DATE: December 20, 2004

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SSN: ----------------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Rita C. O'Brien, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant's exercise of dual citizenship, his possession of a foreign passport and his close foreign family ties have not been mitigated. Clearance is denied.

STATEMENT OF THE CASE

On May 27, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on June 17, 2004, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to the Applicant on October 6, 2004. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on October 12, 2004, and did not submit a reply.

The case was assigned to the undersigned for resolution on November 29, 2004.

On August 16, 2000, a memorandum was issued by Mr. Arthur Money, Assistant Secretary of Defense for Command, Control, Communications and Intelligence, clarifying "the application of Guideline C to cases involving an Applicant's possession or use of a foreign passport." The Applicant received a copy of this memorandum. (See, Government Item 3).

The following Findings of Fact are based on Applicant's Answer to the SOR, and the contents of the FORM. The Applicant is 50 years of age, married and has a Ph.D in Electrical Engineering. He is employed as a Professor and Department Chairperson by a University. He seeks a security clearance in connection with employment in the defense industry.

Paragraph 1 (Guideline C - Foreign Preference). The Government alleges in this paragraph that the Applicant is ineligible for a clearance because he has acted in such a way as to show a preference for another country over the United States.

The Applicant is a dual citizen of Iran and the United States. He was born in Iran in 1954, to Iranian parents. In November 1977, he immigrated to the United States to obtain a better education. He married his Iranian wife in 1983, and had three children who were born in the United States. The Applicant has lived in the United States since 1977. In November 1988, the Applicant became a United States citizen. (See, Government Item 4).

The Applicant presently possesses a passport from Iran that was initially issued to him on May 20, 1988. He renewed it in 2003, and it will not expire until ay 19, 2008. He also possesses a United States passport that was issued to him on January 18, 1988. (See, Government Item 4).

In his answer to the SOR dated June 27, 2004, the Applicant states that he is willing to relinquish his Iranian passport and renounce his Iranian citizenship. The Applicant has not as yet surrendered his foreign passport.

The Applicant has no financial interests of any sort in Iran. He states that he is a loyal citizen of the United States and has no preference for Iran.

Paragraph 2 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

The Applicant admits that his mother, father, five brothers and two sister are citizens of and reside in Iran. The Applicant's father is also a permanent resident alien of the United States. His mother is in the process of becoming a permanent resident of the United States. One of his sisters and one of his brothers have received their permanent resident status and are in the process of liquidating their assets to permanently move to the United States. The number of siblings is unclear from the evidence. Applicant's statement of 1989 lists nine siblings. (See Government Item 8). His Answer of 2004, lists seven siblings. (See Government Item 2). His security clearance application lists five siblings. (See Government Item 4). In any case, the Applicant has traveled to visit his family in Iran at least three times between 1992 and 2000. He is very close to his family in Iran, as he indicates in one of his sworn statements that he loves them very much, and is making efforts to bring them to the United States. (See Government Item 8). The Applicant contacts his brothers by telephone about once a year. There is no evidence in the record as to the recent frequency of contacts, if any, he has with his parents and sisters.

The Applicant's father is a retired Iranian constable who was in the Shah's regime. One of the Applicant's brothers is a retired Colonel in the Iranian military.

The Applicant traveled to Iran in 1992, 1999, and July 2000 and used his Iranian passport to enter and exit Iran. He left his United States passport at an American Consulate outside of Iran.

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Foreign Preference

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.

Conditions that could raise a security concern:

1. The exercise of dual citizenship;

2. Possession and/or use of a foreign passport;

Condition that could mitigate security concerns:

None.

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: (1) not citizens of the United States or (2) 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.

Condition that could raise a security concern:

1. An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country;

Condition that could mitigate security concerns:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . 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."

The Government must make out a case under Guideline C (foreign preference) and Guideline B (foreign influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and her ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

An individual who demonstrates a foreign preference and has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. The mere possession of a foreign passport raises legitimate questions as to whether the Applicant can be counted upon to place the interests of the United States paramount to that of another nation. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

Having considered the evidence of record in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR, and that Applicant's foreign contacts have a direct and negative impact on his suitability for access to classified information.

The Applicant is a dual citizen of Iran and the United States. Although he has indicated that he is willing to relinquish his Iranian passport and renounce his Iranian citizenship, he has not done so. He presently possesses an Iranian passport that he renewed in 2003, after becoming a United States citizen in 1988. He has exercised his dual citizenship as recently as 2000, when he used his Iranian passport to travel to and from Iran. The Applicant has failed to comply with the provisions of the Money Memorandum that requires dual citizens to surrender their foreign passports to be eligible for access to classified information. There is no discretion to grant the Applicant a security clearance where the Applicant has not surrendered his Iranian passport. Disqualifying conditions (1) The exercise of dual citizenship;(2) Possession and/or use of a foreign passport apply under Guideline C. None of the mitigating factors apply. Thus, he has not demonstrated an unequivocal preference for the United States. Under the particular circumstances of this case, I find against the Applicant under Guideline C.

With respect to Guideline B, the Applicant has foreign contacts and family ties in Iran. His immediate family members, in this case his mother, father, five brothers and two sisters, are citizens of Iran and reside there. He maintains some contact with his brothers in Iran. It is unclear whether or not he has contact with his parents and sisters. He has not shown that the contacts are infrequent and casual. Under these particular circumstances, there remains the possibility of pressure being placed on his foreign relatives, and through them, on the Applicant. It is the Applicant's burden to show that these ties are not of a nature that could create the potential for influence that could result in the compromise of classified information. He has not done so. Accordingly, I cannot say that he would not be vulnerable to foreign influence. The risk is considerable, and is of present security significance. Disqualifying condition (1) An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country applies under Guideline B. None of the mitigating factors apply. Accordingly, the Applicant's request for a security clearance must be denied under Guideline B.

Considering all the evidence, the Applicant has not met the mitigating conditions of Guideline C or Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guidelines C or B.

Formal Findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant.

Subparas. 1.a.: Against the Applicant 1.b.: Against the Applicant

1.c.: Against the Applicant

Paragraph 2: Against the Applicant.

Subparas. 2.a.: Against the Applicant

2.b: Against the Applicant

2.c.: Against the Applicant

2.d.: Against the Applicant

2.e: Against the Applicant

2.f: Against the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interests to grant or continue a security clearance for the Applicant.