
clearance.  For all these reasons, I conclude Applicant mitigated the security concerns
arising from his alleged Foreign Preference and Foreign Influence. 
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 C: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Paragraph 2, Guideline B: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge