The Government submitted seven items in support of its case.1
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DEPARTMENT OF DEFENSE
DEFENSE OFFICE OF HEARINGS AND APPEALS
         
            
In the matter of: )
)
)       ISCR Case No. 13-00136
)
)
Applicant for Security Clearance )
Appearances
For Government: Pamela Benson, Esq., Department Counsel
For Applicant: Pro se
______________
Decision
______________
LYNCH, Noreen A., Administrative Judge:
On April 10, 2013, the Department of Defense (DOD) issued a Statement of
Reasons (SOR) detailing the basis for its preliminary decision to deny Applicant a
security clearance, citing 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 adjudicative guidelines (AG) implemented in
September 2006. 
Applicant received the SOR and requested an administrative determination in lieu
of a hearing. Department Counsel submitted a File of Relevant Material (FORM), dated
August 21, 2013. Applicant received the FORM on September 23, 2013.  He submitted1
additional documentation in a timely manner. The case was assigned to me on October
29, 2013. Based on a review of the file, I find Applicant has not mitigated the security
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concerns raised under Guideline B.  Eligibility for access to classified information is
denied.
Procedural and Evidentiary Rulings
The Government, through Department Counsel, requested that I take
administrative notice of certain facts relating to Afghanistan. The request and the
attached documents are included in the record file. 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 factual allegations under
Guideline B in ¶¶ 1.a-1.c, and denied ¶¶ 1.d-1.f.  His admissions are incorporated in my
findings of fact. I make the following findings:
Applicant is 32 years old and was born in Afghanistan. He came to the United
States in 2001, and became a naturalized U.S. citizen in May 2006. In 2006, Applicant
married his wife who was born in Afghanistan. She is now  a naturalized U.S. citizen.  As
a result of the marriage, they have two children, who are United States citizens. 
Applicant is an employee of a defense contractor and is currently deployed to
Afghanistan working with U.S. Armed Forces as a Category II linguist. Applicant’s
security clearance application notes that he applied for a security clearance in February
7, 2012 while working in Afghanistan. (Item 5) 
Applicant’s five brothers, mother-in-law, father-in-law, three brothers-in-law, and
two sisters-in-law are citizens and residents of Afghanistan. The SOR alleges security
concerns based on Applicant’s extended family in Afghanistan.  The SOR further alleges
that Applicant’s three brothers, and one brother-in-law work for the Afghan government
and that his father-in-law is a police officer in Afghanistan.  (Item 1)
Applicant outlined the extent of his contacts with his family in Afghanistan in his
2012 security clearance application. He noted contact with his brothers and brothers and
sisters-in-law once a month by telephone. He also listed monthly phone contact with his
wife’s parents. (Item 6) Applicant disclosed that he sponsored other family members (his
wife, mother-in-law, and his niece’s husband) to become U.S. citizens. He  traveled to
Afghanistan to visit family in 2004, 2006, 2007, and 2011. (Item 5) 
In February 2012, Applicant was interviewed by a DOD investigator. He noted that
he worked as a linguist for private companies from 2003 until 2012. He also revealed
during that interview that his three brothers and one brother-in-law held high positions
within the Afghan government. He stated that he had contact with them on either a
weekly or monthly basis. (Item 6) Applicant also disclosed that he sent money to his
favorite brother who has health problems. He sent about $9,000 in 2010 and has sent
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some money to his other brothers as well. He estimates that he has sent about $17,000
to his brothers since his arrival in the United States. (Item 6)
Applicant considers the United States as his homeland. He is not interested in
living in Afghanistan. He states that the United States gives him everything and in
Afghanistan there are no opportunities. He believes he was lucky to have the opportunity
to come to the United States.  He and his family swore to protect the interests of the
United States when they became U.S. citizens. He explained in a security screening
questionnaire that he has never been threatened and his foreign contacts will not create
a potential conflict. (Item 6)
There is no evidence in the record that Applicant breached any security policies or
procedures while in Afghanistan. Applicant submitted a Certificate of Appreciation for his
work in Afghanistan. He also submitted a letter of recommendation from an intelligence
officer who has known him since 2012. He describes Applicant’s work as superb. He has
lived and worked under the same daily risks and austere conditions as uniformed U.S.
soldiers. Applicant’s personal conduct and work performance exceed  standards. He is a
valued member of the team. (Response to FORM)
In 2013, in response to the FORM, Applicant changed his answers about the
nature and frequency of contacts with his family in Afghanistan. He admits that his
brothers are still in Afghanistan, but he states that since working in Afghanistan, he has
had no contact with them. He also reports that his mother, who lives in the United States,
has told him that they are in the process of coming to the United States. His mother has
started the “paperwork” for two of them to leave Afghanistan for the United States.
As for his mother-in-law and father-in-law, they are also in the process of coming
to the United States. His wife has filed paperwork for them and her brother and sister to
come to the United States. (Response to FORM; Item 4)
Applicant now denies that his brothers are working for the Afghan government. He
states that the last he heard from them they are unemployed and working on their farms.
He also noted that his father-in-law does not work as a police officer any more. He has
now opened a clothing shop. (Response to FORM; Item 4)
Finally, Applicant noted that his brother-in-law who used to work in the Afghan
ministry, is now in the United States, and seeking employment as an interpreter. 
Applicant emphasized that he has not had any foreign contacts since his
deployment to Afghanistan with the U.S. Army. He states that while he used to talk to his
brothers when he was in the United States, he does not now. He noted that his brothers
resigned from their positions within the Government due to a change of leadership in the
Government. He states that he has not told anyone about his work because of the
security risk. He does not have direct contact with his in-laws. (Response to FORM)
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Administrative Notice
I take administrative notice of the following facts about Afghanistan, including the
fact that Afghanistan has been an independent nation since August 19, 1919, after the
British relinquished control. A monarch ruled from 1919 until a military coup in 1973.
Following a Soviet-supported coup in 1978, a Marxist government emerged. 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 an agreement known as the Geneva Accords, signed by
Pakistan, Afghanistan, the United States, and the Soviet Union which ensured Soviet
forces withdrew by February 1989.
The mujaheddin were not a party to the negotiations for the Accords and refused
to accept them. As a result, civil war continued after the Soviet withdrawal. In the mid
1990s, the Taliban rose to power largely due to the anarchy and warlordism 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, as well as Al Qa’ida, and other terrorist
organizations.
After the September 11, 2001 terrorist attacks, demands to 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. A new democratic government took power in 2004. Despite progress
made since the Taliban was deposed, Afghanistan still faces many daunting challenges.
Among these challenges are defeating terrorists and insurgents, recovering from over
three decades of civil strife, and rebuilding a shattered physical, economic, and political
infrastructure.
The Taliban, Al-Qa’ida, other insurgent groups, and anti-Coalition organizations
continue to operate in Afghanistan, resulting in numerous attacks and deaths. Insurgents
have targeted non-governmental organizations (NGOs), Afghan journalists, government
workers, and UN workers. Instability along the Pakistan-Afghan frontier continued to
provide al-Qa’ida with leadership mobility and the ability to conduct training and
operational planning, targeting Western Europe and U.S. interests in particular. Kabul, in
particular, has seen a rise in militant attacks, including rocket attacks, vehicle-borne
improvised explosive devices (IEDs), and suicide bombings.
At this time, the risk of terrorist activities remains extremely high. The country’s
human rights record remains poor and violence is rampant. According to recent reports
from the U.S. Department of State, insurgents continue to plan attacks and kidnappings
of Americans and other Western nationals. Travel warnings are ongoing. Overall, the
State Department has declared that the security threat to all American citizens in
Afghanistan remains critical, as no part of Afghanistan is immune from violence.
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The United States supports the efforts of the Afghan Government to establish a
vibrant civil society, one that emphasizes democratic principles through a rule of law and
creates accountable and transparent forms of government. The United States and its
international partners remain committed to helping Afghans realize their vision for a
country that is stable, democratic, and economically successful, and to an Afghan
Government committed to the protection of women’s rights, human rights, and religious
tolerance.
On May 2, 2012, the United States and Afghanistan signed the Enduring Strategic
Partnership Agreement between the Islamic Republic of Afghanistan and the United
States of America, a 10-year-strategic partnership agreement (SPA) that demonstrates
the United States’ enduring commitment to strengthen Afghanistan’s sovereignty,
stability, and prosperity and continue cooperation to defeat Al-Qaida and its affiliates.
Policies
“[N]o one has a ‘right’ to a security clearance.”  Department of the Navy v. Egan,
484 U.S. 518, 528 (1988).  As Commander in Chief, the President has “the authority to . .
control access to information bearing on national security and to determine whether an
individual is sufficiently trustworthy to occupy a position . . . that will give that person
access to such information.”  Id. at 527.  The President has authorized the Secretary of
Defense or his designee to grant applicants eligibility for access to classified information
“only upon a finding that it is clearly consistent with the national interest to do so.”  Exec.
Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as
amended and modified.  
Eligibility for a security clearance is predicated upon an applicant meeting the
criteria contained in the adjudicative guidelines (AG). These guidelines are not inflexible
rules of law. Instead, recognizing the complexities of human behavior, these guidelines
are applied in conjunction with an evaluation of the whole person. An administrative
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An
administrative judge must consider all available, reliable information about the person,
past and present, favorable and unfavorable.
The Government reposes a high degree of trust and confidence in persons with
access to classified information. This relationship transcends normal duty hours and
endures throughout off-duty hours. Decisions include, by necessity, consideration of the
possible risk an applicant may deliberately or inadvertently fail to protect classified
information. Such decisions entail a certain degree of legally permissible extrapolation of
potential, rather than actual, risk of compromise of classified information.
Clearance decisions must be “in terms of the national interest and shall in no
sense be a determination as to the loyalty of an applicant concerned.”  See Exec. Or.
10865 § 7. Thus, a decision to deny a security clearance is not necessarily a
determination of the loyalty of an applicant.  It is merely an indication the applicant has
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not met the strict guidelines the President and the Secretary of Defense have
established for issuing a clearance
Initially, the Government must establish, by substantial evidence, conditions in the
personal or professional history of the applicant that may disqualify an applicant from
being eligible for access to classified information.  The Government has the burden of
establishing controverted facts alleged in the SOR.  See Egan, 484 U.S. at 531.
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v.
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).  The guidelines
presume a nexus or rational connection between proven conduct under any of the
criteria listed therein and an applicant’s security suitability.  See ISCR Case No. 95-0611
at 2 (App. Bd. May 2, 1996).  
Once the Government establishes a disqualifying condition by substantial
evidence, the burden shifts to an applicant to rebut, explain, extenuate, or mitigate the
facts.  Directive ¶ E3.1.15.  An applicant “has the ultimate burden of demonstrating that it
is clearly consistent with the national interest to grant or continue his security clearance.”
ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).  “[S]ecurity clearance
determinations should err, if they must, on the side of denials.”  Egan, 484 U.S. at 531;
see AG ¶ 2(b).
Analysis
Guideline B (Foreign Influence)
The security concern under Guideline B is set out in AG ¶ 6 as follows: 
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.
A disqualifying condition may be raised by “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(a).  A disqualifying condition
also may be raised by “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 the individual’s desire to help a foreign person,
group, or country by providing that information.” AG ¶ 7(b). Finally, AG ¶(d) “sharing
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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” is a disqualifying condition in this case. 
Applicant admits that his five brothers, and his wife’s parents and siblings are
citizens and residents of Afghanistan. Applicant reported contact with them. He saw
them when he visited Afghanistan in 2004, 2006, 2007, and 2011. In his 2012 screening
interview, he said some of his brothers worked for the Government of Afghanistan.
However, under either disqualifying condition, security concerns could arise in
connection with the potential that hostile forces might seek protected or classified
information from Applicant by threatening harm to his family members in Afghanistan.
Based on this evidence, AG ¶¶ 7(a), (b), and (d) are raised.
Since the Government produced evidence to raise the disqualifying conditions in
AG ¶¶ 7(a) and (b), the burden shifted to Applicant to produce evidence to rebut, explain,
extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of
proving a mitigating condition, and the burden of disproving it never shifts to the
Government.  See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 
 Guideline B is not limited to countries hostile to the United States.  “The United
States has a compelling interest in protecting and safeguarding classified information
from any person, organization, or country that is not authorized to have access to it,
regardless of whether that person, organization, or country has interests inimical to those
of the United States.”  ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 
Furthermore, friendly nations can have profound disagreements with the United
States over matters they view as important to their vital interests or national security.
Finally, we know friendly nations have engaged in espionage against the United States,
especially in the economic, scientific, and technical fields.  See ISCR Case No. 00-0317,
2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002).  Nevertheless, the nature of
a nation’s government, its relationship with the United States, and its human rights
record are relevant in assessing the likelihood that an applicant’s family members are
vulnerable to government coercion. The risk of coercion, persuasion, or duress is
significantly greater if the foreign country has an authoritarian government, a family
member is associated with or dependent upon the government, the country is known to
conduct intelligence operations against the United States, or the foreign country is
associated with a risk of terrorism.
Security concerns under this guideline can be mitigated by showing that “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.”  AG ¶ 8(a). The totality of an applicant’s family ties to a foreign country as well
as each individual family tie must be considered.  ISCR Case No. 01-22693 at 7 (App.
Bd. Sep. 22, 2003). Similarly, AG 8(b) “there is no conflict of interest, either because the
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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” does not apply. 
Applicant has not presented sufficient information to mitigate the security
concerns given his relationships and frequency of contact with his relatives in
Afghanistan. His work as a linguist supporting the U.S. military in Afghanistan is
laudable. The record shows that he is now working in Afghanistan as a linguist and
worked in the United States in a cultural role to help the U.S. military. 
Applicant’s immediate family are citizens and residents of the United States. He
has been in the United States since 2001. He is a naturalized citizen. His children were
born in the United States and reside in the United States. His home is in the United
States.
Applicant’s work as an interpreter and cultural advisor supported the U.S. military
mission in Afghanistan, not the work of those who seek to destroy the growing
democracy in Afghanistan. The new Afghanistan government relies upon the United
States for support, both financially and militarily, as it moves forward with a new form of
government. While Afghanistan’s human rights record under the Taliban was dismal and
serious problems continue, its human rights record is slowly improving. Applicant has
worked as an interpreter with the U.S. military. There is no evidence that Applicant or his
family has been pressured by any organization to provide any type of information,
classified, or otherwise, to the United States. 
In every case where a family member lives overseas, there is a risk of pressure
on this relative and through them upon the holder of a security clearance. Under the
facts of this case, a heightened risk for exploitation, inducement, manipulation, pressure,
or coercion is established. Applicant has ties to the United States and strong ties to his
family in Afghanistan. He wants to help the United States in its role in the redevelopment
of Afghanistan. Applicant has sent significant sums of money to his brother in
Afghanistan.  However, Applicant’s ties with Afghanistan are not minimal. The totality of
the facts raise security concerns.
Applicant’s response to the FORM emphasized that his children were born and
raised in the United States. They are his family. Neither he nor his family are interested
in going back to Afghanistan to live. However, the extent of his current contact with his
extended family in Afghanistan is not clear. He now states that he has no contact since
working in Afghanistan.  He also denies that his brothers now work for the Afghan
Government. His brothers may return to their employment with the Afghan Government
and he may resume his frequent contact with them.  Afghanistan remains dangerous and
unpredictable. Applicant has given conflicting information about the number of contacts
he has with his family. He is silent about the amount of contacts his wife has with her
family. He did not document when various family members are coming to the United
States as sponsored person. Given the information, it is not clear that Applicant can  be
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expected to resolve any potential conflict of interest in favor of the United States.  He has
not  established mitigation of the foreign influence security concerns. 
Whole-Person Concept
Under the whole-person concept, an 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. An 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) 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. 
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 Appeal Board requires the whole-person analysis address “evidence of an
applicant’s personal loyalties; the nature and extent of an applicant’s family ties to the
U.S. relative to his or her ties to a foreign country; his or her social ties within the U.S.;
and, many others raised by the facts of a given case.” ISCR Case No. 04-00540 at 7
(App. Bd. Jan. 5, 2007).
I considered the potentially disqualifying and mitigating conditions in light of all the
facts and circumstances surrounding this case. Certain circumstances weigh against
Applicant in the whole-person analysis. First, Applicant’s extended family members are
citizens and residents of Afghanistan. He reports frequent contact with them. He also
noted that three brothers worked in positions for the Afghan Government. His wife also
has family in Afghanistan. Terrorists or agents of the Taliban could attempt to use
Applicant’s family to obtain information. These connections raise the possibility of foreign
influence. In this case, the foreign connection is substantial. Applicant sends money to
his favorite brother. Applicant started working in Afghanistan in 2012, and asserts that he
no longer has frequent contact with family living in Afghanistan.  Applicant’s spouse and
children are all U.S. citizens and residents in the United States. Applicant supplemented
the record but did not submit sufficient mitigating information. 
A Guideline B decision concerning Afghanistan must take into consideration the
geopolitical situation and dangers there. Afghanistan is a dangerous place because of
the violence from the Taliban and terrorists. The Taliban and terrorists continue to
threaten the Afghan Government, the interests of the United States, U.S. Armed Forces,
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and those who cooperate with and assist the United States. The United States and
Afghanistan are allies in the war on terrorism. The United States is committed to the
establishment of a free and independent Afghan Government. Afghanistan and the
United States have close relationships in diplomacy and trade.
Some mitigating evidence weighs in favor of granting Applicant a security
clearance. He is a naturalized U.S. citizen and has served the U.S. Army as a linguist in
Afghanistan. He has character references. He is a mature person who has lived in the
United States and created a life for himself. He has no desire to live in Afghanistan. He
wants to continue his career serving the Government.
After weighing the disqualifying and mitigating conditions, and all the facts and
circumstances in the context of the whole person, I conclude Applicant has not 
mitigated the security concerns pertaining to foreign influence. The complicated state of
affairs in Afghanistan places a significant burden on Applicant to demonstrate that his
foreign family members do not pose an unacceptable security risk. Applicant has not met
that burden.
Formal Findings
I make the following formal findings for or against Applicant on the allegations set
forth in the SOR, as required by Directive ¶ E3.1.25 of Enclosure 3:
Paragraph 1, Foreign Influence: AGAINST  APPLICANT
Subparagraphs 1.a-1.f: Against Applicant
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.
                                              
Noreen A. Lynch
Administrative Judge