1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 15-01329 ) Applicant for Security Clearance ) Appearances For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ DAM, Shari, Administrative Judge: This case involves security concerns raised under Guideline C (Foreign Preference), and Guideline B (Foreign Influence) because of Applicant’s Iranian citizenship, passport, and family ties to Iran. Applicant failed to disclose information related to her family members residing in Iran, raising security concerns under Guideline E (Personal Conduct.) She failed to mitigate the security concerns raised under the foreign preference and foreign influence guidelines. She mitigated those raised under the personal conduct guideline. Eligibility for access to classified information is denied. History of the Case On August 4, 2014, Applicant submitted a security clearance application (SF-86). On October 30, 2015, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR), alleging security concerns under the guidelines for foreign preference, foreign influence, and personal conduct. The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines (AG) effective after September 1, 2006. Applicant answered the SOR in writing on November 25, 2015 (Answer), and requested a hearing before an administrative judge. The Defense Office of Hearings 2 and Appeals (DOHA) assigned the case to me on March 10, 2016, and issued a Notice of Hearing that same day. The hearing convened on April 7, 2016, as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 3 into evidence, which were admitted without objection. Applicant testified and called one witness. She offered Applicant Exhibit (AE) A into evidence, which was admitted without objection. DOHA received the transcript of the hearing (Tr.) on April 14, 2016. Procedural Rulings Department Counsel requested administrative notice (AN) of facts concerning Iran. She provided 13 supporting documents to show detail and context for those facts (HE 1.) Applicant did not object to the request or documents, and Department Counsel’s request was granted. (Tr. 16.) Findings of Fact Applicant admitted the facts alleged in Paragraphs 1 and 2 of the SOR. She denied the allegation contained in Paragraph 3 the SOR. (Answer.) Those admissions are incorporated into these findings. Applicant is 24 years old and single. In 1992 she was born in Iran. She has dual citizenship with the United States and Iran. In 1995 Applicant, her parents, and her brother moved to England. They spent eight years there and in 2003 they returned to Iran. She completed middle school and one year of high school in Iran. In 2007 she and her family moved to the United States. She became a naturalized U.S. citizen in 2008. In June 2014 she graduated from a U.S. university and started a position with a defense contractor in July 2014. She attends graduate school. She received high performance ratings for 2014 and 2015. (Tr. 17-21.) Applicant’s mother, father, and brother were born in Iran. All of them have dual citizenship with the United States. Her father attended college in the United States in the late 1970s. (Tr. 10; GE 1.) Applicant’s parents and brother have resided in the United States since 2007. They work in the United States. Some of her mother’s aunts and uncles are citizens and residents of the United States. (Tr. 22.) Applicant’s maternal grandparents are citizens and residents of Iran. Her paternal grandfather is a citizen and resident of Iran. Her mother’s siblings are resident citizens of Iran. Her father’s siblings are resident citizens of Iran. She has cousins who are resident citizens of Iran. None of her relatives work for the Iranian government. (GE 2.) Applicant said that she has not spoken to her paternal grandfather for two years. The last time she spoke to her maternal grandparents was during the holidays in 2015, when she visited her parents and they spoke to her grandparents by telephone. She said she no longer has ongoing contact with her maternal aunts, uncles, or cousins in Iran unless her parents call them while she is home. She uses Facebook to follow some cousins’ activities. At the time of her interview in September 2014, Applicant stated that she was speaking to her relatives more frequently because she was living at home with 3 her parents. Her maternal grandparents visited her family in the United States in 2013. She maintains contact with one Iranian friend. (Tr. 26-31; GE 2.) Her parents are aware that her employer is sponsoring her for a security clearance, but not her family in Iran. Applicant’s Facebook profile lists her position with a defense contractor. (Tr. 39.) Applicant had an Iranian passport that was issued in June 2007 and expired in June 2012. Applicant used that passport to visit Iran in September 2009, July 2011, and September 2011. She stayed with family members during those visits. (Tr. 24; GE 2.) Her parents renewed that passport for her after it expired, and she provided them a photo for the renewal. The new passport was issued in August 2014 and expires in August 2019. She said her parents have possession of the passport. She is willing to surrender it. She does not intend to use it. (Tr. 25-26, 33; GE 2.) During a September 2014 interview with a government investigator, Applicant said that she maintained her Iranian passport so she could visit her family in Iran because Iran does not honor U.S. passports. She told the investigator that she is willing to relinquish it and her Iranian citizenship. (GE 2.) When she completed the August 2014 SF-86, Applicant did not disclose in Section 19 her foreign contacts or relatives in Iran, viz., her grandparents, aunts, uncles, cousins, or friends. During her September 2014 interview, she stated that she did not disclose those people because she misread the question and thought she did not need to list them because they were not affiliated with a foreign government. (GE 2.) She testified that she misunderstood the question or definition of a foreign contact. She thought a foreign contact meant someone associated with the Iranian government. (Tr. 28-29.) She denied that she deliberately attempted to mislead the government and said it was a mistake due to “misreading” the question. (Answer.) Applicant submitted 12 letters of recommendation from supervisors, work colleagues, and academic references. All of them attest to her trustworthiness, character, and achievements. Several authors strongly assert that she has the ethics and integrity to hold a security clearance. (AE A.) Applicant’s boyfriend testified. He has known her for two years. He said she is an honest person and successful employee. (Tr. 37-38.) Iran Iran is a theocratic Islamic republic dominated by Shia Muslim clergy, with ultimate political authority vested in a learned religious scholar. Current U.S. concerns about Iran are based on its efforts to acquire nuclear weapons and other weapons of mass destruction; support for and involvement in international terrorism; support for violent opposition to the Middle East peace process; and its human rights abuses, including summary executions, torture, arbitrary arrest and detention, and restrictions on civil liberties. Iran has provided guidance, training, and weapons to Shia political and militant groups in Iraq. It also provides encouragement, training, funding, and weapons to anti-Israeli terrorist groups in its efforts to undermine the Arab-Israeli peace process. Iran’s intelligence operations against the United States, including cyber-intelligence 4 capabilities, have dramatically increased in depth and complexity during the past few years. Iran has aggressive programs for collecting U.S. dual-use technologies and advanced materials development, especially in the area of a nanotechnology. The current government of Iran is hostile to the United States. The United States has designated Iran as a state sponsor of terrorism. The United States broke diplomatic relations with Iran in April 1980, prohibits most trade with Iran, and uses multilateral sanctions and diplomatic pressure to contain the threats posed by Iran. Iran does not recognize dual citizenship. Iranian-born, naturalized U.S. citizens are considered solely Iranian citizens by the Iranian authorities, and they are subject to surveillance, search, harassment, arrest, and imprisonment while traveling or residing in Iran. 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 to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context 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 the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states that, “[t]he applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person applying for access to classified information seeks to enter into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of 5 the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination under this order adverse to an applicant 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.) Analysis Guideline C, Foreign Preference AG ¶ 9 sets forth the security concern involving foreign preference: 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 describes two conditions that could raise a security concern and may be disqualifying in this case: (a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport; and (b) action to acquire or obtain recognition of a foreign citizenship by an American citizen. Applicant was born in Iran and became a naturalized U.S. citizen in 2008. She holds dual citizenship with both countries. Based on her Iranian citizenship, she was able to renew her Iranian passport in 2014.1 It expires in 2019. Her previous Iranian passport was issued in June 2007 and expired in June 2012. After leaving Iran in 2007 to reside fulltime in the United States, she used her Iranian passport to travel to Iran in September 2009, July 2011, and September 2011. The evidence raises the above disqualifying conditions and shifts the burden to Applicant to rebut, extenuate, or mitigate the security concern. 1 Although Applicant stated that her parents renewed her Iranian passport in 2014, she was an adult at that time and was responsible for the renewal and consequences of possessing said foreign passport in terms of determining eligibility for a security clearance. 6 AG ¶ 11 provides four conditions that could mitigate security concerns arising under this guideline: (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 (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. Applicant’s dual citizenship with Iran is based on her birth there and her parents’ dual citizenship with the country. AG ¶ 11(a) provides some mitigation. Applicant expressed a willingness to renounce her Iranian citizenship, but has not taken official steps to do so. AG ¶ 11(b) provides minimal mitigation. As an adult, she exercised a right of Iranian citizenship by using her foreign passport from 2009 through 2011 to travel to Iran, after becoming a U.S. citizen. She subsequently renewed her Iranian passport in 2014. The evidence does not establish mitigation under AG ¶ 11(c). Although Applicant stated that she would relinquish her Iranian passport in order to obtain a security clearance, she has not destroyed or surrendered it to the appropriate security authority, or otherwise invalidated the passport. AG ¶ 11(e) does not apply. Guideline B, Foreign Influence The security concerns under this guideline are 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. AG ¶ 7 describes two conditions that could raise a security concern and may be disqualifying 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 7 foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;2 and (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 the individual desire to help a foreign person, group, or country by providing information. AG ¶ 7(a) requires substantial evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government. Iran’s hostility to the United States places a “very heavy burden of persuasion” on Applicant to demonstrate that her immediate family members in Iran do not pose a security risk, and she will not be placed in a position to be forced to choose between loyalty to the United States and family members.3 Applicant’s grandparents, aunts, uncles, cousins, and friends are resident citizens of Iran. After becoming a U.S. citizen, Applicant visited her family once in 2009 and twice in 2011. Her family’s presence in that country, which consistently engages in espionage and terrorism against the United States, raises a security concern and generates a heightened risk of exploitation, pressure or coercion of Applicant. Those circumstances could place Applicant in a position of having to choose between her family members residing in Iran and the United States, in the event intelligence operatives learned of Applicant’s position. The Government met its burden of production by raising the above disqualifying conditions and shifts the burden to Applicant to prove mitigation. Three mitigating conditions under AG ¶ 8 are potentially applicable to the security concerns raised under this guideline: (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.; (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 2The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in a foreign country and an applicant has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 03- 02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). 3 See ISCR Case No. 02-13595 at 3 (App. Bd. May 10, 2005). 8 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 (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. AG ¶ 8(a) has limited applicability. From the time Applicant left Iran in 2007 until sometime in 2014 when she moved out of her parents home, Applicant maintained ongoing contact with grandparents, uncles, aunts, cousins, and a friend, who are citizens and residents of Iran. She continues to have some contact with those family members when she visits her parents, who are dual citizens of Iran and the United States. While her connections to family members and a friend in Iran are positive character traits, for security clearance purposes those connections negate the possibility of full mitigation under this mitigating condition. Applicant failed to provide sufficient evidence to fully meet her burden of showing there is “little likelihood that [her relationships with her relatives who are Iranian resident citizens] could create a risk for foreign influence or exploitation.” AG ¶ 8(b) has some application. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant has established some connections to the United States. In 2007 she immigrated to the United States from Iran with her immediate family members and became a U.S. citizen in 2008. She graduated from a U.S. university and obtained a position with a defense contractor in 2014. She has gained the trust and admiration of supervisors, colleagues, and friends since her arrival in the United States in 2007. From 2007 until at least 2014, Applicant maintained ongoing communications with her Iranian family members. Since moving out of her parent’s home in 2014, she asserted that she has less interaction with her family in Iran. The evidence establishes some mitigation under AG ¶ 8(c). Guideline E, Personal Conduct The security concerns pertaining to the personal conduct guideline are set out in AG ¶ 15: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. The Government alleged in SOR ¶ 3.a that Applicant deliberately failed to disclose her Iranian family members and friends in response to a question on her 9 September 2014 SF 86. The Government contended that that failure to disclose constituted a potential disqualifying condition under AG ¶ 16: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities. Applicant acknowledged that she did not disclose information about her extended family residing in Iran, but denied that she intentionally attempted to mislead the Government. When a falsification allegation is controverted or denied, as in this case, the Government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s state of mind at the time the omission occurred.4 Applicant’s assertion that she did not intentionally fail to disclose relatives living in Iran is credible. She said she misread the question and made a mistake. After listening to Applicant’s testimony, observing her demeanor, and reviewing her letters of recommendations about her honesty and character, I find that her explanations for failing to disclose specific information, as alleged in SOR ¶ 3.a, are adequate and credible. SOR ¶ 3.a is found in her favor. As a consequence, a discussion of the applicability of mitigating conditions is not warranted. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and relevant circumstances. 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 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. 4 See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004) (explaining holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)). 10 I considered the potentially disqualifying and mitigating conditions in light of all pertinent facts and circumstances surrounding this case. Applicant was a candid and credible witness. She submitted many impressive recommendations from people who have worked with her or observed her conduct and character for many years. She graduated from a U.S. university and has successfully worked for a defense contractor for two years. Her immediate family resides and works in the United States. These are factors in favor of granting Applicant a security clearance. However, the factors that weigh against granting Applicant a security clearance outweigh the above facts. Applicant spent some of her formative years in Iran, and attended school there. She maintains dual citizenship with Iran, a country that consistently expresses hostility against the United States. She used her Iranian passport to travel to Iran once in 2009 and twice in 2011 because the country does not recognize dual citizenship for a person born in Iran. She renewed her Iranian passport in 2014. While her parents and brother are citizens and residents of the United States, she has many familial connections to Iran, which are not easily mitigated. After weighing the disqualifying and mitigating conditions under the guidelines for foreign preference, foreign influence, and personal conduct, and evaluating the evidence in the context of the whole person, I conclude Applicant mitigated the security concerns raised under the guideline for personal conduct, but not those raised under the guidelines for foreign preference and foreign influence. Accordingly, she failed to carry her burden of showing that it is clearly consistent with the national interest to grant her eligibility for access to classified information. 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 C: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Paragraph 2, Guideline B: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline E: FOR APPLICANT Subparagraph 3.a: For Applicant 11 Conclusion In light of all of the circumstances presented by the record in this case, it is clearly not consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. __________________ Shari Dam Administrative Judge