ISCR Case No. 20-02888

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 20-02888 ) Applicant for Security Clearance ) Appearances For Government: John Lynch, Esq., Department Counsel For Applicant: Pro se 04/17/2023

BENSON, Pamela C., Administrative Judge: Although Applicant successfully refuted the foreign preference security concerns, he did not fully mitigate the personal conduct or foreign influence security concerns. Eligibility for access to classified information is denied. Statement of the Case On March 26, 2021, the Defense Counterintelligence and Security Agency (DCSA) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline E (personal conduct), Guideline B (foreign influence) and Guideline C (foreign preference). This action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines implemented by the DOD on June 8, 2017. Applicant responded to the SOR and requested a hearing. The case was assigned to me on January 23, 2023. On February 24, 2023, a notice of hearing was issued, scheduling the hearing for March 15, 2023. The video-teleconference hearing proceeded

as scheduled using Microsoft Teams. Department Counsel submitted two documents, which I admitted into evidence as Government Exhibits (GE) 1 and 2, without objection. In addition, Department Counsel submitted an April 2022 disclosure letter and a seven- page request for administrative notice of facts concerning the Federal Republic of Nigeria, with supporting documents. I admitted the disclosure letter, marked as hearing exhibit (HE) 1, and the entire packet of administrative notice documents as HE 2, without objection. Applicant testified, and he did not submit any documents with his SOR response or during the hearing. I held the record open until March 29, 2023, to provide either party an opportunity to supplement the evidentiary record. Immediately after the hearing, Applicant submitted documentation of his father’s obituary and funeral service, which I marked as Applicant’s Exhibit (AE) A and entered into evidence without objection. Due to this information, Department Counsel requested that SOR ¶ 2.f be withdrawn from the SOR, which I granted without objection. I received the hearing transcript (Tr.) on March 22, 2023, and the record closed March 30, 2023. Administrative Notice I take administrative notice of facts concerning Nigeria. Those facts are set out in the Government’s Request for Administrative Notice for the Federal Republic of Nigeria (HE 2). The facts administratively noticed are limited to matters of general knowledge and matters not subject to reasonable dispute. The pertinent facts are as follows: Nigeria Nigeria is a federal republic composed of 36 states and the Federal Capital Territory. Nigeria faces many challenges fueled by sectarian, religious, and ethnic violence. Numerous terrorist groups are increasingly active throughout Nigeria. Threats of kidnapping and violence are high, and the Department of State warns U.S. citizens that all travel to Nigeria should be avoided. Of particular significance are the poor human rights record; the active and hostile presence of Boko Haram and ISIS-West Africa; and other insurgent and extremist groups that generate instability and openly attack police, security and military forces, the local populace, and U.S. citizens and interests. Nigeria is a global hub for cybercriminal activity. The U.S. has partnered with Nigerian law enforcement to crack down on cybercrime. U.S. authorities have brought charges against a number of Nigerian nationals for internet fraud and money laundering.

Applicant admitted all of the allegations contained in the SOR. His admissions are incorporated into the findings of fact below. Applicant is 42 years old. He married in 2011, and he has three children, ages 10, 8 and 5. He was born in Nigeria, and he immigrated to the United States in 2009, at the age of 28. He became a naturalized U.S. citizen in 2014, and his wife recently became a naturalized U.S. citizen too. He does not consider himself to be a dual citizen of Nigeria and the U.S. because he renounced his Nigerian citizenship after he became a U.S.

citizen. He traveled to Nigeria one time in 2018. He has been employed by a federal contractor since April 2015 as a database administrator. This is his first application for a DOD security clearance. (Tr. 16-18; GE 1) Personal Conduct The SOR alleges that Applicant allowed multiple business entities and individuals to deposit over $500,000 into his U.S. bank account(s), between February 2015 and September 2016. He did this at the request of his nephew, a dual citizen of Nigeria and Norway (also referenced by Applicant as his “cousin” because they are about the same age.) His nephew requested that Applicant transfer over $500,000 from his bank accounts to his nephew and to persons unknown to Applicant, and to business entities in Nigeria. (SOR ¶ 1.a.) Applicant admitted this allegation. (SOR response; Tr. 20-29, 62-65; GE 2) During Applicant’s background interview in July 2019, he was confronted by an authorized DOD investigator about his unusual financial activities. Applicant explained that his nephew and his half-brother told Applicant the money deposited into his U.S. bank accounts was going to be used to build renovations to the palace in his Nigerian hometown. His nephew owned the construction company, and he would be managing the construction work on the palace. His nephew wanted to deposit money into Applicant’s bank accounts and then transfer the money to Nigeria in order to get a better foreign exchange rate. Applicant gave his nephew his personal financial bank account numbers and routing numbers, which were then used by various unknown individuals and/or business entities. When Applicant’s bank accounts were closed by the U.S. banks due to this disconcerting activity, Applicant questioned his nephew and asked him to be honest about the money transfers. His nephew admitted that he had lied and there was never a plan to renovate the palace; the money transfers were all for the purpose of buying and selling money and exchanging foreign currency for profit. Applicant later learned that his nephew set up a Nigerian company, not for the purpose of construction, but for the business of buying and selling foreign currency. (SOR response; TR. 20-38, 62-65; SOR response) …my nephew sent the money to me because he’s going to get a better rate, transfer rate. You know, the exchange rate just in dollar. If you get dollar in Nigeria, you get a better exchange rate compared to when you send a Great Britain pound to Nigeria. So, the better rate, the dollars. That was the reason why he transferred it through me to send to Nigeria, I thought at that time. (Tr. 29) Applicant admitted during cross examination that he does not have a license as a foreign currency trader. He did not make any profit or charge an exchange fee for allowing his nephew and others to use his U.S. bank accounts. Some of the individuals who deposited money into his bank accounts were from multiple states in the U.S. He discovered that his nephew was buying the dollars from a third party who knew the depositors. Applicant never considered that his nephew was engaged in any form of criminal activity or money laundering. In about September 2016, Applicant and his nephew had to respond to inquiries by the Economic and Financial Crimes Commission

(EFCC) during the investigation of these financial transactions. This Nigerian commission is charged with the responsibility of investigation and enforcement of all economic and financial crimes laws in Nigeria. Applicant has not received any additional communication from the EFCC. He had completely forgotten about this information during his first background interview. (Tr. 29-38, 64; SOR response; GE 2) SOR ¶ 1.b alleges that on January 26, 2018, Applicant allowed an unknown person to deposit a total of $10,000 in two separate transactions into his bank account the same day. In his SOR response, Applicant admitted he had transferred this money at the request of his nephew into his nephew’s foreign entity created for the sole purpose of exchanging currency for profit. At the hearing, Applicant stated that his mother had passed away in 2009. In 2018, he and his family decided to create a memorial for his mother. Applicant had the money deposited into his bank account from unknown sources, and then he transferred the money to pay for his mother’s memorial. Applicant did not provide corroborating documentation to support his later inconsistent statement. (Tr. 38- 41; SOR Response; GE 2) Foreign Influence Under Guideline B, SOR ¶ 2.a repeated the allegation as set forth in SOR ¶ 1.a, but this allegation also alleged that in February 2018, Applicant loaned his nephew approximately $1,551. Applicant previously addressed the first part of this allegation, cited above. Applicant testified that after discovering his nephew had lied to him about raising money to renovate the palace and ultimately using his bank accounts for making a profit on the currency exchange rate, Applicant received a request from his nephew to loan him some money by transferring $1,500 into his nephew’s ex-spouse’s bank account. She was a resident of the U.S. Applicant did this because his nephew did not have money at the time, and his nephew’s ex-spouse needed money to care for a sick child. (SOR ¶ 2.d) (Tr. 41-44; SOR response) SOR ¶¶ 2.b and 2.c allege that in 2016 Applicant transferred (an unspecified amount of) money to one business entity, and he transferred $74,000 to another business entity, both located in Nigeria. Applicant testified that one of these entities is a gas station owned by his nephew. I assumed the other entity is the false construction entity his nephew used for the exchange of foreign currency. SOR ¶ 2.e alleged that Applicant maintains a bank account in Nigeria. At the hearing Applicant estimated that he had a total of $75 in this bank account. He disclosed this information on his security clearance application (SCA). (Tr. 44-45; GE 2; SOR response) SOR ¶ 2.g alleges that Applicant has three sisters, two brothers, and a stepbrother who are citizens and residents of Nigeria. SOR ¶ 2.h alleges that Applicant has a stepbrother who resides elsewhere. Applicant admitted the information at the hearing, and he also stated that he has a total of six half-brothers. His father had three wives, so basically, they are his half-brothers instead of stepbrothers, as alleged in the SOR and likewise listed on his SCA. After his father passed away in late December 2022, Applicant

claimed he has not spoken with any of his family members. One sister works as a mid- wife, and he was not certain if his other two sisters were employed. One brother sells food provisions, another brother is a farmer, and his oldest half-brother is a professor at a university in South Africa. He has occasionally sent money to these family members at their request. The last time he provided money occurred in February 2022 when he sent $125 to help pay for a family member’s hospital bill. None of his family members are associated with the Nigerian military or government. (Tr. 47-59, 64-66; GE 1, GE 2; SOR response) SOR ¶ 2.i alleges Applicant has two friends who are citizens and residents of Nigeria. He testified that he occasionally receives texts from these friends, but not on a regular basis. They both sent their condolences to Applicant after his father passed away in December 2022. He does not believe his friends are associated with the Nigerian military or government. (Tr. 54-59; GE 2; SOR response) Foreign Preference The SOR also alleges Guideline C security concerns based on Applicant’s banking transactions, as set forth in subparagraph 1.a, above, were conducted to finance the renovation of a palace in his hometown in Nigeria. (SOR ¶ 3.a) In Applicant’s SOR response he admitted this information but denied he had personally contributed any money for the renovation of the palace. (SOR response)

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or

mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline E: Personal Conduct AG ¶ 15 expresses the security concern for personal conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified or sensitive information. Of special interest is any failure to provide truthful and candid answers during national security investigative or adjudicative processes. … AG ¶ 16 describes conditions that could raise a security concern and be disqualifying. The following is potentially applicable under the established facts in this case: (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. Applicant provided his personal bank information to his nephew and allowed unknown individuals and entities to deposit more than $500,000 into his U.S. bank accounts. He then transferred the money to his nephew and unknown individuals and entities from February 2015 until January 2018, as supported by the record evidence and Applicant’s admissions. AG ¶ 16(c) applies.

AG ¶ 17 provides conditions that could mitigate security concerns in this case: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and (g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. None of the mitigating conditions apply. Applicant’s involvement in funneling more than $500,000 through his U.S. bank accounts and into another country for a year-and- a-half is troubling. He did not question these transactions and allowed this practice to continue until the U.S. banks closed his bank accounts in about September 2016. He then questioned his nephew and discovered he had been manipulated and deceived. They both had to respond to investigative inquiries from the EFCC. In January 2018, Applicant had two unknown individuals transfer $10,000 into his bank account, and Applicant transferred $10,000 to his nephew’s foreign business entity that was created for the sole purpose of exchanging foreign currency for profit. At the hearing, Applicant provided an inconsistent and unsupported statement that the money was transferred to Nigeria to create a memorial to honor his mother on the 10th anniversary of her death. Applicant’s conduct continues to cast doubt on his reliability, trustworthiness, and good judgment. The personal conduct security concerns are not mitigated. Guideline B: Foreign Influence The security concern under this guideline is set out in AG ¶ 6 as follows: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and

interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. Three disqualifying conditions under this guideline (AG ¶ 7) are relevant to this case: (a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information or technology; and (f) substantial business, financial, or property interests in a foreign country, or in any foreign owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest. “The United States has a compelling interest in protecting and safeguarding [sensitive] information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). Not every foreign contact or tie presents the heightened risk under AG ¶ 7(a). The “heightened risk” denotes a risk greater than the normal risk inherent in having a family member or a spouse’s family member living under a foreign government. The nature and strength of the family ties or other foreign interests and the country involved (i.e., the nature of its government, its relationship with the United States, and its human rights record) are relevant in assessing whether there is a likelihood of vulnerability to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government; a family member is associated with, or dependent on, the foreign government; or the country is known to conduct intelligence operations against the United States. In considering the nature of the foreign government, the administrative judge must take into account any terrorist activity in the country at issue. See generally ISCR Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006). To establish AG ¶ 7(a), the Government must demonstrate a “heightened risk” of exploitation due to Applicant’s contacts with his family members in Nigeria. Given the activities of the Nigerian government and significant human rights violations, terrorist activities, cybercrime, and money laundering, I find the Government has established the

requisite “heightened risk” and potential conflict of interest regarding Applicant’s contacts with his family members in Nigeria. AG ¶¶ 7(a), 7(b), and 7(f) apply. The following mitigating conditions under this guideline (AG ¶ 8) are potentially relevant: (a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States; and (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; and (f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual. There is a rebuttable presumption that a person has ties of affection for, or obligation to, his or her immediate family members, and this presumption includes in- laws. ISCR Case No. 07-06030 at 3 (App. Bd. June 19, 2008); ISCR Case No. 05-00939 at 4 (App. Bd. Oct. 3, 2007) (citing ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002). Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with relatives who are citizens and residents of Nigeria. Although he claims to have infrequent contact with his family members after his father’s passing, this does not mean he has completely severed ties with his family members. He provided money a year ago to help pay for a family member’s hospital bill. Applicant’s financial support and contacts with relatives in Nigeria are manifestations of his care and concern for relatives living in that country. Applicant’s care and concern for relatives also includes his nephew, who manipulated Applicant into funneling more than half of a million dollars into his personal U.S. bank accounts. Applicant subsequently transferred this money to his nephew, his nephew’s false construction company in Nigeria, and to other individuals and entities unknown to Applicant. In this instance, Applicant was manipulated, and he was inclined

to help a foreign person, group, or organization, in a way that is inconsistent with U.S. interests or otherwise made him vulnerable to pressure or coercion by a foreign interest. Applicant testified that he was aware of Nigeria’s reputation for cybercrime activities and money laundering schemes, and in 2016, he was investigated for such crimes by the EFCC. In 2018, Applicant once again received deposits into his U.S. bank account from unknown persons and he transferred the $10,000 to his nephew’s company in Nigeria. He provided conflicting information about the reason for the exchange of $10,000. Based on these actions, I find that when it comes to members of his family, Applicant cannot be expected to resolve a conflict of interest in favor of the U.S. interest. Applicant’s connection with his nephew and his past financial activities demonstrates a potential conflict of interest that continues to raise significant foreign influence security concerns. AG ¶¶ 8(a), 8(b), 8(c), and 8(f) do not apply. Guideline C: Foreign Preference The security concern under this guideline is set out in AG ¶ 9 as follows: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual’s judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself; the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen’s exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship. The SOR alleged that Applicant believed the banking transactions were conducted to finance renovations of a palace in Nigeria, which he supported and was therefore a security concern. Applicant denied personally providing any money for this renovation project. Foreign Preference becomes a security concern when an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. In this instance, I do not find Applicant’s support of a renovation project for a palace in his hometown demonstrates a preference for Nigeria over the United States, or that his support of the renovation, even though it was later discovered to be a false project, conflicted with the national interests of the United States. Applicant has successfully refuted the foreign preference security concerns.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the adjudicative guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines E, B and C and the factors in AG ¶ 2(d) in this whole-person analysis. Applicant denied any involvement in money laundering when he provided his personal financial information to his nephew and other unknown sources. He had over $500,000 deposited into these accounts, and he transferred the money to his nephew, other individuals, and foreign entities for a year-and-a-half. He denied receiving any money for conducting these banking transactions. Common sense dictates that Applicant either knew, or should have known, that this type of activity and the significant amount of money funneled into his bank accounts should have raised some serious concerns. He was aware of Nigeria’s notoriety for cybercrimes and money laundering, and he was contacted by the EFCC concerning his financial activities. There is insufficient evidence in the record to mitigate Applicant’s continued involvement with the transfer of $10,000 from his bank account to his nephew’s foreign business in 2018. I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Although Applicant successfully refuted foreign preference security concerns, I conclude personal conduct and foreign influence concerns are not mitigated. Eligibility for access to classified information is denied.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline E: AGAINST APPLICANT Subparagraphs 1.a and 1.b.: Against Applicant Paragraph 2, Guideline B: AGAINST APPLICANT Subparagraphs 2.a-2.e, and 2.g-2.i.: Against Applicant

_______________________ Subparagraph 2.f.: Withdrawn Paragraph 3, Guideline C: FOR APPLICANT Subparagraph 3.a.: For Applicant

In light of all of the circumstances presented by the record in this case, I conclude that it is not clearly consistent with national security to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. Pamela C. Benson Administrative Judge