There is no question that the debate over illegal immigration engenders serious passions in this country. Yet no matter which side of the political spectrum you are on, one thing is clear: there have been many changes in U.S. immigration policy over the last few years. As a result, security clearance applicants with undocumented spouses or family members may be wondering what impact these changes and their family member’s citizenship status will have on their clearance.
The Relevant Guidelines and Policy vs. Law
To start, applicants should be aware that all security clearance cases – no matter which federal agency – are reviewed under a common set of 13 adjudicative guidelines. In situations involving a clearance holder with illegal immigrant family members, Guidelines “J” (Criminal Conduct), “E” (Personal Conduct), and “B” (Foreign Influence) potentially apply.
A common Guideline “B” case is a situation where the applicant’s parents (with whom the applicant is not living or financially supporting) are undocumented, but the applicant was born in the United States or brought here as a child. Depending upon the identity of the country at issue and the nature of the specific relationship the applicant has with his or her relative(s) from that country, Guideline “B” cases based on an undocumented family member can often be successfully overcome with the right strategy. Part of the reason for this is that foreign governments have less ability to exert leverage over someone not physically on their country’s soil.
Crime, Conduct and Complication
Guidelines “J” and “E” cases can be more challenging. Typically these cases arise where the security clearance holder has knowingly facilitated violations of the law (e.g. smuggling the family member across the border), is providing financial support for an illegal alien, or is harboring the illegal alien in violation of 8 U.S.C. § 1324 (See, for example, ISCR Case No. 03-08525)*. Security clearance case law shows that the government takes a firm line on harboring or otherwise supporting illegal aliens – even if the individual in question is the applicant’s spouse or child (See, for example, ISCR Case No. 07-07645). Applicants need to understand that recent Obama Administration policy changes (e.g. Deferred Action for Childhood Arrivals or “DACA”) are different than actual changes to federal law. No security clearance case law of which I am aware has yet addressed the recent Administration policy changes, and it is doubtful that the family member’s qualification under a provision like “DACA” would change the legal analysis. After all, even under such circumstances the applicant’s prior support for an undocumented family member was still illegal at the time it was occurring.
Sham Marriages: Easy to Spot and a Bad Idea
Another way security clearance applicants run into problems is through sham marriages designed to exploit immigration laws. This is an issue that is actually quite common, notwithstanding the severe criminal penalties that can result. Having been on both sides of the table – first as a government investigator and now as a defense attorney – in hundreds, if not thousands, of security clearance cases, I can tell you that sham marriages are fairly easy to identify. When they are identified, they are virtually insurmountable obstacles to a security clearance. In essence, the government views sham marriages as a calculated effort to circumvent U.S. law, something which is arguably indicative of a deeper disregard for rules and laws than a more spur-of-the-moment bad decision. For a fascinating example, check out ISCR Case No. 03-24891.
Not All Cases Are Created Equal
In light of the case law on this issue, it is clear that there is a real difference in the way the government views strictly Guideline “B” cases (i.e. cases in which the applicant had no control or involvement in the relative’s decision to break the law) and how it views cases that implicate Guidelines “E” and “J.” That being said, the “whole person” factor can be relevant even in cases that would, on their surface, seem to point towards a denial. A thorough analysis of the facts and law is critical in order to ascertain an individual applicant’s chances of success.
*All cited cases are available online at: http://www.dod.mil/dodgc/doha/industrial/
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
