1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 15-04750 ) ) Applicant for Security Clearance ) Appearances For Government: Jeff Nagel, Esq., Department Counsel For Applicant: Pro se July 17, 2017 ______________ Decision ______________ CEFOLA, Richard A., Administrative Judge: Statement of the Case On February 29, 2016, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline B.1 The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance. Applicant answered the SOR, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on December 1, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 6, 2016, scheduling the hearing for January 25, 2017. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 4, which were admitted 1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006. 2 without objection. Applicant testified on his own behalf. Applicant presented two packets of documents, which I marked Applicant’s Exhibits (AppXs) A and B, and admitted without objection. In light of repeated requests made by Applicant, the record was left open until April 24, 2017, for receipt of additional documentation. Pursuant to this request, AppXs C~F were admitted without objection. DOHA received the transcript of the hearing (TR) on February 3, 2017. Procedural Rulings At the hearing, the Government requested I take administrative notice of certain facts relating to Afghanistan. Department Counsel provided a five-page summary of the facts, supported by six Government documents pertaining to Afghanistan, identified as GX 4. The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact. Findings of Fact Applicant admitted to the allegations in SOR ¶¶ 1.e., 1.f., and 1.h. He denied SOR allegations ¶¶ 1.a.~1.d., and 1.g. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 28-year-old employee of a defense contractor. He was born in Afghanistan, immigrated to the United States in 2009, and has been a U.S., citizen since 2014. (TR at page 17 line 19 to page 25 line 16.) He has been employed with the defense contractor as an interpreter since 2009, much of that time working with U.S. forces on combat patrols. (Id.) He is married and his spouse has been approved for immigration to the United States, as will be discussed in conjunction with ¶¶ 1.e. and 1.g., below. Guideline B – Foreign Influence 1.a. Applicant’s 44-year-old mother is a citizen and, at present, a resident of Afghanistan. (TR at page 25 line 1 to page 29 line 19, and at page 33 lines 17~24.) She is a “housewife,” has been granted a visa to immigrate to the United States, and has no knowledge that Applicant works as an interpreter. (Id., TR at page 47 lines 4~21, and AppX F at page 2.) Her immigration status is evidenced by a photo copy of his mother’s visa. (AppX F at page 2.) 1.b. Applicant’s 51-year-old father is a citizen of Afghanistan, but resides in the United States. (TR at page 29 line 20 to page 32 line 14, and AppX A at page 2.) He is “a semi-truck driver,” as evidenced by a photo copy of his “Commercial Driver License,” and his “Permanent Resident” status is evidence by a photo copy of his U.S. Government identification card. (AppX A at page 2.) 3 1.c. Applicant has four Afghan sisters, ages 25, 23, 20, and 12. (TR at page 32 line 15 to page 35 line 23.) Of the three adult sisters, one lives in Italy, and the other two sisters are housewives, married to doctors, and live in Afghanistan. (Id.) None of Applicant’s sisters have any connection to the Afghan government, and they have no knowledge that Applicant works as an interpreter. (TR at page 32 line 15 to page 35 line 23, and at page 47 lines 4~21.) 1.d. Applicant has three Afghan brothers, ages 16, 14, and 6. (TR at page 36 line 7 to page 37 line 5.) These minor brothers, and his 12 year old sister noted above, are being sponsored for immigrant status to the United States, by Applicant’s permanent- resident father. (Id.) They have no knowledge that Applicant works as an interpreter. (TR at page 47 lines 4~21.) 1.e. and 1.g. Applicant’s Afghan “fiancée” and “friend” are one and the same person. (Tr at page 37 line 25 to page 41 line 6, and at page 43 lines 4~20.) Applicant and his fiancée are now married. His wife has been granted a visa to immigrate to the United States, and has no knowledge that Applicant works as an interpreter. (Id., TR at page 47 lines 4~21, and AppX F at page 1.) Her immigration status is evidenced by a photo copy of his wife’s visa. (AppX F at page 1.) 1.f. Applicant’s friend is a citizen and resident of the United States. (TR at page 41 line 19 to page 43 line 3.) This is evidenced by a photo copy of his U.S. passport. (AppX A at page 2.) 1.h. Applicant admits sending, in the past, $1,000 each month to support his mother and four minor siblings. (TR at page 43 line 24 to page 47 line 3.) Once they immigrate to the United States, he will cease this support. (Id.) Applicant has $50,000 in U.S. savings, and has been approved for a $270,000 loan for a house valued at $300,000. (TR at page 43 line 24 to page 47 line 3, and AppX D at page 5.) The home loan is evidenced by a funding statement from Applicant’s mortgage company. (AppX D at page 5.) Notice I take administrative notice of the following facts regarding Afghanistan: A U.S. State Department Travel Warning vis-à-vis Afghanistan remains in effect. Extremists associated with various Taliban networks and the Islamic State are active throughout the country. As such, the situation in Afghanistan remains precarious. 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. 4 These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines 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), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of 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. 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who applies 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 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. Section 7 of Executive Order (EO) 10865 provides that adverse decisions shall be “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 B, Foreign Influence The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or 5 induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns under AG ¶ 7. Two are potentially applicable in this case: (a) contact, regardless of method, 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; 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 classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology. Applicant’s mother and his wife are still Afghan citizens, and he has six Afghan siblings who still reside in Afghanistan. The evidence is sufficient to raise these disqualifying conditions. AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including: (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 United States; and (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest Applicant’s mother and wife are in route to the United States, pursuant to U.S. immigration visas. His four minor siblings will soon follow, as they are being sponsored by their permanent resident father. The two remaining Afghan sisters are married 6 house wives. Their husbands are doctors, and they have no connection to the Afghan government. 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 all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (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. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Applicant has a distinguished history of working with the U.S. forces in Afghanistan as an interpreter. This is evidenced by a plethora of awards and letters of recommendation from U.S. Armed Forces members who served with Applicant in Afghanistan. (AppXs B and C.). Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Foreign Influence security concerns. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline B: FOR APPLICANT Subparagraphs 1.a.~1.h.: For Applicant 7 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. ________________________ Richard A. Cefola Administrative Judge