Earlier this year I wrote an article that discussed the impacts on federal security clearance of living with or financially supporting (“harboring”) an illegal alien. The article, like many of those I write, was based upon questions that my law firm frequently receives from federal employees, members of the military, and federal contractors. Subsequently, an additional nuance has arisen for the first time in a case: President Obama’s “Deferred Action for Childhood Arrivals” (DACA) program. Does temporary status under DACA resolve the security concerns?
U.S. CITIZENSHIP NON-NEGOTIABLE…MOST OF THE TIME
To start, let’s look at the DACA participant directly. An individual who received a reprieve from deportation under DACA should understand that such an administrative action is temporary and not to be misconstrued as a form of citizenship. U.S. citizenship is required for access to classified information unless under the rare circumstance of a “Limited Access Authorization” (LAA) – wherein a U.S. government official certifies that there are no U.S. citizens reasonably qualified and available to perform the work, and even then there are strict limitations on the individual’s access. Thus, a reprieve from deportation under DACA would not generally allow the affected individual the ability to apply for a security clearance him/herself.
However, the question remains as to whether a U.S. citizen harboring a DACA participant is eligible for a security clearance. The short answer is probably still a “no”, although there are conceivably some circumstances where such a case could be won.
ONE ISSUE, TWO CONCERNS
A hypothetical case involving a security clearance applicant harboring a DACA participant would be evaluated from two separate angles: criminal conduct (Guideline J) and foreign influence (Guideline B). Depending upon when the applicant began harboring the DACA participant (i.e. before or after DACA status was granted), the applicant could be deemed to have been engaged in criminal conduct by previously harboring an illegal alien. That would be viewed as a security risk. More broadly, the fact that DACA status does not equate to citizenship means that a mere administrative reprieve from deportation does nothing to resolve the underlying issue of foreign influence. Foreign influence is essentially the idea that the applicant is bound by affection, obligation, or influence to someone who may not be loyal to the United States, thereby potentially dividing the applicant’s own loyalties. That is a difficult security hurdle to overcome when the applicant is living with or otherwise supporting the foreign national.
Of course, there are conceivably cases where the foreign influence concerns are mitigated. For example, a U.S. citizen who is merely roommates (i.e. not cohabitants) with a DACA participant may be able to overcome the concerns, as could conceivably a U.S. citizen who is related to the DACA participant solely by marriage. Such cases would require an individual evaluation of the facts and circumstances in order to render an opinion.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
