Security Clearance Denial

Living With Illegal Alien Results in Clearance Denial

In a recent Defense Office of Hearing and Appeals case a longtime government contractor had his clearance reinstatement request denied because he was living with his Mexican-born girlfriend who was in the U.S. illegally. I know you are asking yourself right now “what’s the big deal here?” There is a little bit more to this particular case. He has been living with her for ten years now, during a part of which he was in a cleared status. He reported his association with her to his FSO five years ago, but it is unclear what action, if any was taken then. Another aggravating factor was that since entering the U.S. she has not attempted obtaining legal permanent residence status. And to top it off, the applicant has not indicated any desire to marry her, which would help her gain U.S. citizenship, which might have helped mitigate the issue.

The judge concluded that under Guideline B: Foreign Influence, the applicant’s continued cohabitation with someone who is in the U.S. illegally (in violation of immigration law) poses a heightened risk of coercion even though he himself has not broken the law, and thus it was not in the best interests of national security to grant him a clearance. The judge also opined that the applicant’s judgement was in question because he continues to associate with someone who is involved in a criminal activity with no efforts at changing the long-running situation. Considering the current political climate on this issue, this decision is not really that surprising.

Discussion

  1. I agree with DOHA's decision, but I do not believe that "the current political climate" had anything to do with it and the Director of DOHA would absolutely disagree with that contention. DOHA and ALL DoD adjudicators are trained and practice implementation of the adjudicative guidelines. Political climate and other distractions, such as lawyers, Congressmen, General Officers, etc, should not be influencing eligibility determinations. I also disagree with the idea that the subject "has not broken the law" when he has, in fact, been harboring a criminal therefore he is an accessory to a crime. I would love to read the PSI, especially the personal interview to know what he knew and when. Denial was the appropriate decision.

  2. I agree, as an adjudicator I would never pay attention to outside issues such as politics and news. I meant to say is that it just happens to coincide with current events.

  3. In a similar case (ISCR Case No. 10-00503) the DOHA Administrative Judge cited disqualification under Guideline E (Personal Conduct). It seems that Guideline E is often used in place of Guideline J (Criminal Conduct) when common sense indicates that a law is being violated, but there may be insufficient evidence to prove all elements of the crime. In this case proof of harboring an illegal alien (8 U.S.C. 1324, a felony), probably depends on whether the clearance applicant pays most or all of the rent (and living expenses) and therefore substantially facilitate the alien’s remaining in the U.S. illegally with knowledge of the alien’s unlawful status.