DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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--------------------------------- )      ISCR Case No. 12-00913
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Joseph Testan, Attorney At Law
February 11, 2013
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
           Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on August 25, 2009 and October 3, 2011.  (Government Exhibits 1 and 2.)  On
a date uncertain, the Department  of Defense (DoD) issued a Statement of Reasons
(SOR) detailing the security concerns under Guideline B 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 adjudicative guidelines (AG) effective within the
Department of Defense after September 1, 2006. 
 
The Applicant answered the SOR in writing through counsel on September 6,
2012, and requested a hearing before an Administrative Judge.  DOHA received the
request on November 28, 2012, and the case was assigned to the undersigned
Administrative Judge that same day.  DOHA issued a notice of hearing on November
28, 2012, scheduling the hearing for December 5, 2012.  Due to an unexpected illness,
the Administrative Judge cancelled the hearing.  On December 18, 2012, the hearing
was rescheduled for December 26, 2012.  At the hearing the Government presented
four exhibits, referred to as Government Exhibits 1 though 4, which were admitted
without objection.  The Applicant presented seven exhibits, referred to as Applicant’s
exhibits A through G, which were admitted without objection.  He also testified on his
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own behalf.  DOHA received the transcript of the hearing (TR) on January 4, 2013.
Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to
sensitive information is granted.  
REQUEST FOR ADMINISTRATIVE NOTICE
Department Counsel requested that I take administrative notice of certain facts
concerning the current political conditions in Afghanistan.  (Tr. p. 29.)  Applicant had no
objection.  (Tr. p. 29.)  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. 
FINDING OF FACTS
The Applicant is 45 years old and married with two children.  He is employed with
a defense contractor as a Linguist, and seeks a security clearance in connection with
his employment.
The Government opposes the Applicant's request for a security clearance, on the
basis of allegations set forth in the Statement of Reasons (SOR).  The following findings
of fact are entered as to each paragraph and guideline in the SOR:
Paragraph 1 (Guideline B - Foreign Influence).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he has foreign contacts
that could create the potential for foreign influence, which could result in the
compromise of classified information.  The Applicant admits in their entirety the
allegations set forth under this guideline, except 1(b), wherein he admits the allegation
in part and denies it in part.
The Applicant was born and raised in Kabul, Afghanistan.  In 1989, at the age of
twenty-one, during the civil war in Afghanistan, the Applicant, who was entirely against
the Afghan political regime, left the country and moved to Pakistan.  He found Pakistan
to be too religious for him, and in June 1990, he was smuggled into the United States.
He was taken to the immigration detention center where he requested political asylum
that was granted.  It was at that point that the Applicant decided to make the United
States his permanent home.  In October 1996, he became a naturalized citizen of the
United States.  In 1998, he married a woman he met in Pakistan through an arranged
marriage.  His wife is now a naturalized American citizen and they have two native born
American children.    
From January 2007 to May 2012, the Applicant worked as a linquist for the
United States Government.  (Applicant’s Exhibit G.)  Given the nature of the work it was
required that he travel to Afghanistan for extended periods and then returned to the
United States for brief periods in order to visit his family.  This work pattern continued
until his security clearance became an issue in May 2012.  During the Applicant’s
periodic work in Afghanistan, the Applicant exhibited an exemplary work record and was
never cited for a security clearance violation.  (Tr. p. 44.)
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The Applicant has received a number of Certificates of Appreciation for his work
in Afghanistan.  (Applicant’s Exhibit E.)  Letters of recommendation from the Applicant’s
supervisor, professional colleagues, and work associates, indicate that the Applicant is
considered to be competent, reliable, dedicated and trustworthy.  He is described as an
individual with the highest standards of honesty and integrity despite the numerous
threats to his personal safety.  He has excellent communication skills regardless of the
economic level of the individual he is talking to.  He is said to be an extremely
hardworking top-performing linguist.  He has consistently received unsolicited praise for
his work from the client, commending him for his outstanding level of service and
professionalism.  The Applicant has made great sacrifices to benefit the United States
Government against foreign and domestic threats throughout the years.  (Applicant’s
Exhibit A.)
The Applicant has casual and infrequent contact with a few relatives in
Afghanistan.  He has a sister who is a resident and citizen of Afghanistan.  She is
significantly older than the Applicant and he contacts her only for religious ceremonies,
about two to three times a year.  (Tr. p. 52.)  The Applicant’s father is a citizen of
Germany, and he resides in Germany.  (Applicant’s Exhibits A and B.)  His father left
Afghanistan in 1992, and he has never returned.  His father owns an apartment in
Afghanistan that the Applicant’ s sister resides in.  The Applicant’s father-in-law and
mother-in-law are citizens and residents of Afghanistan.  He speaks to his mother-in-law
in Afghanistan about once a year or once every two years.  He explained that his father-
in-law has lost his vision and is in his late 80's or early 90's.  None of his relatives in
Afghanistan know what the Applicant does for a living.  (Tr. p. 54.)  
The Applicant also has two brothers who are citizens and residents of Germany.
He has four living sisters and one that is deceased.  Two of his sisters live in Germany
and are German citizens.  One of sisters lives in Sweden and is a Swedish citizen.  The
fourth, as stated, lives in Afghanistan.
The Applicant, his wife, and their children are American citizens who have fully
adopted the American lifestyle and intend on staying in the United States for the rest of
their lives.  The Applicant has no assets of any kind in Afghanistan and provides no
financial support to anyone there.  The Applicant  owns a house in the United States
that he purchased in December 2009, and he has both a checking and savings account
in the United States.  (Applicant’s Exhibit C.)  The Applicant testified that in the event of
a conflict between his family in the United States and his relatives in Afghanistan, he
would without question resolve the matter in favor of his family in the United States.  He
further stated that in the unlikely event that someone put pressure on him to reveal
classified or sensitive information by threatening his sister or mother-in-law or father-in-
law in Afghanistan, he would report it to his security department and not give any
sensitive information to anyone.  (Tr. pp. 56-57.)  
I have taken official notice of the following facts concerning Afghanistan.
Afghanistan is an Islamic republic.  It has been an independent nation since August 19,
1919, after the British relinquished control.  In December 1979, Soviet forces invaded
and occupied Afghanistan.  Afghan freedom fighters, known as mujaheddin, opposed
the communist regime.  The resistance movement eventually led to the Geneva
Accords, signed by Pakistan, Afghanistan, the United States, and the Soviet Union.  In
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mid-1990's the Taliban rose to power largely due to the anarchy and the divisions of the
country among warlords that arose after the Soviet withdrawal.  The Taliban sought to
impose an extreme interpretation of Islam on the entire country and committed massive
human rights violations.  The Taliban also provided sanctuary to Osama Bin-Laden
since the mid-1990's, to al-Qa’ida generally, and to other terrorist organizations.  After
September 11, 2001 terrorist attacks, U.S. demands that Afghanistan expel Bin-laden
and his followers were rejected by the Taliban.  U.S. forces and a coalition partnership
commenced military operations in October 2001 that forced the Taliban out of power by
November 2001.  
Although there has been some progress since the Taliban was deposed,
Afghanistan still faces many daunting challenges, principally defeating terrorists and
insurgents, recovering from over three decades of civil strife, and rebuilding a shattered
physical, economic and political infrastructure.  Human rights problems included
extrajudicial killings; torture and other abuse; poor prison conditions; widespread official
impunity; ineffective government investigations of local security forces; arbitrary arrest
and detention; judicial corruption; violation of privacy rights, restrictions of freedom of
religion, limits on freedom of movement; violence and societal discrimination against
women; sexual abuse of children; abuses against minorities; trafficking in persons;
abuse of worker rights; and child labor.  Overall, the State Department has declared that
the security threat to all American citizens in Afghanistan remains critical, and travel to
all areas of Afghanistan remains unsafe, due to military combat operations, landmines,
banditry, armed rivalry between political and tribal groups and the possibility of terrorist
attacks.   
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline B (Foreign Influence)
6.  The Concern.  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.
 
Conditions that could raise security concerns:
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
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creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or
coercion.
Conditions that could mitigate security concerns:
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;
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;
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.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19,  in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The voluntariness of participation;
f.  The presence or absence of rehabilitation and other permanent behavior
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
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The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk.  Eligibility for access to classified information is predicated
upon the individual meeting these personnel security guidelines.  The adjudicative
process is the careful weighing of a number of variables known as the whole person
concept.  Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination.” The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in Executive Order 10865, “Any determination under this order
. . . shall be a determination in terms of the national interest and shall in no sense be a
determination as to the loyalty of the Applicant concerned.”
CONCLUSION
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be subject to foreign influence that may lead to poor judgment or
unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s situation and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
This evidence presented indicates that the Applicant has foreign relatives that
may make him unduly subject to undue influence.  Because of the scope and nature of
the Applicant's personal situation, I conclude there is a nexus or connection with his
security clearance eligibility.  Considering all of the evidence, the Applicant has
introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to
overcome the Government's case under Guideline B of the SOR.
Under Foreign Influence, Guideline B, Disqualifying Condition 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.
Mitigating Conditions 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
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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; 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 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 also apply.
The Applicant has lived in the United States almost half of his life, for the past
twenty-two years, and has firmly established his roots here.  He, his wife, and their
children are all citizens of the United States and they plan to remain here.  All of his
immediate family reside in the United States.  All of his assets of any kind are in the
United States.  Clearly, he has no loyalty to Afghanistan.  In fact, the only contact he
has with any relatives in Afghanistan is infrequent, casual and extremely limited.
Furthermore, there is no emotional bond that the Applicant has with his foreign family
members.  He has no close association with anyone in Afghanistan.  Therefore, his
foreign contacts do not pose a security risk.  Under the heightened scrutiny analysis, the
Applicant’s family in Afghanistan does not pose a significant security risk.  Accordingly, I
find for the Applicant under this guideline. 
  
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Under the particular facts of this case, the
totality of the conduct set forth under all of the guidelines viewed as a whole, support a
whole-person assessment of good judgement, trustworthiness, reliability, candor, and a
willingness to comply with rules and regulations, or other characteristics indicating that
the person may properly safeguard classified information.  I have also considered his
favorable evidence, including his awards and favorable letters of recommendation.
Overall the evidence clearly mitigates the negative effects his foreign influence can
have on his ability to safeguard classified information.
On balance, it is concluded that the Applicant has overcome the Government's
case opposing his request for a security clearance.  Accordingly, the evidence supports
a finding for the Applicant as to the factual and conclusionary allegations expressed in
Paragraph 1 of the SOR.    
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: For the Applicant.
        Subpara.  1.a.: For the Applicant.
    Subpara.  1.b.: For the Applicant.    
    Subpara.  1.c.:     For the Applicant.
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CONCLUSION
In light of all the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant or continue a security clearance for the
Applicant.
Darlene Lokey-Anderson
Administrative Judge