1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01434 ) ) Applicant for Security Clearance ) Appearances For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Cheryl Van Ackeren, Esq. ______________ Decision ______________ WHITE, David M., Administrative Judge: Applicant failed to mitigate the security concerns arising from his continuing family connections in Iraq, and threats he and they received while he was working with U.S. forces there. Based upon a review of the record as a whole, national security eligibility for access to classified information is denied. History of Case On February 26, 2015, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP). On September 12, 2016, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B: Foreign Influence. The action was taken under Executive Order (EO) 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 effective within the DoD after September 1, 2006. 2 Applicant answered the SOR in writing on October 9, 2016 (Answer), and requested a decision based on the administrative (written) record without a hearing, because he was working overseas. He subsequently came back to the United States on leave, and requested a hearing before an administrative judge. (Answer; Tr. 18-19.) The Defense Office of Hearings and Appeals (DOHA) assigned the case to me on March 20, 2017. DOHA issued a Notice of Hearing on March 22, 2017, setting the hearing for March 31, 2017. Applicant acknowledged that he had sufficient time to prepare for the hearing, and waived the 15-day notice requirement of the Directive. (Tr. 14-15.) On that date, Department Counsel offered Government Exhibits (GE) 1 through 4 into evidence. Applicant testified and offered Exhibits (AE) A through E into evidence. Two witnesses also testified for Applicant. All exhibits were admitted without objection. I also took administrative notice of the facts concerning Iraq, set forth in the Government’s Request for Administrative Notice, which was marked Hearing Exhibit (HE) II and included in the record. I granted Applicant’s request to leave the record open until April 14, 2017, to permit possible submission of additional evidence, but none was proffered. DOHA received the hearing transcript (Tr.) on April 10, 2017. The SOR in this case was issued under the adjudicative guidelines that came into effect within the DoD on September 1, 2006. Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines, implemented new adjudicative guidelines that came into effect on June 8, 2017. All national security eligibility determinations issued on or after June 8, 2017, are to be decided using the new National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), as promulgated in Appendix A of SEAD 4. I considered the previous adjudicative guidelines, as well as the new AG, in adjudicating Applicant’s national security eligibility. This decision is issued pursuant to, and cites, the new AG, but my decision would be the same under either set of guidelines. Findings of Fact Applicant is employed as a linguist by a U.S. defense contractor, and is applying for a security clearance in connection with that work. He admitted each of the allegations in SOR ¶¶ 1.a through 1.d, concerning his numerous family members in Iraq and the threats to him and his family that caused him to move to the United States in 2008 with a special immigrant visa. (Answer.) During the hearing, he testified that he and his family were threatened due to his work as a translator with the U.S. military in Iraq. (Tr. 62-63, 75-76, 99-101.) Applicant’s admissions are incorporated in the findings below. Applicant is 36 years old. He was born in Iraq. He attended high school and college there, earning a bachelor’s degree in mechanical engineering in 2006. He never served in the Iraqi army, but from April 2003 to February 2008, Applicant worked as a local-hire linguist supporting U.S. military operations in Iraq. He and his then-Iraqi wife married in 2006. Due to threats against Applicant and his family, he applied for and was granted refugee status for himself and his wife under the Special Immigrant Visa 3 program for Iraqi and Afghan translators/interpreters. They entered the United States, through Jordan, in March 2008. They became naturalized U.S. citizens in 2013, and renounced Iraqi citizenship. Their three children were born in the United States in 2008, 2011, and 2013. (GE 1; GE 3; GE 4; Answer; Tr. 57-59, 75-76, 99-101.) Applicant was hired to work as a contract linguist supporting U.S. forces deployed in Iraq from September 2008 until January 2011, at which time he returned to the United States for a scheduled two-week leave period. While here, he underwent medical treatment that delayed his ability to return to Iraq and his employment was formally terminated in April 2011. He was unemployed until December 2011, and then self-employed until February 2015 when he was hired by his current employer. (GE 1; GE 3; GE 4; Tr. 57.) Both of Applicant’s parents, four of his siblings, his mother-in-law, and a number of extended family members are citizens and residents of Iraq. He has one relative, a brother, who resides in the United States. Two of his brothers-in-law, his now-deceased father-in-law, one of his brothers, and his father all performed short periods of compulsory service in the Iraqi army. His father was a school teacher, and has received a pension from the Iraqi Ministry of Education since he retired. One of his sisters is also a teacher, but no other family members work for the Iraqi government. Applicant last visited his parents and siblings in 2008, but they maintain regular contact on a monthly or more frequent basis, as do his wife and her family members. Applicant’s family owns property in Iraq, but he and his wife do not. They recently purchased a home in the United States, and all of his financial resources are here. (Answer; GE 1; GE3; GE 4; Tr. 73-74, 83-84, 96-99.) Applicant submitted numerous recommendation letters and certificates of appreciation, attesting to his capabilities and contributions as an interpreter and translator. Several officers with whom he has served stated that Applicant’s language skills, and his knowledge of Iraq and its culture, were an invaluable asset to their mission accomplishment. These officers, as well as a fellow linguist, consider him to be extremely responsible and trustworthy. (AE B; AE C; AE E; Tr. 44-54, 85-95.) Iraq I have taken administrative notice of facts contained in U.S. Government pronouncements concerning the state of Iraq, as outlined in HE II, including the following: Iraq faces many challenges fueled by sectarian and ethnic divisions. Numerous terrorist groups are increasingly active throughout Iraq. The Islamic State of Iraq and the Levant (ISIL or Islamic State) control some of the country’s territory. Threats of kidnapping and violence are high, and the Department of State warns U.S. citizens that all travel to Iraq should be avoided. Additionally, human-rights related problems including disappearances, torture, denial of fair public trial, and limits on freedom of speech and expression have been noted. (HE II.) 4 Policies When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. 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. 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 national security eligibility 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14 requires the Government to present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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 national security eligibility 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 national security eligibility. 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 or sensitive 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 Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.) 5 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 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 includes several conditions that could raise security concerns under AG ¶ 7. Three 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; (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; and (e) shared 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. The 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, that 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). Applicant has ongoing, close, and commendable familial connections with his mother, father, four siblings, and other extended family members, who are residents and citizens of Iraq. His in-laws are also citizens and residents of Iraq, and his wife 6 maintains regular family connections with them. These relationships create a heightened risk of foreign pressure or attempted exploitation because terrorists and insurgents in Iraq have already threatened Applicant and his family, and may seek intelligence or engage in behaviors that are hostile to the United States’ interests. Applicant’s relationship with his relatives also creates a potential conflict of interest between Applicant’s obligation to protect sensitive information or technology and his desire to help family members living in Iraq. The evidence is sufficient to raise these disqualifying conditions. After the Government produced substantial evidence of those disqualifying conditions, the burden shifted to Applicant to rebut them or otherwise prove mitigation. Three mitigating conditions under AG ¶ 8 are potentially applicable to the disqualifying security concerns based on the facts: (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; (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; 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. Applicant and his wife have ongoing and regular family relationships with their parents, siblings, and extended family members, all but one of whom are lifelong residents and citizens of Iraq. Without disclosing unnecessary details, Applicant and his family have been threatened in the past due to his activities supporting U.S. interests, and he left the country as a refugee in 2008 with his wife as a result of such threats. Although Applicant provided brave and honorable support for U.S. operations in Iraq between 2003 and 2011, and again from 2015 to present, he has done so under conditions that place his family members under continuing risk. He is a loyal and dedicated U.S. citizen, but the heightened risk and potential for conflict of interest situations created by his family circumstances remain insufficiently mitigated under any of these conditions. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the United States.” Applicant has established some 7 connections to the United States. In 2008, he immigrated to the United States from Iraq, and he became a U.S. citizen in 2013. His immediate family members are citizens and residents of the United States. His financial accounts, as well as his newly purchased home, are located in the United States. Those facts demonstrate some deep connections to the United States; however, Applicant’s frequent and long deployments in Iraq, after becoming a U.S. citizen, also demonstrate his longstanding commitments to Iraq, the place of his birth and upbringing. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s national security eligibility 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. According to AG ¶ 2(c), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the applicable guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. The Guideline B security concerns do not arise from any questionable conduct by Applicant, but rather circumstances that are normal and commendable results of his family situation. First, there are significant risks of terrorism and various human rights abuses in Iraq, as personally experienced by Applicant and his family. More importantly for security purposes, terrorists in Iraq are hostile to the United States and actively seek classified information. Terrorists, and even allied actors, could attempt to use Applicant’s family to obtain such information. Second, Applicant had numerous connections to Iraq before he immigrated to the United States in 2008, and has spent substantial periods in Iraq since then. Third, he and his wife maintain close relations and regular contact with their family members in Iraq. There is mitigating evidence weighing in favor of granting Applicant a security clearance. He is a mature person, who has lived in the United States for nine years, at least part of the time, and has been a naturalized citizen since 2013. His spouse is also now a U.S. citizen, as are his three children. In his recent employment, and from 2003 to 2011, he provided vital and direct support to the U.S. armed forces as a linguist. There is no evidence that he has ever taken any action that could cause potential harm 8 to the United States. He takes his loyalty to the United States seriously. His former supervisors assess him as loyal, trustworthy, and responsible. There is no derogatory information about him in the record. However, after weighing the disqualifying and mitigating conditions, and all pertinent facts and circumstances in the context of the whole-person, I conclude Applicant failed to mitigate the significant security concerns pertaining to foreign influence. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. Any doubt concerning personnel being considered for national security eligibility must be resolved in favor of the national security. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline B: AGAINST APPLICANT Subparagraphs 1.a through 1.d: Against Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance. National security eligibility for access to classified information is denied. DAVID M. WHITE Administrative Judge