DATE: November 26, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ELIZABETH M. MATCHINSKI
APPEARANCES
FOR GOVERNMENT
Peregrine D. Russell-Hunter, Esq., Department Counsel
FOR APPLICANT
Mark E. Pelosky, Esq.
SYNOPSIS
Applicant's mother is a U.S. naturalized citizen who spends most of each year since 1981 in her native Portugal. Applicant's father-in-law is a dual citizen of Iran and the U.S. who has traveled to Iran on an Iranian passport to fulfill his obligations as head of the family. Applicant's mother's residency in Portugal raises little security concern. Since Applicant's father-in-law has three siblings who remain resident citizens of Iran, his father-in-law is likely to travel to Iran in the future. While there is a risk that his father-in-law may be pressured or improperly influenced by Iranian authorities, Applicant can be counted on to inform U.S. authorities of any undue foreign influence. Clearance is granted.
On March 7, 2003, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant. The SOR 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. (1) DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied or revoked. The SOR was based on foreign influence (Guideline B) concerns.
On April 29, 2003, Applicant executed an Answer to the SOR and requested a hearing before a DOHA Administrative Judge. The case was assigned to me on June 16, 2003, and a hearing was scheduled for July 15, 2003. At the hearing held as scheduled, four Government exhibits and eleven Applicant exhibits were entered into the record. Testimony was taken from Applicant, his spouse, and his direct supervisor, as reflected in a transcript received by DOHA on July 24, 2003.
By letter dated August 15, 2003, Applicant's counsel proposed changes to the transcript. On August 19, 2003, the Government was granted until September 3, 2003, to file any objection to the changes proposed. No response was received by the due date from Department Counsel. Only those changes which advance the accuracy of the transcript of the proceeding (i.e., correct the transcript to reflect the words actually spoken) are appropriate. (2) Changes designed, intended or having the practical effect of correcting misstatements made by a speaker, of conforming oral testimony to other evidence presented, or of advocating a party's cause were rejected. After review of the corrections proposed by Applicant's counsel, changes numbered 5 and 7 were accepted. (3)
At the Government's request, administrative notice has been taken of a U.S. Department of State Consular Information Sheet on Iran dated February 26, 2002 (information current as of July 11, 2003), and of U.S. President George W. Bush's State of the Union Address of January 29, 2002. Applicant submitted into evidence a U.S. Department of State Travel Warning on Iran dated April 22, 2003 and information about dual nationality as published by the State Department. (Ex. B).
DOHA alleged foreign influence concerns related to the part-time Portuguese residency of Applicant's mother, a U.S. naturalized citizen, and the dual citizenship (Iran and U.S.) of his father-in-law, who was also alleged to visit Iran several times per year to oversee his property there. Applicant admitted his mother has resided in her native Portugal since 1981 where she owns a farm. He indicated he was uncertain of his father-in-law's citizenship status, but admitted his father-in-law has an Iranian passport used to enter Iran as required by that nation. Applicant related his father-in-law no longer owned any property in Iran, as he had divested himself of all financial interests there. His father-in-law's extended travels to Iran were for to care for his elderly mother and to visit terminally ill relatives. After a complete and thorough review of the evidence of record, and upon due consideration of the same, I make the following findings of fact:
Applicant is a 44-year-old senior software engineer who has been employed by a defense contractor most recently since November 2001. During his previous employ with the firm from June 1985 to January 1997, Applicant held clearances up to the level of Secret without adverse incident. Shortly after his return to work in 2001, he was granted an Interim Secret security clearance. He requires a Secret clearance for his present duties.
Applicant was born in the U.S. in April 1959. His parents were immigrants who had come to the U.S. from Portugal in 1958 with their three older children. (4) Applicant's siblings became U.S. citizens through naturalization in 1963. His mother was naturalized in September 1965.
In the early 1960s, Applicant's parents purchased a mixed-use building in their local area in the U.S. where they operated a bakery business. Following their retirements in 1981, Applicant's parents moved back to Portugal as they had always planned. They did not divest themselves of their U.S. property. Applicant and his siblings remained in the U.S.
Applicant earned a Bachelor of Arts, cum laude, in 1981 and a Bachelor of Science degree in electrical engineering in 1985. While pursuing his B.S. degree, Applicant met his future spouse at a friend's wedding in 1982. A citizen of Iran, she had come to the U.S. to pursue further education in 1977 and was living locally with her sister. Her parents continued to reside in Iran, where her father, an electrical engineer by training, was a "very high level executive" for the state-owned oil company. He continued to work for the oil company for about a year after the 1979 Islamic revolution in Iran. Her mother, who had been involved with a charity under the Pahlavi regime, fled Iran with her son when the borders opened, initially going to Italy. She came to the U.S. in 1983 where she was granted refugee status. Her spouse stayed in Iran, primarily to care for his mother who was dependent on him.
In June 1985, Applicant went to work for his current employer as a quality assurance engineer. That August, he married his Iranian born spouse. Daughters were subsequently born to them in the U.S. in November 1987 and in June 1990, respectively. Her Iranian citizenship did not prevent him from obtaining a security clearance for his defense-related duties. In 1987, Applicant's security clearance was upgraded to Secret.
Circa 1986/87, Applicant's mother-in-law applied for her spouse to emigrate to the U.S. from Iran. Since the U.S. had no diplomatic relations with Iran, applications for emigration were being handled by U.S. embassy personnel in Turkey. Her application on his behalf was denied as the embassy was no longer taking cases for Iranians seeking to emigrate. She was advised to look to other U.S. consulates and embassies for assistance. While on vacation in Portugal with his family in 1988, Applicant asked the U.S. consulate there to take on his father-in-law's case. Applicant's efforts to facilitate his father-in-law's emigration to the U.S. came to the attention of his employer in about February 1989 when Applicant presented some of the paperwork to a coworker for notarization. Applicant was questioned by security officials at the company, who in turn reported to the Defense Investigative Service (now Defense Security Service) that Applicant was working through the U.S. consulate in Portugal to gain permission for his father-in-law's emigration from Iran. Following an interview with an agent from the Defense Investigative Service, Applicant was allowed to keep his security clearance. Through the assistance of his parents, who posted a $1,000 bond and vouched for his father-in-law, Applicant was successful in obtaining a visa for his father-in-law who left Iran for Portugal in or around April 1989. In July 1989, Applicant's father-in-law entered the U.S. as a legal immigrant.
Applicant's mother-in-law became a U.S. naturalized citizen in September 1989. His spouse acquired U.S. citizenship in May 1990. Applicant's father-in-law had difficulty meeting the residency requirement for U.S. citizenship, as every 18 months on average, he traveled to Iran for lengthy stays of up to two or three months to care for family members, especially his mother as she aged. Having sold the family's home in Iran in 1989 before he came to the U.S., Applicant's father-in-law purchased in late1996 an apartment in Iran for his mother convenient to her medical care. After his mother's death in 1998, Applicant's father-in-law continued to travel to Iran, including in March 2000, to fulfill his duties as the head of the family, primarily visiting ill relatives and attending their funerals. During his visit in March 2000, Applicant's father-in-law sold the apartment he had purchased for his mother, as he had made the decision to reside permanently in the U.S. In September 2000, Applicant's father-in-law became a U.S. citizen, and he was issued a U.S. passport that is valid for ten years.
Considered by Iran to be a citizen of its country only, Applicant's father-in-law is required to enter Iran on an Iranian passport. (5) On his three trips to Iran since he acquired U.S. citizenship (March to May 2001; sometime between July and October 2001 on the death of the spouse of his sister; late April to late July 2002 on the death of his brother-in-law), Applicant's father-in-law entered Iran on an Iranian passport issued to him through the Pakistan embassy in November 1998 and scheduled to expire in November 2003. He presented his U.S. passport while in transit through European Union countries and on his re-entry into the U.S. Applicant's father-in-law had to pay a fee to exit Iran on at least one occasion.
While gainfully employed by the defense contractor, Applicant earned his master's degree in computer science in 1996. From January 1997 to November 2001, he worked in the commercial sector as a senior software engineer. With the company downsizing, Applicant contacted his prior employer. Coworkers who had worked with him in the past were pleased to have him back due to his very good work record and valuable background in both electrical engineering and computer science. In conjunction with his return to work for the defense contractor, Applicant executed a SF 86 on November 20, 2001, on which he was candid about his foreign connections. Four days later, he was granted an Interim Secret clearance.
In February 2002, Applicant was interviewed by a Defense Security Service special agent about his foreign connections. Unaware that his father-in-law had sold his apartment in Iran, Applicant told the agent that his father-in-law traveled to Iran for several months each year to oversee property he owned.
As of July 2003, Applicant's in-laws were residing in the U.S. A registered voter in the U.S. since November 2002, Applicant's father-in-law does not vote in Iranian elections. He has divested himself of all financial interests in Iran, and receives no financial benefits from Iran. He still has obligations as head of the family with regard to ill or deceased family members in Iran. His two brothers and one sister presently reside in Iran. These relatives are elderly and do not work for the Iranian government.
Applicant's spouse is currently unemployed, although she has worked for computer companies in the U.S. in the past. Applicant and his immediate family (spouse and children) visit his in-laws in the U.S. once a year. Applicant's spouse has telephone contact with her parents two to three times per month. Their conversations are in the Farsi language, which Applicant does not understand. Applicant speaks with his father-in-law on occasion when his spouse contacts them. Their conversations revolve around family, vacation plans, how things are going at work.
As of July 2003, Applicant's 79-year-old mother was living nine months of the year on her farm of six or seven acres in Portugal. As a hobby, she produces wine that is sold to a local cooperative in Portugal. Her farm has an approximate value of $240,000.00 (US). She receives no financial assistance or benefits from the Portuguese government. Since the death of her spouse in 2001, she is the sole owner of the multi-use building in the U.S. The property has an assessed value for local real estate tax purposes of about $1,135,800 (US). As of July 2003, there were eight apartments in the building as well as a restaurant which was being operated by Applicant's sister.
Applicant's mother spends two to three months each year in the U.S. visiting her children and their families. Applicant talks to his mother about once a month and visits her in Portugal once a year to once every other year.
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:
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. Conditions 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.A2.1.2.2. Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists.
E2.A2.1.3. Conditions that could mitigate security concerns include:
E2.A2.1.3.1. A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(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.
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.
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 Government has established its case under Guideline B. 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. Applicant has close ties of affection and obligation to his mother, who resides most of the year on her farm in Portugal. Moreover, Applicant married into an Iranian family. Although his spouse and in-laws have acquired U.S. citizenship and maintain their residency in the U.S., they are considered under Iranian law to be Iranian nationals. (6) Clearly, his situation falls within disqualifying conditions 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) and E2.A2.1.2.2. (sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists).
The security concerns engendered by the foreign citizenship and/or residency of close family members may be mitigated where it can be determined that they are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force him to choose between loyalty to the person(s) involved and the United States (see E2.A2.1.3.1.). There is little risk of undue foreign influence presented by his mother's residency in Portugal. An owner of a small farm in Portugal, she is not now, nor was she ever, an agent of a foreign power. A U.S. citizen, she has strong ties to the U.S. where she spent her working years, and raised her children. Applicant's mother continues to own a multi-use building in the U.S. assessed in excess of $1,000,000 US, and to spend two to three months per year in the U.S. visiting her children and their families. It is also noted that Portugal is a NATO member with friendly relations with the U.S.
Applicant has a particularly heavy burden to demonstrate that his ties to Iranian citizens do not pose a security risk. In a recent case involving an applicant with Iranian ties (ISCR Case No. 02-0486 decided June 27, 2003), the DOHA Appeal Board cited Iran's history of hostility to the U.S. since 1979, its involvement in international terrorism and in subversive activities against its neighbors, its opposition to the Middle East peace process, and its dismal rights record in concluding that ties to Iran give rise to significant security concerns. Applicant's spouse came to the U.S. as a foreign student in 1977. There is no evidence she has returned to Iran or that she has exercised any right or benefit of Iranian citizenship since 1979. She has pursued her life as a U.S. citizen, working in the U.S., marrying in the U.S., raising her children in the U.S. and being naturalized in 1990. Applicant's mother-in-law, who came to the U.S. as a refugee fleeing Iran after the fall of the Pahlavi government, has similarly severed her ties to Iran with its Islamic government. A resident of the U.S. since 1983 after arriving through Italy, Applicant's mother-in-law acquired U.S. citizenship in 1989. There is no evidence she has returned to Iran, even on the death of her brother in 2002.
Applicant's father-in-law, unlike his daughter and spouse, continues to exercise Iranian citizenship. A high-ranking executive in the state-run oil company before his retirement in about 1980 or 1981, he had connections with Iranian officials in all likelihood, but there is no indication he ever acted as an agent of the foreign government, especially of the Islamic Republic of Iran. While he elected not to flee Iran with his spouse and son, he emigrated to the U.S. in 1989. He has since traveled to Iran, at least once every eighteen months for lengthy stays, to care for his mother until her death in 1998, and thereafter to fulfill his obligations as head of the family. Since becoming a U.S. citizen in September 2000, Applicant's father-in-law traveled to Iran on three separate occasions, most recently in July 2002. With his U.S. citizenship not recognized by Iranian authorities, he entered Iran on his Iranian passport that was issued through the Pakistan embassy in November 1998. With two brothers and a sister still living in Iran, Applicant's father-in-law is likely to travel to Iran in the future, which will require the renewal of his Iranian passport scheduled to expire in November 2003. By traveling to Iran on an Iranian passport, Applicant's father-in-law places himself within physical reach of the Iranian authorities. Given the U.S. has no diplomatic relations with Iran, U.S. assistance would be limited should undue foreign pressure be brought to bear on him when he is in Iran. There is no evidence Applicant's father-in-law has ever been improperly approached or threatened during any of his extended stays in Iran. The risk of undue foreign influence is lessened by his U.S. citizenship and residency, but it cannot be completely discounted as long as he intends to fulfill his obligations to his close relations in Iran.
Applicant testified persuasively he would not be motivated by money to act on the behalf of Iranian interests and he has reported his foreign connections to the U.S. Government. The Government's concerns are not that Applicant has any preference for Iran, but rather that he could be forced to choose between loyalty to family members vulnerable to foreign influence and the U.S. in the event of any undue pressure by foreign authorities. As the DOHA Appeal Board recently reaffirmed in ISCR Case No. 02-04786, "'as a matter of common sense and human experience, there is a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of the person's spouse.'" Applicant's contacts with his father-in-law are limited to occasional telephone conversations and to a once yearly visit with him. Their infrequent contact suggests their personal relationship is not close. Yet, whether because of his spouse's relationship to her father or his own sense of obligation or affection for his father-in-law, Applicant assisted his father-in-law in his emigration efforts, even to the extent of asking his parents in Portugal to post a $1,000 bond so that his father-in-law could process his application for U.S. emigration through the U.S. consulate in Portugal. There is no evidence of subsequent deterioration in Applicant's or his spouse's relationship with her father. As of July 2003, Applicant's spouse was speaking with her father once or twice per month.
However, Applicant's relationship with his father-in-law, either personally or through his spouse, is only one factor to consider in assessing Applicant's vulnerability should undue foreign influence be placed on family members. As part of the "whole person" concept, Applicant's personal integrity must be taken into account. Candid about his foreign connections during the investigation and adjudication of his clearance, Applicant willingly disclosed father-in-law's ownership of property in Iran and his father-in-law's travels to Iran to care for family members or attend funerals. Applicant credibly explained he was mistaken in his understanding that his father-in-law still owned property in Iran as of February 2002. Applicant presents a record of dedicated contributions to his employer as well as adherence to security practices and procedures--including those related to safeguarding of classified information--during a time when his spouse was not yet naturalized in the U.S. and his father-in-law was spending significant amounts of time in Iran caring for his dependent mother. While Applicant is not entitled to retain a security clearance merely because he held one without adverse incident, Applicant's current situation presents less of a security risk than in the past, with family illness and/or death now being the sole basis for his father-in-law's travels to Iran. Political realities being what they are, any efforts of the Islamic government in Iran to gain information through influence or pressure on Applicant's family members (supporters of the former Pahlavi regime) are likely to be met with resistence and notification by Applicant to U.S. authorities of the improper contacts or threats. After consideration of all the facts and circumstances, favorable findings are warranted with respect to subparagraphs 1.a., 1.b. and 1.c. of the SOR.
Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:
Paragraph 1. Guideline B: FOR THE APPLICANT
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: For the Applicant
Subparagraph 1.c.: For the Applicant
In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.
1. The SOR was issued under 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).
2. The purpose of the transcript is not to "necessarily represent and reflect accurate facts." Rather, it is intended as a verbatim account of what was said and what transpired during the hearing.
3. Proposed change 6 was not a change but rather a request by Applicant's counsel for page 87 of the transcript, which was apparently omitted from the copy provided by the court reporter. A copy of page 87 was sent by facsimile to Applicant's counsel.
4. Applicant indicated in his Answer that his father had been in the U.S. since 1945. Since three of their four children were born in Portugal, it is reasonable to assume that Applicant's father spent some time in Portugal between 1945 and 1958.
5. Applicant's spouse testified her father would be "persecuted" if he tried to enter Iran on his U.S. passport. (Transcript p. 108).
6. See the U.S. Department of State's Consular Information Sheet on Iran, dated February 26, 2002, on dual nationality ("U.S. citizens who were born in Iran . . . and the children of such persons, are considered Iranian nationals by Iranian authorities. Therefore, despite the fact that these individuals possess U.S. citizenship, they must enter and exit Iran bearing an Iranian passport.").