Case No. VSO-0409, 28 DOE ¶ 82,793 (H.O. Lipton March 12, 2001)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

March 12, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 11, 2000

Case Number: VSO-0409

This Opinion concerns the eligibility of XXXXXXXXXXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual’s suspended access authorization should be restored. As discussed below, I recommend restoration in this case.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to her eligibility for an access authorization in connection with her work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of the derogatory information. The DOE concern involves information indicating that the individual aided and abetted an illegal alien, cohabited with him and planned to marry him. According to the letter, this constitutes derogatory information under 10 C.F.R. § 710.8(l) (hereinafter Criterion L). (2)

The Notification Letter informed the individual that she was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual was represented by an attorney. The individual testified on her own behalf, and presented testimony of her alien spouse (spouse)(3), the spouse’s daughter, two friends/co-workers, her supervisor, and the attorney who is assisting the individual and the spouse in connection with the immigration issues (immigration attorney). The DOE Counsel presented the testimony of a security specialist.

II. Hearing Testimony

A. Security Specialist

As stated above, the area of concern identified in the Notification Letter involves the individual’s relationship with an illegal alien. The Security Specialist testified that the security concern here arises because “aiding and abetting” an illegal alien suggests questionable judgment, unreliability, and an unwillingness to comply with rules and regulations. This behavior also poses a concern because the individual might be susceptible to coercion, pressure or duress, if she kept her spouse hidden from the community. Transcript of Personnel Security Hearing (Tr.) at 10- 11. (4)

B. The Individual

The individual testified that she met her (future) spouse at a club in May of 1999, and shortly thereafter they began living together. In September 1999, while they were out together, the spouse was arrested for being in the U.S. illegally. Tr. at 77. The individual testified that she was shocked to learn that the spouse was not legally in this country. Within several days of this arrest, the individual reported the incident and her relationship with the spouse to her supervisor. She further described the incident in a letter to a DOE Security Specialist. DOE Exh. 9; Tr. at 28-33. The individual also testified that she had shared the information about this incident and the illegal status of her spouse with her co-workers. Tr. at 37.

The spouse was sent to prison for several months, and then deported to his native country in March 2000. Tr. at 74-77. During this time, the individual cared for the spouse’s 14 year old daughter, who is a U.S. citizen. Shortly after the spouse was deported, he made his way back to the United States and again came to live with the individual and his daughter. The individual testified that she was not involved in any way in facilitating his entry into the U.S. Tr. at 34, 82. Between one and two months later, the individual reported to the DOE that the individual had returned to the U.S. Tr. at 78, 81-83. (5) She made this report in connection with her recertification under the DOE’s PSAP program. Tr. at 83. In July 2000 the individual and the spouse were married.

At the end of 2000, the individual hired an immigration attorney to assist in legalizing the spouse’s position in the country. The individual testified in detail about the submissions to the U.S. Immigration and Naturalization Service (INS) that were made on behalf of her spouse. Tr. at 40-65. The documents submitted included biographical information about the individual and the spouse; financial information, including bank statements showing an account held jointly by the individual and the spouse; a marriage certificate; a rental agreement for their apartment signed by the individual and the spouse; photographs and fingerprints of the spouse; a January 31, 2001 letter from the INS stating that the spouse’s application for adjustment of status had been accepted for processing; and an employment authorization card, displaying an identification number for the spouse, his photograph and a fingerprint. Copies of these documents and other filings with the INS have been entered into the record of this proceeding. Submissions of February 2, 2001 and February 13, 2001.

Finally, the individual testified that she would not harbor an illegal alien in the future. She realizes that she should keep the DOE up to date on the status of the spouse. Tr. at 74, 79-80.

C. The Immigration Attorney

The immigration attorney testified about the efforts she had made in connection with normalizing the spouse’s position in the U.S. She indicated that she had notified the INS about the fact that the spouse was living in this country, and provided his address. Tr. at 105. Submission of February 2, 2001, Exh. 1. She confirmed that she made the filings discussed above on the spouse’s behalf. She described this INS process as a standard one, and stated that it is known officially as a Petition to Adjust Status. Tr. at 107. The immigration lawyer stated that the employment authorization card referred to above allows the spouse to work in this country. She also pointed out that the January 31 letter noted above stated that the spouse should not leave this country without prior written approval. Tr. at 120. The lawyer stated that there will now be at least a 12 to 18 month waiting period for the spouse to have an official interview regarding his petition. Tr. at 115, 117. She described the spouse’s current status as “in process.” Tr. at 119. She testified that he is now in this country legally and openly. Tr. at 120.

D. The Spouse

The spouse testified that he is currently employed, that he and the individual are living together, that they pay rent together and have a joint bank account. He stated that his daughter and the individual have a strong relationship. He testified that the individual was not involved in his illegal reentry into this country in 2000. When he was asked why he has expended considerable time, effort and money to normalize his status in this country, he responded:

. . . because I want to live with her, you know, I don’t want to cause [a] problem for my wife’s work. I want to do all of it good. . . I want to do all of it right.

Tr. at 147-158.

E. The Daughter

The spouse’s daughter, now 15 years old, confirmed that the individual and the spouse have a genuinely loving relationship. She testified that she and the individual have a strong, stable relationship, and that the individual is like a mother to her and cares about her. She indicated that while the spouse was in custody, the individual took care of her. She testified that she loves the individual and that she can count on her. Tr. at 144- 147.

F. The Supervisor and Co-workers

The individual’s supervisor stated that he has known the individual at the work site for about 10 years. He does not have a social relationship with her, but he was aware of the fact that she had married an undocumented alien. He characterized her as follows: “without a doubt she’s the finest [employee] I ever worked with.” Tr. at 137. He believed her to be honest, reliable and trustworthy. Tr. at 136-140.

The individual’s co-workers both testified that she is a reliable, stable and honest person, both on and off the job. Co-worker #1 has known the individual for approximately 11 years, primarily in the work environment, with some off-the-job contact. She testified that shortly after the arrest, the individual told her that the spouse was illegally in this country. This co-worker stated that she and the individual had discussed the fact that the individual would tell the DOE about it. She stated that the individual had never tried to conceal the spouse’s existence. She also stated that the individual told her she was surprised when she learned that the spouse was an illegal alien. She indicated that she has seen the individual and the spouse together and noticed that they had a genuinely affectionate relationship. This co-worker testified that she had never known the individual to be involved in any illegal activities or with other illegal aliens. Tr. at 87-95.

Co-worker # 2 has known the individual for about 12 years, also primarily on-the-job, although they have socialized together. She believes that the individual is honest and reliable. She stated that very shortly after the arrest, the individual had revealed to her that she was involved with an illegal alien. The co-worker stated that the individual was surprised to learn of his illegal status and that the individual said she was planning to tell her supervisor about this situation. She confirmed that the individual has a stable lifestyle outside of work and a close relationship with the spouse’s daughter. She testified that to her knowledge, the individual had no significant contacts with other illegal aliens. Tr. at 160-169.

III. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we apply a different standard, which is designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting or restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d).

This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) ("the clearly consistent with the interests of the national security test" for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)(strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

Once a security concern has been found to exist, the individual has the burden of going forward with evidence to rebut, refute, explain, extenuate or mitigate the allegations. Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995), aff’d, 25 DOE ¶ 83,013 (1995)(VSA-0005). See also, 10 C.F.R. § 710.7(c).

As discussed below, the individual has met her burden to mitigate the concerns regarding her reliability and trustworthiness. She has provided evidence that she and the spouse have contacted the INS, and that the spouse is now legally in the U.S. The individual has also demonstrated that she is reliable and trustworthy, both on and off the job. Moreover, the evidence in this case leads me to conclude that there has not been, nor is there likely to be, a possibility of coercion in this case. Finally, the individual has persuaded me that this type of incident is not likely to recur.

A. The Spouse Is Now Legally in the U.S.

As an initial matter, it is clear to me that the individual has resolved the concerns regarding the undocumented status of the spouse. The January 31, 2001 letter to the spouse from the INS, and the issuance of the employment authorization card are especially strong evidence in this regard. The documentary evidence and the testimony of the immigration lawyer convinced me that the spouse is now legally in the U.S.

Based on the testimony of the co-workers and the daughter, as well as on the documentary evidence that the individual and the spouse have leased an apartment together and hold a joint bank account, I am also persuaded that their marriage is genuine, and that it was not entered into for the purpose of obtaining documented status for the spouse.

B. The Individual is Trustworthy and Reliable

The individual has demonstrated overall reliability and trustworthiness. She is a fine role model for her stepdaughter, who clearly loves and counts on her. Her co-workers and supervisor think she is honest and reliable.

The spouse impressed me as an honorable, reliable, hard-working person who did not want to create difficulties for the individual, and only wanted “to do all of it right.” Tr. at 158. I therefore believe that the spouse has put his troubled past behind him. I see no cause for concern regarding the reliability or trustworthiness of the spouse, or of the individual’s exercise of judgment in deciding to marry him.

The individual showed trustworthiness and reliability in the manner in which she pursued the Petition for Adjustment in Status for the spouse. She hired an immigration lawyer and conscientiously followed her instructions. She filled out extensive documentation in a timely manner, paid considerable fees(6), and made sure that she and the spouse diligently followed up on all INS requirements, such as fingerprinting and photographing.

Although the spouse’s illegal status initially presented some problems for them, the individual and the spouse were both willing to work them out through our legal system. I therefore also find that the individual has mitigated the Criterion L security concerns regarding her willingness to comply with rules and regulations. (7)

C. There is no Risk of Coercion

Since the spouse is now fully documented and legally in this country, there is no current risk of coercion in this case. I am also persuaded that the individual never put herself at risk of coercion in the past regarding this matter. The testimony indicated that upon learning of the spouse’s illegal status, the individual readily acknowledged it to her co-workers, her supervisor and the DOE. She revealed to the DOE the spouse’s arrest within a matter of days of the occurrence, and wrote the DOE a follow-up letter. She also later gave notice to the DOE that the spouse had returned to the U.S., and that his status was undocumented.

I recognize that the individual waited about a month or two to provide this updated information, and that it should have been furnished more promptly. Nevertheless, I am convinced that it was given in a reasonably timely manner, and that there was no attempt to conceal from the DOE this important change in her status. Overall, I do not believe that the minimal reliability concern arising from the slight delay in providing this updated information outweighs the other mitigating factors discussed above, or overcomes my conclusion that she is a trustworthy person.

D. There is Little Likelihood of Recurrence

I am persuaded that a recurrence of this type of event in the individual’s life is highly unlikely. First, the individual is now well aware of the problems that were created by this incident, and has testified persuasively that she does not ever intend to give shelter to an undocumented person in the future. Tr. at 79-80.

Secondly, it is clear that this incident occurred because the individual fell in love with the spouse, and not because she initially had any intention of sheltering an illegal alien. The testimony of the co-workers supported the individual’s assertion that she learned of the spouse’s illegal status only after she had fallen in love with him and began living with him. Tr. at 96, 164. I see little chance that this set of circumstances will arise again for this individual. I further see no other evidence of poor judgment or untrustworthiness on the part of this individual that would lead me to believe that this is a pattern in her life. Quite the contrary, as discussed above, this individual has provided strong evidence of reliability, stability and trustworthiness in her personal and professional life.

IV. CONCLUSION

Based on the foregoing, I find that the individual has mitigated the Criterion L security concerns associated with her relationship with an illegal alien. The individual has persuaded me that the spouse is now a documented alien legally residing in the U.S. She has also convinced me that she is a reliable and trustworthy person who has a stable life-style, and is willing to comply with rules and regulations. Further, I am persuaded that there is little risk of coercion and that there will not be a repeat of the one incident of unreliability that has been brought to light in this case. I am therefore recommending that her access authorization be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer’s Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: March 12, 2001

(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.

(2)Criterion L includes information that the individual has “engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security.”

(3)I will use the term “spouse” throughout this Opinion, even though the individual was not married to him for the entire period relevant to his proceeding.

(4)The DOE counsel also raised the possibility that sheltering an illegal alien might constitute a criminal violation under 8 U.S.C. § 1324. He suggested that a violation of this law might also call into question the individual’s reliability. Tr. at 130. The immigration attorney testified that in her opinion, this law is not enforced against individuals who reside with an undocumented alien spouse or fiancé. Tr. at 127-128. Even if there was a technical violation of this Section, I do not believe that it raises any additional security concern in this case. I will therefore not give separate consideration to this issue.

(5)She gave another full, updated account of her relationship with the spouse during a Personnel Security Interview (PSI) that took place about one month after she made this report.

(6)The INS fees for the Application for Adjustment in Status totaled approximately $1,300. Submission of February 2, 2001, Exh. 4.

(7)I also believe that the fact that the individual readily acknowledged the presence of the spouse to the DOE is a further indication of her willingness to comply with rules.