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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
 
 
In the matter of:  ) 
  ) 
            [REDACTED]  ) ISCR Case No. 17-03227 
  ) 
Applicant for Security Clearance  ) 
 
Appearances 
 
For Government:  David Hayes, Esq., Department Counsel  
For Applicant: Pro se 
 
 
 
Decision 
 
 
HESS, Stephanie C., Administrative Judge: 
 
Applicant has mitigated the foreign influence security concerns raised by his 
contacts and prior financial support of a friend in Cuba. Access to classified information 
is granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (e-QIP) on May 19, 2015. On 
October 10, 2017, the Department of Defense (DOD) sent him a Statement of Reasons 
(SOR), alleging security concerns under Guideline B, Foreign Influence. The DOD acted 
under Executive Order (Ex. Or.) 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 June 8, 2017.  
   
Applicant answered the SOR on October 19, 2017, and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on July 17, 2017, 
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and the case was assigned to me on February 9, 2018. On February 14, 2018, the 
Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was 
scheduled for March 8, 2018. I convened the hearing as scheduled. Government Exhibits 
(GX) 1 through 3 were admitted in evidence without objection. At Department Counsel’s 
request, I admitted as Administrative Exhibit (AE) 2, without objection, the Administrative 
Notice memorandum and its supporting documents regarding facts about Cuba. Applicant 
testified and submitted Applicant’s Exhibits (AX) A and B, which were admitted without 
objection. DOHA received the transcript (Tr.) on March 20, 2018. 
 
Findings of Fact 
 
The SOR alleges that Applicant regularly communicates with a citizen and resident 
of Cuba and that he provides $100 in financial support to her approximately every six 
weeks. Applicant admits that he has contact with his friend in Cuba, however he explains 
that the frequency of that contact is changed. He denies currently sending any financial 
support, however he admits that he did provide financial support for a period of time. His 
admissions are incorporated in my findings of fact. 
 
Applicant, 63, is a mechanical engineer employed by a federal contractor since 
September 1977. He was born in Cuba and immigrated with his father to the United States 
in September 1969. Applicant’s mother and sister joined the family in the United States 
in 1974. Applicant has been a naturalized United States citizen since March 1977. He 
received his bachelor’s degree in mechanical engineering in June 1977. He has taken 
graduate courses and owns several patents. Applicant properly disclosed his foreign 
contacts during his background investigation. He is held a security clearance since 1977.  
(GX 1; GX 2; Tr. 26-27.)   
 
Cuba is an authoritarian state governed by the Cuban Communist Party. Travel to 
Cuba from the United States remains restricted and travel for tourist activities is not 
permitted. In 2016, at least 16 U.S. Diplomats were likely the victims of sonic weapons, 
suffering brain damage, hearing loss, and blood disorders. The responsible party and the 
cause of these injuries remains unclear. Cuba has long targeted the United States for 
intensive espionage activities and there have been numerous reported cases of Cuban 
government-sanctioned and supported espionage against the United States. Cuba’s 
human rights record remains poor, with abuses against its citizens including government 
threats, physical assault, intimidation, and interference and monitoring of private 
communications. (AE 2.) 
 
 The Guideline B SOR allegations arise because Applicant has had contact with 
and supplied some financial support to a citizen and resident of Cuba. Specifically, at the 
insistence of his mother, Applicant decided to invest more time practicing his Spanish. He 
went to an online chat room intending to communicate with a Spanish-speaking woman. 
He did not specifically seek a Cuban woman. However, Applicant began communicating 
with a woman in Cuba through the chat room in February 2016. In March 2016, the 
contact changed to email and telephone. Between March 2016 and approximately August 
2017, they communicated, primarily by email, on a near daily basis. (GX 2; Tr. 32-33.) 
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Applicant and his friend communicated well and had a lot in common.  In March 
2016 at Applicant’s suggestion, Applicant’s friend applied for a visa for herself and her 
son to visit Applicant in the United States. Applicant completed the requisite 
documentation necessary for hosting foreign nationals. The visa was denied by the US 
government, citing concerns that Applicant’s friend would remain in the United States. 
Following the denial of the visa, Applicant and his friend continued to communicate. In 
October 2016, Applicant applied for a fiancé visa for his friend. The visa would permit 
Applicant’s friend and son to visit for up to 90 days. Applicant believed that this would 
give him and his friend enough time to decide whether or not they should pursue a 
relationship that led to marriage. US immigration officials contacted Applicant for 
confirmation that he and his friend had previously met in person. Applicant and his friend 
had not met in person and the visa was denied. (Tr. 34-35; GX 2.) 
 
Applicant’s friend was employed as an accountant by the public school system in 
Cuba. Following Applicant’s friends application for a visa to visit the United States, she 
was interviewed by representatives of the Cuban government. Applicant’s friend was 
informed that her behavior was not consistent with the ideology of the Cuban government 
and she was terminated from her job. Between March 2017 and in September 2017, 
Applicant sent his friend $150 a month while she was unemployed. In August 2017, 
Applicant’s friend began working as a hairstylist and Applicant sent her an additional $50 
to purchase her necessary tools of the trade. Applicant has not helped support his friend 
since she returned to work and began earning an income. (AX A.) Applicant and his friend 
communicated by telephone infrequently because of the cost. Their last telephone 
conversation was in November 2017. Applicant maintains sporadic, infrequent contact 
with his friend in Cuba. (Tr. 41-42.) 
  
Applicant did not initially report his communications with his friend in Cuba to his 
facility security officer (FSO) because he did not think it was required. Specifically, 
Applicant thought the contact was not a concern in light of the then-improving relationship 
between the United States and Cuba. However, once he applied for the initial visa in 
March 2016, he reported the contact to his FSO and was told that the contact was not a 
concern. (Tr. 52-54.) Applicant has not disclosed to his friend the nature of his 
employment, nor has she inquired about it. Applicant would consider such an inquiry to 
be a “huge flag.” (Tr. 44.) Applicant has proffered that he will cease all communications 
with his friend if he is required to do so. (Tr. 40-40-41.) 
 
 In 1964, Applicant’s father was sent to a forced labor camp in Cuba until he was 
permitted to emigrate in 1969. Cuba does not recognize Applicant as an American citizen 
and he is unable to travel to Cuba using his U.S. passport. However, Applicant does not 
have any desire to travel to Cuba. All of Applicant’s family and financial interests, including 
the house he purchased in 1988, are in the United States. Applicant considers himself to 
be a loyal American. (Tr. 30-31; Tr. 49-50.) Applicant was sincere and credible during his 
testimony.   
 
 
 
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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 have 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.  
 
Eligibility for a security clearance is predicated upon the applicant’s meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines 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 and 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 that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. Or. 
10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has 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 the 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. 92-1106 at 3, 
1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).  
  
Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
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and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
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 concern is set forth 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 following disqualifying conditions are applicable: AG ¶ 7  
 
AG ¶ 7(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 
 
AG ¶ 7(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. 
 
AG ¶¶ 7(a) requires evidence of a “heightened risk.” The “heightened risk” required 
to raise this disqualifying condition 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 or owning property in a foreign country. The mere possession of 
close contacts in a foreign country is not, as a matter of law, disqualifying under Guideline 
B. However, if an applicant has such a relationship, this factor alone is sufficient to create 
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the potential for foreign influence and could potentially result in the compromise of 
classified information. See Generally ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 
2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001).  
 
The Cuban government is known to commit espionage against the United States 
and to commit human rights violations, including government intervention on personal 
freedoms. Applicant’s friend lost her job following her application for a visa to visit 
Applicant in the United States. Given the potential targeting of Applicant’s friend, 
Applicant’s relationship creates a heightened risk of foreign exploitation and coercion and 
the potential risk for a conflict of interest. AG ¶¶ 7(a) and 7(b) are established. 
 
The following mitigating conditions are potentially applicable:  
 
AG ¶ 8(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;  
 
AG ¶ 8(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 
 
AG ¶ 8(d): the individual has promptly complied with existing agency 
requirements regarding the reporting of contacts, requests, or threats from 
persons, groups, or organizations from a foreign country. 
 
 The evidence in the record mitigates the concerns about Applicant’s contacts with 
his friend in Cuba. Applicant’s friend does not participate in a profession or in activities 
that are likely to place Applicant in a position of having to choose between foreign 
interests and U.S. interests. Applicant has lived in the United States since 1969 and has 
been a naturalized citizen since 1977. All of Applicant’s family members and financial 
interests are in the United States, which he considers to be his home. Applicant’s minimal 
financial support of his friend, which totaled $950, ended in September 2017 and does 
not raise security concerns. Applicant’s current contact with his friend in Cuba is sporadic 
and infrequent. Applicant properly reported his contacts with his friend in Cuba to his FSO 
and was informed that the contact was not a concern. AG ¶¶ 8(a), 8(b), and 8(d) apply. 
 
 
 
 
 
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Whole-Person Concept 
 
  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. In applying 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 relevant 
circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(d).  
 
 I have incorporated my comments under Guideline B in my whole-person analysis. 
Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but I have also 
considered the following: 
  
 Applicant has worked for his current employer and held a security clearance for 
more than 30 years. He is been a naturalized U.S. citizen since 1977 and all his familial 
and financial ties are to the United States. Applicant was sincere and credible during his 
testimony  
 
 After weighing the applicable disqualifying and mitigating conditions under 
Guideline B, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has mitigated the security concerns raised by his foreign contacts. Accordingly, 
I conclude he has carried his burden of showing that it is clearly consistent with the 
national interest to grant him eligibility for access to classified information. 
 
Formal Findings 
 
As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following 
formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline B (Foreign Influence):  FOR APPLICANT 
 
  Subparagraphs 1.a – 1.b:    For Applicant 
  
Conclusion 
 
 I conclude that it is clearly consistent with the national interest to grant Applicant’s 
eligibility for a security clearance. Eligibility for access to classified information is granted. 
 
 
 
Stephanie C. Hess 
Administrative Judge