DATE: January 23, 2004
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SSN: ----------------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
MARTIN H. MOGUL
APPEARANCES
FOR GOVERNMENT
Jennifer I. Campbell, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant, a dual citizen of the United States and Jordan, has failed to fulfill the requirements of the Memorandum from the Assistant Secretary of Defense for Command, Control, Communications and Intelligence, dated August 16, 2000, (Money Memorandum) by not relinquishing his Jordanian passport to the proper Jordanian authorities, despite his indicated desire to return it. None of Applicant's immediate family members are in a position to be exploited in a way that could force Applicant to choose between loyalty to these family members and his loyalty to the United States. Mitigation has not been shown. Clearance is denied.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended by Executive Orders 10909, 11328 and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4), issued a Statement of Reasons (SOR), dated February 28, 2003, to the Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted or denied. The SOR was based on foreign preference (Guideline C) related to his exercise of dual citizenship with the United States and Jordan and his retention of a foreign passport, and on foreign influence (Guideline B) concerns because of the foreign residency and citizenship of close family members.
In a signed and sworn statement, dated June 5, 2003, Applicant responded to the SOR allegations. He requested that his case be decided on the written record in lieu of a hearing. On September 8, 2003, Department Counsel submitted the Department's written case. A complete copy of the file of relevant material (FORM) was provided to Applicant, and he was given the opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant had until October 16, 2003, to file a response to the FORM, and a response was received. The case was assigned to this Administrative Judge on October 27, 2003.
In the FORM, Department Counsel offered 10 documentary exhibits (Exhibits 1 - 10). Applicant's response to the FORM has been identified and entered as Exhibit A.
FINDINGS OF FACT
In his response to the SOR, Applicant admits all eight allegations, 1.a. and 1.b., and 2.a. through 2.f. These allegations are incorporated as findings of fact.
After a complete and thorough review of the evidence in the record, including Applicant's Answer to the SOR, and the admitted documents, and upon due consideration of that evidence, I make the following additional findings of fact:
Applicant is a 36 year old employee of a defense contractor. He is unmarried and has no children. He received a bachelors degree and a masters degree in mechanical engineering from a United States university.
Applicant was born in the Jordan in 1967 and immigrated to the United States in 1987. He became a naturalized United States citizen in 1999.
Paragraph 1 (Guideline C - Foreign Preference). The Government alleges in this paragraph that Applicant is ineligible for clearance because he has acted in such a way as to indicate a preference for another country over the United States.
Since he came to the United States, Applicant has traveled to Jordan to visit his family in 1991, 1999, and 2001 (Exhibit 5). He used his Jordanian passport on the trips in 1992 and 1999, before he became a United States citizen. When in Jordan, in 1999, he renewed his Jordanian passport, which will expire in July, 2004. He has not used, but has retained his Jordanian passport after he became a United States citizen.
Applicant considers himself a dual citizen of Jordan and the United States. While he has expressed a willingness to renounce his Jordanian citizenship and relinquish his passport he has taken no affirmative step to relinquish his Jordanian passport to the proper Jordanian authorities or to renounce his citizenship (Exhibits 3 and 5).
Paragraph 2 (Guideline B - Foreign Influence). The Government alleges in this paragraph that Applicant is ineligible for clearance because he has immediate family members or people to whom he may be bound by affection or obligation who are citizens of Jordan, and may be subject to duress.
Applicant's mother is a citizen of Jordan and now resides in the United States. He has two sisters and one brother who are dual citizen of Jordan and United States and now reside in United States. He has one brother who is a citizen of Jordan and resides in the United States. Finally, he has one brother who is a Jordanian citizen and lives in Jordan. This brother is in the process of attempting to acquire a visa so he can also move to the United States. None of these family members is connected with the Jordanian government.
POLICIES
The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, favorable and unfavorable, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the nature, extent, and seriousness of the conduct and surrounding circumstances; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the motivation of the individual applicant and extent to which the conduct was negligent, willful, voluntary or undertaken with knowledge of the consequences involved; the absence or presence of rehabilitation and other pertinent behavioral changes; the potential for coercion, exploitation and duress; and the probability that the circumstances or conduct will continue or recur in the future. See Directive 5220.6, Section 6.3 and Enclosure 2, Section E2.2.
Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or emotionally unstable behavior. See Directive 5220.6, Enclosure 2, Section E2.2.4.
Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:
Guideline C (Foreign Preference)
E2.A3.1.1. The Concern: 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.
E2.A3.1.2. Conditions that could raise a security concern and may be disqualifying also include:
E2.A3.1.2.1 The exercise of dual citizenship.
E2.A3.1.2.2. Possession and/or use of a foreign passport
E2.A2.1.3. Condition that could mitigate security concerns include:
E2.A3.1.3.4. Individual has expressed a willingness to renounce dual citizenship.
Guideline B (Foreign Influence)
E2.A2.1.1. The Concern: A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation or pressure.
E2.A2.1.2. Condition that could raise a security concern and may be disqualifying include:
E2.A2.1.2.1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country
E2.A2.1.3. Condition that could mitigate security concerns include:
E2.A2.1.3.1. A determination that the immediate family member(s). . . in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States;
Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make critical judgments as to the credibility of witnesses. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.
Burden of Proof
Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets its burden and establishes conduct cognizable as a security concern under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of criterion conduct, it is clearly consistent with the national interest to grant or continue his security clearance.
A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security. See Enclosure 2 to the Directive, Section E2.2.2.
CONCLUSIONS
Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of those who testified, I conclude the following with respect to guidelines C and B:
Guideline C is based on actions taken by an individual that indicates a preference for a foreign country over the United States. Applicant's failure to relinquish his Jordanian passport to the proper Jordanian authorities, despite his stated intention to relinquish said passport, raises serious foreign preference Guideline C concerns. Applicant's retention of his Jordanian passport is a violation of the Money Memorandum, and therefore Applicant is absolutely barred from retaining a security clearance. Disqualifying Condition (DC) E2.A3.1.2.2. applies because of Applicant's failure to return his passport to the proper authorities. itigating Condition (MC) E2.A3.1.3.4. applies in this case under Guideline C because of Applicant's stated willingness to renounce his Jordanian citizenship.
Under Guideline B, a security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he is bound by affection, influence or obligation, are not citizens of the United States or may be subject to duress. Based on the evidence of record, the Government has established an initial reason to deny Applicant a security clearance because of Guideline B. Applicant has five immediate family members who are citizens of Jordan, and one who is a citizen of and resides in Jordan, which creates the potential for foreign influence that could result in the compromise of classified information, because it makes Applicant potentially vulnerable to coercion, exploitation, or pressure. The possession of such ties raises a security concern sufficient to require Applicant to present evidence in rebuttal, extenuation, or mitigation sufficient to meet his burden of persuasion that it is clearly consistent with the national interest to grant or continue a security clearance for him. The existence of immediate family members, who are citizens of and reside in Jordan comes within Disqualifying Condition (DC) E2.A2.1.2.1.
Based on the nature of the overall record and the totality of the evidence, I conclude that Applicant's family does not constitute an unacceptable security risk. Because all of Applicant's family members now reside in the United States, with the exception of one brother, who is in the process of moving here, and there has been no government involvement with any of these family members, MC E2.A2.1.3.1. applies.
FORMAL FINDINGS
Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:
Paragraph 1. Guideline C: AGAINST THE APPLICANT
Subparagraph 1. a.: Against the Applicant
Subparagraph 1.b.: Against the Applicant
Paragraph 2. Guideline B: FOR THE APPLICANT
Subparagraph 2.a.: For the Applicant
Subparagraph 2.b.: For the Applicant
Subparagraph 2.c.: For the Applicant
Subparagraph 2.d.: For the Applicant
Subparagraph 2.e.: For the Applicant
Subparagraph 2.f.: For the Applicant
DECISION
In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.
Martin H. Mogul
Administrative Judge