DATE: December 8, 2004
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ROBERT J. TUIDER
APPEARANCES
FOR GOVERNMENT
Edward W. Loughran, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant was born and raised in Iran. He was unable to mitigate foreign preference concerns by failing to surrender his Iranian passport and exercising dual citizenship and was unable to mitigate foreign influence concerns as a result of his wife being a citizen of Iran and his father-in law being a citizen resident of Iran. Clearance is denied.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On August 23, 2003, DOHA issued a Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline B (Foreign Influence), and Guideline C (Foreign Preference) of the Directive. Applicant answered the SOR in writing on September 12, 2003 and elected to have a hearing before an administrative judge. The case was assigned to another administrative judge on October 23, 2003, however, due to caseload considerations was reassigned to me on January 7, 2004. On January 22, 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.
At the hearing, the Government presented seven exhibits, which were marked as Government Exhibits (GE) 1 through 7, without objection. Applicant presented one exhibit, which was marked as Applicant Exhibit (AE) A, without objection. DOHA received the transcript (Tr.) of the proceeding on January 30, 2004.
FINDINGS OF FACT
Applicant is a 43-year-old software engineer for a defense contractor. He was born and raised in Iran. Approximately, 25 years ago, he moved to the United States to attend college, following in the footsteps of his older brother. In June 1986, he was awarded a bachelor of arts degree in applied mathematics. Applicant became a naturalized citizen in July 1987.
In the late 1970s, Applicant's parents moved to the United States following the fall of the former Iranian government. Applicant's entire immediate family has immigrated to the United States and become naturalized citizens. His mother became a naturalized citizen in June 1986, his father in May 2001, his older brother in October 2000, and his younger sister in March 1970.
In the approximate time-frame of October 1998, Applicant traveled to Iran to attend his maternal grandmother's funeral and represent his family. Applicant remained in Iran for approximately four weeks and, during this visit, he met the woman who would become his wife. Prior to leaving for Iran, Applicant applied for and received an Iranian passport. His Iranian passport was issued on June 22, 1998 and expired on June 22, 2003. Applicant still possesses his expired Iranian passport. (2) Tr. 11. He does not intend to renew it. Tr. 24.
Applicant stated he obtained an Iranian passport because "the authorities told me that I have to have an Iranian passport in order to go there." Tr. 14. Applicant cited the U. S. Department of State Consular Sheet, Iran, dated September 8, 2003, as authority for obtaining and using an Iranian passport. (3) GE 5.
Applicant has visited Iran two additional times since attending his grandmother's funeral in 1988. The second time was in October 1999 and the third and most recent time was in March 2001. Tr. 18, GE 2, p. 2. On all three visits Applicant used his Iranian passport in lieu of his United States passport. Tr. 18-19.
Applicant married his Iranian wife in December 2000. Since their marriage, Applicant's wife has applied to become a United States citizen. Her Application for Naturalization was received by the Immigration and Naturalization Service on September 29, 2003. AE A. Applicant and his wife have a two-year-old son.
Applicant's father-in-law is a resident citizen of Iran in his mid-70s. He is a small businessman and does not work for the Iranian government. Tr. 24-25. Applicant maintains frequent contact with his father-in-law by telephone. Applicant also has two sisters-in-law, who are resident citizens of Iran. One is a housewife and the other is a university student. Tr. 25.
When Applicant completed his security clearance application, dated October 11, 2001, he responded, "Yes," to Question 3, "Are you now or were you a dual citizen of the U. S. and another country?' GE 1, p. 1. Although Applicant does not consider himself to be a dual citizen of the United States and Iran, the Iranian government considers him to be an Iranian citizen by virtue of his Iranian birth.
Applicant does not own a home in the United States, he intends to purchase one when financially able. He does all his banking in the United States and exercises rights of citizenship such as being registered to vote. Tr. 28
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 occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.
Enclosure (2) of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that 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 disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).
Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. 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.
CONCLUSIONS
Guideline C-Foreign Preference
In the SOR, DOHA alleged Applicant exercised foreign preference by being a dual citizen of both the United States and Iran (¶ 1.a); and possessing a Iranian passport as of 2001 (¶ 1.b). When an Applicant acts in such a way to indicate a preference for a foreign country over the United States, then he may be prone to provide information or make decisions that are harmful to the interests of the United States. Directive ¶ E2.A3.1.1.
The Government established by substantial evidence and Applicant's admissions that he exercised foreign preference by exercising dual citizenship and possessing an Iranian passport. DC E2.A3.1.2.1; DC E2.A3.1.2.2. A security clearance must "be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government." Memorandum from Arthur L. Money, Assistant Secretary of Defense, Command, Control, Communications, and Intelligence, to Directors of Defense Agencies, Guidance to DoD Central Adjudication Facilities (CAF) Clarifying the Application of the Foreign Preference Adjudicative Guideline (Aug. 16, 2000). Although Applicant's dual citizenship may exist by virtue of his birth, he took the additional step of obtaining and using an Iranian passport after becoming a United States citizen. Applicant's explanation regarding his applying for and using an Iranian passport is understandable, however, such use and possession runs contrary to current DoD policy. No mitigating conditions apply. I find against Applicant on this concern.
Guideline B-Foreign Influence
In the SOR, DOHA alleged Applicant's wife is a citizen of Iran (¶ 2.a); and Applicant's father-in-law is a citizen resident of Iran (¶ 2.b). A security risk may exist when an Applicant's immediate family, or other persons to whom he 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. Directive ¶ E2.A2.1.1.
The Government established by substantial evidence and Applicant's admissions each of the allegations in the SOR-Applicant has an immediate family member who is a citizen residents of a foreign country. DC E2.A2.1.2.1. While the
mere possession of family ties with persons in a foreign country is not, as a matter of law,
automatically disqualifying . . . [it] does raise a prima facie security concern sufficient to require an applicant to present evidence of rebuttal, extenuation or mitigation sufficient to meet the applicant's burden of persuasion that it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.
ISCR Case No. 99-0424, 2001 DOHA LEXIS 59 at **33-34 (App. Bd. Feb 8, 2001). It is a mitigating condition if the immediate family members or associates are not agents of a foreign power and are not in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to his family members and loyalty to the United States. MC E2.A2.1.3.1.
Security clearance decisions are not an exact science. Instead, they are predictive judgments about an Applicant's security suitability in light of that person's past conduct and present circumstances. Egan, 484 U.S. at 528-29. The evidence established that Applicant is a loyal United States citizen. At the same time, the evidence established Applicant has strong ties of affection or obligation to a family member who is a citizen resident of Iran. Although this foreign associate is not an agent of a foreign power, Applicant failed to demonstrate that his foreign associate is not in a position of vulnerability such that he could be forced to choose between loyalty to the United States and loyalty to him. His recent visits to Iran, his recent marriage to his Iranian wife, and presence of relatives in Iran during these present times pose a potential security risk. This concern would exist even if Applicant were able to cure the concern over possessing an Iranian passport. No mitigating conditions apply. Under these circumstances, I find against Applicant on this concern.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline C: AGAINST APPLICANT
Subparagraph 1.a.: Against Applicant
Subparagraph 1.b: Against Applicant
Paragraph 2. Guideline B: AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
Subparagraph 2.b.: Against Applicant
Subparagraph 2.c.: Against Applicant
DECISION
In light of all of 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. Clearance is denied.
Robert J. Tuider
Administrative Judge
1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.
2. Assistant Secretary of Defense Memorandum for Secretaries of the Military Departments, et al, dated August 16, 2000, SUBJECT: Guidance to DoD Central Adjudication Facilities (CAF) Clarifying the Application of the Foreign Preference Adjudicative Guideline, states in part: "The security concerns underlying this guideline (referring to Guideline C - Foreign Preference) are that the possession and use of a foreign passport in preference to a U. S. passport raises doubt as to whether the person's allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States. Therefore, consistent applicant of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government. (Emphasis added.)
3. U. S. Department of State, Consular Sheet, Iran, dated September 8, 2003, states in part, "However, the authorities [Iranian] sometimes confiscate the U. S. passports of U. S. - Iranian dual nationals upon arrival." Further, "U. S. - Iranian national have been denied permission to depart Iran documented as U. S. citizens. To prevent the confiscation of U. S. passports, the Department of State suggests that dual nationals leave their U. S. passports at the nearest U. S. Embassy or Consulate overseas for safekeeping before entering Iran, and use their Iranian passports to enter the country." Lastly, "Dual nationals sometimes have their U. S. passports confiscated and may be denied permission to leave Iran, or encounter other problems with Iranian authorities." GE 5, pgs. 1 and 2..