1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-11809 ) ) Applicant for Security Clearance ) Appearances For Government, David F. Hayes, Esq. Department Counsel For Applicant: Christopher, Graham, Esq. ______________ Decision ______________ MASON, Paul J., Administrative Judge: Applicant has mitigated the Government’s security concerns under the foreign influence and foreign preference guidelines. Eligibility for access to classified information is granted. Statement of the Case Applicant signed and certified his Electronic Questionnaire for Investigations Processing (e-QIP) on January 5, 2009. On May 24, 2011, he provided a sworn affidavit to an investigator from the Office of Personnel Management (OPM). On March 13, 2013, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing security concerns under foreign influence (Guideline B) and foreign preference (Guideline C). 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 2 Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective in DOD on September 1, 2006. Applicant submitted his notarized answer to the SOR on April 18, 2013. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on June 18, 2013 and the hearing was held as scheduled on July 25, 2013. Two Government exhibits (GE) 1-2 were admitted in evidence without objection. Applicant testified at the hearing. His seven exhibits (AE) A-G were admitted into evidence without objection. DOHA received the transcript on August 6, 2013. The record in this case closed on August 6, 2013. Rulings on Procedure I have taken administrative notice of facts about Jordan which were provided by the Government and Applicant. The Government’s administrative source documents appear in GE 3. Applicant’s administrative source documents appear in AE A1, B1, and E. No objections to the source documents were interposed by either party. Findings of Fact The SOR has 11 allegations under the foreign influence guideline (¶ 1) and two allegations under the foreign preference guideline (¶ 2). Applicant admitted all allegations under ¶ 1 except for ¶¶ 1.a, 1.d, and 1.f. He denied both allegations under ¶ 2. Applicant, 33 years old, was born in Jordan in 1980. His parents, four brothers, and two sisters, are dual citizens of the United States and Jordan. He has one sister who is a citizen and resident of Jordan. He has one sister who is a citizen of Jordan and a resident of Brazil. (AE F) Applicant and five of his eight siblings live in a city in the United States where three of his four brothers manage a gas station and an auto mechanic shop. All brothers in Applicant’s family emigrated to the United States at age 16 or 17, after they had become proficient in the Jordanian language and culture. Occasionally, they observe some of the cultural traditions at their domicile in the United States. Applicant emigrated to the United States in approximately 1997, after completing the 11 grade at a Jordanian high school. In December 2002, he earned a bachelor’sth degree in business administration (BA) from a U.S. university. He was naturalized as a U.S. citizen in June 2003, and received a U.S. passport in January 2006. While he was attending undergraduate school, he worked at his family-owned U.S. hotel business in various positions. In April 2006, he began employment as an equity stock analyst. In May 2008, he received a master’s degree in business administration from a U.S. university. He continued to work as an analyst until the end of 2008. 3 Based on the information he received from a friend’s reference, in December 2008, Applicant was hired into a cultural advisor/linguist position with a defense contractor supporting the U.S. Air Force (USAF) located at a multinational air base in Quatar. His duties included handling customs issues for military personnel and coordinating logistical matters for missions in various middle eastern countries. He traveled to the United States for his OPM interview in May 2011. In September 2012, he lost his linguist job when he did not receive a security clearance within a required period of time. In November 2012, another defense contractor assumed the contract and assigned Applicant to the finance department as a staff analyst at the same air base location. He was deployed overseas the entire year of 2012. He returned again to the U.S. in 2013 for this security clearance hearing and training with his current employer. The foreign influence and foreign preference allegations will be addressed in order they appear in the SOR. ¶ 1.a. Applicant’s parents are dual citizens of the United States and Jordan. They are retired and spend about five months during the winter at their one-story house in Jordan, and the remainder of the year in the United States at the home of one of Applicant’s brothers. Applicant’s father retired from an administrative position in the Jordanian military, but neither parent has any contact with the military or government. Applicant’s parents do not vote in Jordanian elections and do not receive any compensation from the government. When his mother is in Jordan, Applicant speaks to her every day. ¶ 1.b. Applicant’s 44-year-old brother, a dual citizen of the United States and Jordan, owns a U.S. gas station which three of Applicant’s brothers, also dual citizens of the two countries, manage when the 44-year-old brother is in Jordan. The three brothers also own and manage an auto mechanic shop. While Applicant’s 44-year-old brother usually returns to United States every year, he has not been in this country for the past three or four years. He owns a bridal shop in Jordan. ¶ 1.c. Applicant’s 47-year-old sister is a citizen of Jordan living in Brazil. She is married to Applicant’s brother-in-law, a citizen and resident of Brazil identified in ¶ 1.i. She is also a resident alien of the United States who returns to this country every six months so her resident alien status (green card) will not expire. Applicant contacts her every two weeks by Internet media communication. ¶ 1.d. Applicant’s 30-year-old sister is a dual citizen of the United States and Jordan. She has lived in the U.S. since 2001. She attended Applicant’s wedding in Jordan in June 2012. ¶ 1.e. Applicant’s 42-year-old sister, a citizen and resident of Jordan, is married to a citizen and resident of Jordan identified in ¶ 1.j. She used to work in a bank, but now stays at home raising three children. She has an appointment at the U.S. Embassy in October 2013 to begin the emigration process to receive a U.S resident alien card. In four or five years, she will become a U.S. citizen. 4 ¶ 1.f. In June 2012, Applicant married his fiancee, a citizen and resident of Jordan whom he has known since childhood. They share an apartment at Applicant’s duty location in Quatar. She is pregnant with their first child. She intends to emigrate to the United States in June 2014. The record contains no additional information about Applicant’s wife. ¶ 1.g. Applicant’s first sister-in-law is a citizen and resident of Jordan. She is married to Applicant’s 44-year-old brother identified in ¶ 1.b. She travels to the United States every six months to fulfill her residency alien requirements. Applicant has virtually no contact with her. ¶ 1.h. Applicant’s second sister-in-law is a citizen of Jordan residing in the United States. She is married to Applicant’s 47-year-old brother, a dual citizen of the United States and Jordan. ¶ 1.i. Applicant’s first brother-in-law is a citizen and resident of Brazil. He is married to Applicant’s 47-year-old sister identified in ¶ 1.c. He is an electrical engineer. ¶ 1.j. Applicant’s second brother-in-law is a citizen and resident of Jordan. He is married to Applicant’s 42-year-old sister identified in ¶ 1.e. ¶ 1.k. Applicant has two uncles and one aunt who are citizens and residents of Jordan. Applicant knows his aunt travels to the United States every two years, but he is not sure of the travel intervals of his two uncles because he is not in regular contact with them. None of Applicant’s siblings have ever served in the military or worked in the government of Jordan. All of his sisters and sisters-in-law, whether they reside in Jordan or elsewhere, are homemakers. Applicant communicates with his siblings living in Jordan every two or three weeks to two months through Skype (Internet communication), emails, and by telephone. Between Applicant’s immigration to the United States in 1997 and his wedding in June 2012, Applicant traveled to Jordan five or six times to visit his siblings and his future wife, staying mostly for two-week periods. After becoming a U.S. citizen in 2003, he renewed his Jordanian passport in 2006. He used the passport to travel to Jordan in 2006, 2008, and late 2009, until it expired in May or June 2011. He then used his U.S. passport, which he received in January 2006, in June 2011 and June 2012 to travel to Jordan. On June 24, 2013, Applicant’s Jordanian passport was destroyed by his employer’s facility security officer (FSO). (AE A) He has no intention of applying for a new passport whatsoever. He has not taken any other affirmative act to renounce his Jordanian citizenship. He was unaware of the procedures for renouncing citizenship. He does not consider himself a dual citizen and will formally renounce his Jordanian citizenship if required. 5 Applicant has no affiliation with any political parties in the United States or Jordan. He is not aware of any individual or organization raising money for a political group. He has never been associated with any organization capable of accomplishing terrorist acts against any government. Applicant is not aware of any individual or organization raising money for terrorist or criminal activity. He considers himself an American and not a Jordanian. Applicant owns no property or other financial interests in Jordan and owes no money nor does he contribute money to the Jordanian government. He holds a U.S. retirement account through his previous position as a cultural advisor/linguist. He also has U.S. checking and savings accounts. Character Evidence Applicant submitted seven character references from his chain of command during his employment as a cultural advisor/linguist. On April 10, 2013, and June 7, 2013, Colonel B, USAF, submitted two references indicating he was staff director for the host nation organization from May 2011 to May 2012. Applicant served as a cultural advisor and translator. Because of Applicant’s energetic and dedicated efforts on passport and visa issues, missile radar support, and a sizable number of language translation requirements, the unit was able to accomplish its daily objectives. Colonel C, USAF, is the director of the host nation coordination unit. He supervised Applicant for seven months in 2012. On June 16, 2013, Colonel C recommended Applicant for security clearance consideration based on Applicant’s conscientiousness and trustworthiness in the performance of his duties. Colonel D, Commanding Officer (CO), USAF, prepared a reference for Applicant on June 10, 2013. The CO interfaced with Applicant for 18 months between 2008 and September 2012. The CO commended Applicant on his knowledge of Middle Eastern customs, regulations and laws, and his expertise in processing passports, visas, and residential applications. Colonel D vouches for Applicant’s reliability and trustworthiness. Three additional references appear in AE G. On January 31, 2012, Colonel G1, USAF, submitted a reference on Applicant’s behalf. As chief of staff for the entire command, he was impressed with Applicant’s professionalism and commitment to the mission’s success. On January 23, 2011, Colonel G2, USAF, thanked Applicant for his contributions in helping make the change of command successful. On May 13, 2011, Brigadier General G3, USAF, cited Applicant’s outstanding contributions in presenting a food event for multinational partners. 6 Administrative Notice As set forth in AG ¶ 6 of Guideline B, the identity of the country should be considered along with other considerations such as whether the country is known to target U.S citizens to obtain protected information or is associated with terrorism. Jordan is a constitutional monarchy ruled by a king, with the assistance of a Council of Ministers selected by the king, and a bicameral National Assembly. The country has followed a pro-western policy of close relations with the United States for at least six decades, and is a strategic partner in the war on terror. On the other hand, continuing human rights problems persist within the country, including arbitrary arrests, denial of due process through administrative detention, prosecutorial interference with judicial decisions and privacy rights, and restrictions on freedom of speech. The threat of terrorism is high in Jordan. Terrorist groups inside and those with international connections have targeted U.S. Government officials, private citizens, as well as other foreign nationals. Terrorist organizations have targeted the United States for intelligence information through various nefarious means. In October 2012, the Jordanian government arrested 11 Jordanians from Syria before they were able to bomb certain targets in Jordan, including the U.S. Embassy. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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 must be considered in the context of the nine general factors known as the whole-person concept to enable the administrative judge to 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 as to obtaining a favorable security decision. 7 Analysis Foreign Influence AG ¶ 6 sets forth 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 contains three disqualifying conditions that may be pertinent in this case: (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; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and individual’s desire to help a foreign person, group, or country by providing that information; and (d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion. Applicant’s parents (¶ 1.a), Applicant and all brothers, including his 44 year-old brother (¶ 1.b), and his 30 year-old sister (¶ 1.d), are dual citizens of the United States and Jordan. His parents are retired. They spend about half a year in Jordan in their one- story house which they own. His 44-year-old brother owns a U.S. business that is managed by three of Applicant’s other brothers. His 30-year old sister has not returned to Jordan since 2001. Applicant’s second sister-in-law (¶ 1.h) is a citizen of Jordan residing in the United States. His 44-year-old sister (¶ 1.c) is a citizen of Jordan residing in Brazil. His second brother-in-law (¶ 1.i) is married to his 30-year-old sister and is a citizen and resident of Brazil. 8 Applicant’s 42-year-old sister (¶ 1.e), his first sister-in-law (¶ 1.g), his second brother-in-law (¶ 1.j), his two uncles and one aunt (¶ 1.k), are citizens and residents of Jordan. His wife (¶ 1.f), a citizen of Jordan, resides in Quatar with Applicant. Applicant’s ties to his parents, siblings, and other relatives in Jordan, create a potential for a heightened risk of foreign influence that could place Applicant in a position of having to choose between assisting his foreign relatives or U.S. interests. The presence of these family members and in-laws in Jordan raises a potential conflict between the interests of his family members and in-laws and the paramount interests of the United States. AG ¶¶ 7(a) and 7(b) apply. AG ¶ 7(d) applies to Applicant’s wife who is sharing an apartment with Applicant at his duty location in Quatar. The burden shifts to Applicant to present evidence under AG ¶ 8 that demonstrates he is unlikely to be placed in a position of having to choose between his family members and U.S. interests. The pertinent mitigating conditions are: (a) 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 position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.; (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; and (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. The type of government in the foreign country or territory, the government’s relationship to the United States, and the government’s record for protecting human rights, are relevant concerns in evaluating whether an applicant’s family members may be subject to government coercion. The risk of coercion is greater when the foreign government has an authoritarian government, or the governing authority is known to be associated with human rights abuses or terrorism. None of the Applicant’s siblings or his wife are connected to the Jordanian military or government. Though the physical presence of family members identified in¶¶ 1. e, 1.f, 1.g, 1.j, and 1.k, in Jordan raise a potential heightened risk of foreign influence and conflict of interest, Jordan’s close relationship with the United States over the last six decades reduces the risk significantly. Jordan has been an active partner with the United States in the war on terror. AG ¶ 8(a) applies in part. 9 Applicant immigrated to the United States in 1997 and became a naturalized citizen in June 2003. He held several positions in his family owned hotel business while attending undergraduate school. He was employed as a equity stock analyst while attending graduate school. There is no evidence that Applicant has any connections or contact with any other individuals in Jordan other than his immediate family members and identified in-laws. He views himself as an American. AG ¶ 8(b) applies in part. When communication with foreign citizens is casual and infrequent, the risk of foreign influence is reduced. Applicant maintains regular contact with his wife and mother. He has occasional contact with his other family members. He traveled to Jordan five or six times since immigrating to the United States in 1997. The familial contacts and frequency of Applicant’s overall communication precludes the application of AG ¶ 8(c). Foreign Preference AG ¶ 9 sets forth the security concern of the foreign preference guideline: 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. AG ¶ 10 contains one disqualifying condition that may be pertinent in this case: (a) exercise of any right, privilege, or obligation or 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 passport. Applicant was born in Jordan. He emigrated to the United States in 1997 and became a naturalized U.S. citizen in June 2003. He renewed his Jordanian passport in 2006, and used the passport to enter Jordan after becoming a U.S. citizen. AG ¶ 10(a)(1) applies. The pertinent mitigating conditions are: (a) dual citizenship is based solely on parents’ citizenship or birth in a foreign country: (b) the individual has expressed a willingness to renounce dual citizenship; (c) exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor; and 10 (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. AG ¶¶ 11(a) and 11 (c) do not apply because Applicant renewed and used his Jordanian passport after becoming a U.S. citizen. AG ¶ 11(b) does not apply because Applicant has taken no affirmative action to renounce his Jordanian citizenship, although he testified he would renounce if required. AG ¶ 11(e) applies because Applicant allowed his Jordanian passport to expire in 2011, and took affirmative action on June 24, 2013 to have the FSO destroy the expired passport. Whole-Person Concept I have evaluated the evidence under the disqualifying and mitigating conditions of the foreign influence and foreign preference guidelines. I have also weighed this case within the context of the nine general factors of the whole-person concept. Those factors, set forth in AG ¶ 2(a) are: (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. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based on careful consideration of the specific guidelines and nine factors under the whole-person concept. Weighing against Applicant’s security clearance application in the whole-person analysis is the risk of terrorism and human rights abuses in Jordan, and sharing living quarters with his wife, a citizen of Jordan and resident of Quatar. Insurgents, or criminals could potentially reach Applicant through coercive or non-coercive tactics applied against his wife and other family members. Furthermore, Applicant demonstrated a preference for Jordan by renewing and using Jordanian passport after becoming a U.S. citizen in June 2003. There is sufficient mitigating evidence to support Applicant’s security clearance application. His expired Jordanian passport was destroyed in June 2013, and he does not intend to renew it. He testified credibly at the hearing. He has lived in United States since 1997, and has been a naturalized citizen since 2003. A testament to his maturity is the fact that he obtained his undergraduate and graduate degrees in the United States while working full-time at his family’s hotel and as a stock analyst. Additional 11 evidence of Applicant’s maturation and sound judgment has been his high quality job performance between December 2008 and September 2012, when he served the USAF as a cultural advisor and linguist. Seven members of his command praised Applicant’s trustworthiness, reliability, and professionalism in executing his employment responsibilities. He has no financial or property interests in the Jordan, and has no political affiliation to the country. His bank accounts and other funds are in the United States. Considering all the evidence under the disqualifying and mitigating conditions in the context of the whole-person concept, Applicant has mitigated security concerns associated with foreign influence and foreign preference. 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 Influence, Guideline B): FOR APPLICANT Subparagraphs 1.a-1.k: For Applicant Paragraph 2 (Foreign Preference, Guideline C) FOR APPLICANT Subparagraphs 2.a, 2.b: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. Paul J. Mason Administrative Judge