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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------ )       ISCR Case No. 10-01746
)
)
Applicant for Security Clearance )
Appearances
For Government: Caroline H. Jeffreys, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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CURRY, Marc E., Administrative Judge:
Applicant mitigated the security concern generated by his relatives who are
Afghani citizens living in either Pakistan or Canada. Clearance is granted.
Statement of the Case
On August 13, 2010, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) detailing the security concerns under Guideline B,
Foreign Influence. 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 answered the SOR on August 28, 2010, admitting SOR ¶¶ 1.a and 1.b,
and denying the remaining allegations. He requested a hearing. On November 15, 2010,
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I received the case assignment. DOHA issued a notice of hearing on December 1, 2010,
scheduling it for December 14, 2010. I held the hearing as scheduled. During the
hearing, I received five Government exhibits, marked as Government Exhibits (GE) 1
through 5, seven Applicant exhibits marked as Applicant Exhibits (AE) A through G, and
Applicant’s testimony. Also, at the Government’s request, I took administrative notice of
the adjudicative facts set forth in 17 documents, marked as Hearing Exhibit (HE) I
through XVII. DOHA received the hearing transcript (Tr.) on December 22, 2010.
Procedural Ruling
At the hearing, Department Counsel moved to amend the SOR as follows:
1. Striking the allegation set forth in  SOR ¶ 1.c, and replacing it with the
following: “Your mother-in-law is a citizen of Afghanistan and a resident of
Pakistan”;
2. Striking the allegation set forth in  SOR ¶ 1.d, and replacing it with the
following: “Your sister-in-law is a citizen of Afghanistan and a resident of
Pakistan”; and 
3. Striking the allegation set for in SOR ¶ 1.e, and replacing it with the
following:  “You have two brothers-in-law who are citizens of Afghanistan
and residents of Pakistan.” (Tr. 38)
Applicant did not object and I granted the motion.
Findings of Fact
Applicant is a 45-year-old married man with ten children ranging in age from 6 to
28. He has a high school diploma earned from a high school in Afghanistan, his native
country.
In 1990, shortly after graduating from high school, Applicant fled Afghanistan to
avoid the military draft. He did so by walking across the border into Pakistan. Using
money given to him by his parents, wealthy Afghani elites, Applicant paid an unknown
Pakistani agent $3,000 for a fraudulent Pakistani passport. (GE 5 at 6, 12) Applicant then
used this passport to immigrate to the United States. (Id. at 7)
Upon entering the United States, an agent from the U.S. Immigration and
Naturalization Service identified the passport as fraudulent and arrested Applicant. He
was detained for two months. (Id. at 8) Applicant retained an attorney, and was
subsequently granted political asylum in October 1992. He became a naturalized U.S.
citizen in 1999.
When Applicant emigrated from Afghanistan, he was married and had seven
children. (Tr. 52, 57) Some time after Applicant left Afghanistan, his wife and children
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moved to Pakistan. In 2001, Applicant’s wife and three of his children immigrated to the
United States. (Tr. 44) Four of his children remained in Pakistan. (Tr. 52, 71)
All of Applicant’s family members who joined him in the United States in 2001 are
now naturalized U.S. citizens. (GE 4 at 6; Tr. 44) Applicant’s youngest three children
were all born in the United States.
Applicant’s parents are citizens of Afghanistan living in the United States. (GE 4 at
6) They are permanent legal residents. (Id.; Tr. 35) Applicant’s sister is also a U.S.
emigrant from Afghanistan with permanent legal residence status. (Id.) Applicant’s
brother is a citizen of Afghanistan living in Canada. Applicant has only spoken with him
once in the past ten years. (Tr. 28).
From 1995 to 2006, Applicant worked for an air freight delivery company as a
courier. From 2006 to 2008, Applicant worked for a defense contractor as a linguist.
From November 2007 through April 2008, while working as a linguist, Applicant was
assigned to a special operations task force in Afghanistan that was attached to “various
U.S. Special Forces elements.” (AE A) He worked “in the field under combat conditions
as well as at the respective firebases in the rear, interpreting both live and recorded
conversations. (Id.) His contributions “were vital to the success of [the] mission.” (Id.) The
task force was pleased with the quality of his work, issuing him a certificate of
appreciation “for [his] contribution  . . .  during Operation Enduring Freedom.”(AE D)
Shortly after returning from Afghanistan, Applicant left his job with the defense
contractor and returned to his job with the air freight delivery company. He needs a
security clearance because some of his deliveries are to secured facilities. (Tr. 62)
Applicant has reapplied for a job with the company with whom he worked as a translator,
and is seeking to return to the field to “sacrifice [himself] to this country,” by returning to
Afghanistan and working as a translator. (Tr. 14)
Applicant’s four children who remained in Pakistan when his wife immigrated to
the United States are still living there. They are clothing merchants. (Tr. 32) Applicant
last travelled to Pakistan to visit these children in April 2000. (GE 5 at 26) He did not visit
them when he was in Afghanistan working as a translator. (Tr. 41)  
There is conflicting evidence regarding the level of contact Applicant has with his
children in Pakistan. At the hearing and during an interview with an agent from the Office
of Personnel Management, Applicant characterized his relationship with his children
living in Pakistan as estranged. Also, he stated he has not talked to them since 2002.
(GE 4 at 5; Tr. 31-32) In 2007, as part of a counterintelligence and security screening
questionnaire Applicant completed pursuant to an investigation conducted by another
agency, he stated that he talks with his children in Pakistan approximately once per
month. (GE 5 at 25) 
Applicant’s mother-in-law, along with two brothers-in-law, and a sister-in-law, live
in Pakistan. (Tr. 28, 55) His father-in-law is deceased. (Tr. 36) Applicant’s mother-in-law
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and his sister-in-law are  homemakers. His brothers-in-law own a clothing store. (Tr. 28)
He talks to these relatives once or twice per year. (Tr. 55) His wife talks with them
approximately once per month. (Tr. 28) None of these relatives have ever travelled to the
United States to visit Applicant’s family. (Tr. 56)
One of Applicant’s sons whom he raised in the United States is currently serving
in the Marine Corps. (Tr. 23) Applicant has a son-in-law who is an Afghani-American,
currently working as a translator with the armed services. (Tr. 33)
Applicant owns his home and has satisfied his mortgage. (Tr. 46) He has no
foreign assets.  
Afghanistan is an Islamist Republic that is emerging from decades of civil war,
anarchy, and radical Islamic fundamentalism with the help of the United States. (HE I at
1-7, 13; HE III at 1) United States and coalition forces have remained active in
Afghanistan since removing the Taliban from power in November 2001. (Id. at 4) With
U.S. help, Afghanistan has endeavored to build a democracy that respects the rule of
law, and seeks to rebuild the country’s infrastructure. (Id. at 7)
These tasks remain daunting as Taliban-led insurgents and Al-Qa’ida operatives
engage in continuing efforts to overthrow the government and intimidate the population
through terrorism. (HE II at 1) Moreover, the government itself has engaged in human
rights violations such as extrajudicial killings, torture, violence against women and
religious minorities, and the use of child soldiers in armed conflict. (Id.) No part of
Afghanistan is safe from terrorism. (HE III at 2) 
 
Afghanistan is plagued by rampant corruption which retards economic growth and
undermines the confidence of its citizens. (HE IV at 17) Because of limited infrastructure
and development, drug lords operate through parts of the country with impunity. (Id. at
15) 
Pakistan is a parliamentary federal republic. (HE IX at 1) Although it is ostensibly
a U.S. ally in the fight against terrorism, several terrorist groups including Al-Qa’ida
continue to operate in parts of Pakistan with impunity, and insurgents use Pakistan’s
northwest frontier province to organize, train, and regroup. (HE XIII at 3) Generally,
Pakistan has aggressively confronted terrorists it considers inimical to its interests, but
has been lackadaisical in confronting terrorists whose operations are focused upon
Afghanistan or India. (HE XII at 19)
The human rights situation in Pakistan is poor. (HE XI at 1) The Pakistani
government maintains several domestic intelligence services that monitor politicians,
political activists, and the media. (Id. at 14)
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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.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied together with the factors
listed in the adjudicative process. 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.” 
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 for obtaining a favorable security
decision.
Analysis
Guideline B, Foreign Influence
Under this 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 the U.S. interests, or is vulnerable to pressure or coercion by any foreign interest” (AG
¶ 6). Moreover, “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” (Id.).
Decades of war, brutality, and theocratic rule rendered Afghanistan a failed state.
As such, it became a safe haven for Al-Qa’eda, who planned the 9/11 attacks from
operational bases in Afghanistan. Although U.S. forces ousted the terrorist-enabling
government, and largely routed the Afghani terrorist network, elements of the ousted
government and terrorists continue to wage guerilla warfare against U.S. forces.
ISCR Case No. 07-0034 at 2 (App. Bd. Feb. 5, 2008)1
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Many of the ousted Afghani extremists are fighting the coalition forces from safe
havens across the border in Pakistan with the help of sympathizers, some of whom
themselves have become active participants in the insurgency. Although Pakistan is a
U.S. ally, it has only marginal control over the provinces that border Afghanistan, and
questions abound about its security services’ commitment to the war against terrorism,
or whether they provide clandestine support to the terrorists. Consequently, Applicant’s
relatives living in Pakistan generate a security concern under 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 county if that contact creates a heightened risk of
foreign exploitation, inducement, manipulation, pressure, or coercion.”
Applicant only talks to his in-laws living in Pakistan twice per year. He has not
seen his children living in Pakistan in more than 11 years. Applicant has lived in the
United States for more than 20 years. He is a homeowner. One of his sons is currently
serving in the U.S. Marine Corps, and a son-in-law is working in Afghanistan as a
translator. Most important, Applicant has “a proven record of action in defense of the
U.S.,”  as he risked his life under combat conditions to assist a special operations team1
in Afghanistan. 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;” and 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,” apply.
In applying AG ¶ 8(c), I was concerned with Applicant’s conflicting statements
regarding his contact with his children living in Pakistan. However, regardless of whether
he is estranged from these children or whether he talks to them once per month, it is
uncontroverted that he has not seen them in more than 11 years, and did not visit them
even though he was relatively close during his time in Afghanistan as a translator.
Moreover, the negative security ramifications of Applicant’s contradictory statements
regarding contact with his children living in Pakistan are outweighed by his service to
Operation Enduring Freedom as a translator in the field. 
There is no evidence that Afghanistan seeks to project power through the
intimidation or coercion of its citizens living in other countries. Consequently, the fact
Applicant has a brother who is a citizen of Afghanistan living in Canada does not raise a
security concern. Assuming that it did create a security risk, it would be mitigated by AG
¶ 8(c), because Applicant has no relationship with his brother.
 
Whole-Person Concept
Under the whole-person concept, the administrative judge should consider the
nine adjudicative process factors listed at AG ¶ 2(a): 
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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 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.
I considered the whole-person concept in my foreign influence analysis when I
concluded that Applicant’s character, as demonstrated by his exceptional contribution as
a translator to a special operations team in Afghanistan, and his ties to the United States
outweigh any vulnerability to coercion generated by relatives living in Pakistan. Applicant
has  mitigated the foreign influence security concern.
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: FOR APPLICANT
Subparagraphs 1.a - 1.e: 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.
                                             
MARC E. CURRY
Administrative Judge