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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 09-00246
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
Based upon a review of the case file, pleadings, and exhibits, eligibility for access
to classified information is denied.  
Statement of the Case
Applicant submitted his Security Clearance Application (SCA, Item 4) on
September 5, 2008. He provided an interview to an investigator from the Office of
Personnel Management (OPM) on October 10, 2008. The interview appears in his
Answers to Interrogatories, dated March 10, 2009 (Item 5). On May 19, 2009, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR)
detailing security concerns under foreign preference (Guideline C) and foreign influence
(Guideline B). The action was taken pursuant to 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 made
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effective within the Department of Defense for SORs issued on or after September 1,
2006. 
Applicant submitted his answer to the SOR on June 11, 2009. He requested a
decision be made on the record in lieu of a hearing. A copy of the Government’s File of
Relevant Material (FORM, the government’s evidence in support of the allegations of
the SOR) was sent to Applicant on July 16, 2009. Applicant received the FORM on July
28, 2009. His response was due on August 28, 2009. No response was received. The
case file was assigned to me on October 6, 2009. 
Findings of Fact
The SOR alleges six allegations under foreign preference (Guideline C), and five
allegations under foreign influence (Guideline B). Applicant essentially admitted all
allegations with minor explanation. Applicant married his 26-year-old wife in April 2008.
She entered the U.S. in that month on a fiance visa and has applied for a resident visa.
Applicant seeks his first security clearance. 
Foreign Preference
Applicant was born in the U.S. in January 1982 to Yemeni parents. This 27-year-
old has worked as a software engineer II for a defense contractor since June 2008. 
Applicant exercises dual citizenship with Yemen and the U.S. (SOR 1.a, Item 4).
On March 10, 2009, Applicant possessed a Yemeni passport that was issued in March
2008, and scheduled to expire in 2014. He admitted that he renewed his Yemeni
passport as requirement to maintain Yemeni citizenship (SOR 1.b, Item 6). Applicant
was issued a Yemeni passport in March 2008 even though he is a U.S. citizen by
reason of birth, and he had a valid U.S. passport issued on October 2, 2002 (SOR 1.c,
Item 5). He uses his Yemeni passport instead of his U.S. passport to enter and exit
Yemen (SOR 1.d, Item 3, 6). He used his Yemeni passport to enter and exit Egypt in
March 2008 (SOR 1.e, item 3, 6). Applicant does not want to relinquish his Yemeni
citizenship, and maintains his Yemeni passport to travel to the country and to prevent
retaliation by the Government of Yemen against his family (SOR 1.f, Item 3, 5).
Regarding the risk of retaliation, Applicant stated, “Furthermore, Due to the political
climate, I might not be allowed to enter Yemen and there might be government
retaliation against me, my wife and our families” (Item 5).
Foreign Influence
Applicant’s spouse is 26 years old and a citizen of Yemen residing in the U.S.
(SOR 2.a, Item 3). She is a homemaker and part-time student at a local college. She
received medical technician training from a college in Yemen (Item 5 at 2). She was
expecting a child in September 2009 (Id.). 
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Applicant’s mother, 57 years old, is a citizen of Yemen residing in the U.S. and
Yemen (SOR 2.b). She is a homemaker, having retired as a flight attendant manager for
Yemenia Airlines (Item 5 at 2).
Applicant’s father, 60 years old, is a citizen of Yemen residing mostly in Yemen
and partially in the U.S. (SOR 2.c). He is a commercial airline pilot for Yemenia Airlines
(Item 5 at 2). 
Applicant’s sister is a resident citizen of Yemen (SOR 2.d). She is a 22-year-old
college student at the University of Lebanon (Item 5 at 2). 
Applicant’s father-in–law is a citizen of Yemen residing in the country (SOR 2.f).
He is a physician at a hospital. Applicant’s mother-in-law was born and continues to live
in Yemen as a homemaker (Item 5 at 2). 
Under SOR 2.g, Applicant has made six trips to Yemen since 1999 (Id.). The last
trip was from October 2007 to April 2008, not February 2008 as alleged (Item 3).
Applicant has weekly contact with his family and visits them every two years
(Item 5 at 3). Applicant’s wife has weekly contact with their families (Id.). 
Character Evidence
Applicant submitted no evidence concerning his job performance. 
Administrative Notice
I have taken administrative notice of facts contained in the administrative notice
documents provided by the government. The administrative notice documents are:
U.S. Department of State, Bureau of Near Eastern Affairs, Background Note; Yemen,
dated December 2007, (10 pages);
U.S. Department of State, Yemen Country Specific Information, dated April 22, 2009 (6
pages);
U.S. Department of State, Bureau of Consular Affairs, Travel Warning-Yemen, dated
June 26, 2009 (2 pages);
U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Yemen
Country Reports on Human Rights Practices-2008, dated February 25, 2009 (30
pages);
U.S. Department of State, Office of the Coordinator for Counter Terrorism, Country
Reports on Terrorism, Chapter 2 - Country Reports; Middle East and North Africa
Overview (“Yemen” at pages 23-25), dated April 30, 2009 (25 pages);
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Congressional Research Service (CRS) Report for Congress, Yemen: Current
Conditions and U.S. Relations, dated September 12, 2007 (12 pages).
After reviewing the administrative source documents, I take administrative notice
of the following facts concerning the country of Yemen:
The Republic of Yemen was formed in 1990. The country is an important partner
of the U.S. in the war on terrorism. However, terrorist organizations and related
organizations are believed to have active operations in the eastern part of the country
and the Arab Peninsula, and are engaged in extremist activities against U.S. citizens
and interests. Yemen has a poor human rights record with governmental agencies
engaging in human rights violations including arbitrary arrests, detentions without
charges, and torture. The failure of Yemen to not always recognize the U.S. citizenship
of dual citizens of Yemen and the U.S. hampers efforts by the U.S. consulate to provide
aid to those individuals. 
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG). The
adjudicative guidelines list potentially disqualifying conditions and mitigating conditions,
and are useful in evaluating an applicant’s eligibility for access to classified information. 
In reaching a decision under the Directive, the administrative judge must
consider all available, reliable information about the person, past and present, favorable
and unfavorable, in making a decision. The administrative judge’s ultimate adjudicative
goal is a fair, impartial and commonsense decision that incorporates a number of
variables known as the “whole person concept.”
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. Such decisions entail a certain degree of legally permissible extrapolation as
to potential, rather than actual, risk of compromise of classified information.
The protection of the national security is the paramount consideration in every
decision. AG ¶ 2(b) recommends that any reasonable doubt concerning personnel being
considered for access to classified information should 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.
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Analysis
Foreign Preference
AG ¶ 9 sets forth the security concern related to foreign preference:
When an individual acts in such a way as to indicate a preference for a
foreign country over the U.S., then he or she may be prone to provide
information or make decisions that are harmful to the interests of the U.S.
AG ¶ 10 lists two conditions that may be disqualifying. They are:
AG ¶ 10(a) (exercise of any right, privilege, or obligation of 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;
(3) accepting educational, medical, retirement, social welfare, or
other such benefits from a foreign country;
(b) (action to acquire or obtain recognition of a foreign citizenship by an
American citizen). 
Applicant is a dual citizen by virtue of his birth in the U.S. and his parents’ birth in
Yemen. After becoming a U.S. citizen through birth in 1982, and receiving his U.S.
passport on October 3, 2002, he applied for and was granted a Yemeni passport in
March 2008. The Yemeni passport is scheduled to expire in March 2014. By using his
Yemeni passport on at least four occasions to enter an exit Yemen, he took advantage
of a privilege of Yemeni citizenship he was not entitled to as a U.S citizen. Both AG
conditions apply. 
AG ¶ 11 has two conditions that are potentially applicable:
AG ¶ 11(b) (the individual has expressed a willingness to renounce dual
citizenship); 
AG ¶ 11(e) (the passport has been destroyed, surrendered to the
cognizant security authority, or otherwise invalidated). 
Applicant has essentially stated that he does not want to renounce his citizenship
because he is concerned about some kind of retaliation being taken by the Government
of Yemen against his family. AG ¶ 11(b) does not apply. Applicant appears to have no
intention of relinquishing his Yemeni passport as it allows him to enter and exit Yemen
to see his family without a problem. AG ¶ 11(e) is inapplicable. The foreign preference
guideline is resolved against Applicant. 
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Foreign Influence
AG ¶ 6 expresses the security concern of the foreign influence guideline:
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 U.S.
citizens to obtain protected information and/or is associated with a risk of
terrorism.
AG ¶ 7 has two conditions that create security concerns that are applicable:
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);  
AG ¶ 7(d) (sharing living quarters with a person or persons, regardless of
citizenship status, if that status creates a heightened risk of foreign
inducement, manipulation, pressure, or coercion).
Applicant has close and continuing family ties as demonstrated by his immediate
family members who are citizens and at least part-time residents of Yemen. Applicant’s
parents are citizens of Yemen residing part of the year in the U.S. Applicant’s sister and
parents-in-law are also citizens and residents of Yemen. The strength of Applicants
family ties is demonstrated by his six trips to the country since 1999. In sum, Applicant’s
family members are citizens and residents of Yemen, a country with diplomatic relations
with the U.S., but also a country with a poor human rights record, and a location where
internationally recognized terrorist organizations are believed to target U.S. citizens and
interests. There is sufficient evidence under AG ¶ 7(a) to establish a heightened risk of
foreign exploitation. Applicant’s wife (a Yemeni citizen) adds to the heightened risk of
influence because she has been sharing living quarters with him since April 2008. AG ¶
7(d) also applies. 
The burden then switches to Applicant to adduce sufficient evidence under AG
¶¶ 8(a), 8(b), and 8(c), that he is unlikely to be placed in a position of having to choose
between his relatives in Yemen and U.S. interests. AG ¶ 8(a) indicates:
(the nature of the relationships with foreign persons, the country in which
these persons are located, or the position or activities of those persons in
that country are such that it is unlikely the individual will be placed in a
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position of having to choose between the interests of a foreign individual,
group, organization, or government and the interests of the U.S.); 
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 minimal, or the individual has such deep and long-lasting
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);
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)
With regard to AG ¶ 8(a), Applicant’s mother is retired from the airline business.
However, there is no way to tell whether the airlines is a government enterprise or is a
private entity. The record does not reveal whether she receives a pension from the
Yemeni airline or any other information to explain how she supports herself presently.
The same question arises concerning the current employment of Applicant’s father as a
pilot of the same airline. There is no indication whether the airline is a government
business or private business. Though Applicant provided information that his father-in-
law is a physician, there is no information whether he is in private practice or works for
the government. Applicant also provided information that his mother-in-law is a
homemaker. The record is silent on whether she has always been a homemaker or is
retired from a profession. The lack of detail about Appellant’s immediate family
members, their occupations/activities/lifestyle, and his genuine concern about retaliation
against members of his family by the Government of Yemen, renders AG 8(a)
inapplicable. 
Applicant’s close contacts with his immediate family members is not minimal, and
he has provided scant evidence showing his relationships in the U.S. AG ¶ 8(b) does
not apply.
The presumption that applies to AG ¶ 8(c) is that contact with immediate family
members is neither casual nor infrequent. Considering his weekly contact and physical
contact every two years with his immediate family (resident citizens of Yemen) is neither
casual nor infrequent, Applicant has not established mitigation under AG ¶ 8(c). Judging
the entire record in its totality, the foreign influence guideline is resolved against
Applicant. 
Whole Person Concept 
My finding against Applicant under foreign preference and foreign influence
guidelines must still be evaluated in the context of nine variables known as the whole
person concept. In evaluating the relevance of an individual’s conduct, the
administrative judge should consider the following factors at ¶ 2.(a) of the AG: 
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(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 the participation was 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. 
Applicant was 26 years old when he declared his dual citizenship status in his
September 2008 security form (Item 4), and indicated he wanted to maintain that status
in March 2009 (Item 5). He took unequivocal action to sustain his dual status when he
applied for and received a Yemeni passport in March 2008, 26 years after he was born
in the U.S., and more than five years after he received his U.S. passport. He admitted
he renewed his foreign passport to preserve his Yemeni citizenship. Applicant intends to
continue using his Yemeni passport when entering and exiting the country because he
believes the Government of Yemen may retaliate against his family if he renounces his
citizenship or destroys his passport. Applicant’s decision not to surrender his foreign
passport and his frequent and close contact with his immediate family members,
resident citizens of Yemen, has not been mitigated. Accordingly, the foreign preference
and foreign influence guidelines are found against him.
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 (Foreign Preference, Guideline C): AGAINST APPLICANT
Subparagraph 1.a. Against Applicant
Subparagraph 1.b. Against Applicant
Subparagraph 1.c. Against Applicant
Subparagraph 1.d. Against Applicant
Subparagraph 1.e. Against Applicant
Subparagraph 1.f. Against Applicant
Paragraph 2 (Foreign Influence, Guideline B): AGAINST APPLICANT
Subparagraph 2.a. Against Applicant
Subparagraph 2.b. Against Applicant
Subparagraph 2.c. Against Applicant
Subparagraph 2.d. Against Applicant
Subparagraph 2.e. Against Applicant
Subparagraph 2.f. Against Applicant
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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 eligibility for a security
clearance. Eligibility for access to classified information is denied. 
                       
Paul J. Mason
Administrative Judge