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ISCR Case 16-02629.h1 — CASE

ISCR Case 16-02629.h1granted

Case Headnote

ISCR Case No. 16-02629.h1

grantedOct 5, 2017· Hon. Candace Le'i Garcia· hearing

Summary

This case concerns a 50-year-old naturalized U.S. citizen, originally from India, who works as a quality assurance manager and was evaluated under Guideline B (Foreign Influence). The Statement of Reasons raised several concerns, including that her mother, brother, and two sisters are Indian citizens residing in India, and that she maintains contact with them. Additionally, the applicant and her husband purchased an apartment in India in 1996 and another in 2010 in the same building where her brother and sister own apartments. They also opened a bank account with a U.S. bank that operated in India.

Disqualifying conditions under Guideline B were considered, specifically AG ¶ 7(a), AG ¶ 7(b), and AG ¶ 7(f). However, the judge applied mitigating conditions AG ¶ 8(b) and AG ¶ 8(f). The applicant demonstrated strong ties to the United States, with no financial support obligations to her family in India, and had closed her foreign bank account.

Ultimately, the judge found that the applicant and her family are heavily invested in the U.S. and plan to retire there, demonstrating a commitment to national interests. Based on these factors, the applicant was GRANTED eligibility for a security clearance.

Why the Applicant Prevailed

The applicant is a naturalized U.S. citizen with significant ties to the United States.
She has no financial support obligations to her family in India and has closed her foreign bank account.
The applicant and her family are heavily invested in the U.S. and plan to retire there.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons
AG ¶ 7(f)raisedSubstantial Interests in a Foreign Country

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest
AG ¶ 8(f)appliedRoutine Nature of Foreign Interests

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 11, 2016
Answer filedNov 3, 2016
Hearing heldJul 19, 2017
Decision dateOct 5, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Ties in Security Clearance Decisions
Consideration of the Whole-person Concept in Adjudication.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the foreign influence security concerns related to her family ties in India and her property ownership there. The applicant was granted eligibility for access to classified information, as the judge concluded that any potential conflicts of interest could be resolved in favor of U.S. interests.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Home or Property · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's mother, brother, and two sisters are Indian citizens residing in India.	For Applicant	Parent in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest (f) substantial foreign business, financial, or property interests	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (f) foreign interests are minimal and could not be used to influence	Credited Deep U.S. Ties
1.b	Applicant maintains contact with her family in India.	For Applicant	Parent in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest (f) substantial foreign business, financial, or property interests	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (f) foreign interests are minimal and could not be used to influence	Credited Deep U.S. Ties
1.c	Applicant and her husband purchased an apartment in India in 1996 after they married.	For Applicant	Foreign Real Estate Financial or Property Interest	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest (f) substantial foreign business, financial, or property interests	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (f) foreign interests are minimal and could not be used to influence	Credited Deep U.S. Ties
1.d	In 2010, Applicant and her husband purchased an apartment in the same building in which her brother and sister own apartments.	For Applicant	Foreign Real Estate Financial or Property Interest	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest (f) substantial foreign business, financial, or property interests	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (f) foreign interests are minimal and could not be used to influence	Credited Deep U.S. Ties
1.e	Applicant and her husband opened a bank account with a U.S. bank that also operated in India.	For Applicant	Foreign Bank Account or Investment Financial or Property Interest	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest (f) substantial foreign business, financial, or property interests	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (f) foreign interests are minimal and could not be used to influence	Credited Deep U.S. Ties

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02629 ) Applicant for Security Clearance )

For Government: Gatha Manns, Esq., Department Counsel For Applicant: John V. Berry, Esq.

10/05/2017 ______________

STATEMENT OF CASE

______________

GARCIA, Candace Le’i, Administrative Judge:

Applicant mitigated the foreign influence security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On October 11, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B (foreign influence). The action was taken under Executive Order (Exec. Or.) 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 (AG).1 Applicant responded to the SOR on November 3, 2016, and requested a hearing before an administrative judge. The case was assigned to me on June 6, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on June 23, 2017, scheduling the hearing for July 19, 2017.

I convened the hearing as scheduled. The Government’s administrative notice request, discovery letter, and exhibit list were appended to the record as Hearing Exhibits (HE) 1 through 3. Government’s Exhibit (GE) 1 was admitted in evidence without objection. Applicant’s administrative notice request was appended to the record as HE A. Applicant testified, called three witnesses, and submitted Applicant’s Exhibits (AE) A through N, which were admitted in evidence without objection. DOHA received the hearing transcript (Tr.) on July 27, 2017.

FINDINGS OF FACT

Applicant admitted the SOR allegations in subparagraphs 1.a through 1.dand admitted in part, and denied in part, the SOR allegation in subparagraph 1.e.2 Applicant is a 50-year-old quality assurance manager employed by a defense contractor since January 2016. She worked for another defense contractor from January 2015 to January 2016, during which time she was granted eligibility for a public trust position in March 2015. She has never held a DOD security clearance.3

Applicant was born in India. She obtained a bachelor’s degree from an Indian university in 1987 and a diploma in business management from an Indian college in 1991. She immigrated to the United States in 2001. She was naturalized as a U.S. citizen and obtained a U.S. passport in 2010. She is married and has one adult child. Her husband and child are naturalized U.S. citizens residing in the United States. Applicant and her husband have owned their current home in the United States since 2013.4

Applicant’s mother, brother, and two sisters are Indian citizens residing in India. Applicant’s mother is 76 years old. She is in poor health and lives with Applicant’s elder sister. Applicant’s mother is a homemaker and has never been affiliated with the Indian government or military. She supports herself through a pension from investments Applicant’s grandfather made when he was alive and worked as a tax consultant. Applicant does not provide her mother with financial support. Applicant last saw her mother when she visited India in 2014. She also saw her mother during trips to India in 2007, 2010, and 2011. Through Applicant’s sponsorship, her mother also visited Applicant in the United States in 2007 and 2014. Applicant talks to her weekly. She is not aware Applicant is seeking a security clearance.5

Applicant’s brother is 48 years old. He works as a senior business development manager for a private company. He has no affiliations with the Indian government or military. Applicant talks to him once every three to six months, primarily about their mother’s health. He is not aware Applicant is seeking a security clearance.6

Applicant’s elder sister is 52 years old. As of January 2016, she worked for a life insurance company. Her husband is retired from music recording. Their adult child works in a pharmacy. None of them are affiliated with the Indian government or military. Applicant talks to her elder sister weekly, primarily about their mother’s health. Applicant’s elder sister, husband, and child are not aware Applicant is seeking a security clearance.7

Applicant’s younger sister is 46 years old and divorced. She works as a secretary. She is not affiliated with the Indian government or military. Applicant has a distant relationship with this sister, and exchanges greetings with her primarily during festive occasions.8

Applicant and her husband purchased an apartment in India in 1996 after they married. They purchased it for $11,000 USD. The value as of the hearing was approximately $40,000 USD. They wanted to sell this apartment when they moved to the United States, but when Applicant’s mother-in-law died in 2002 the apartment became her father-in-law’s primary residence. Since his passing in 2016, the apartment has been vacant. Applicant’s elder sister maintains it by occasionally checking on it. Applicant and her husband intend to sell this apartment. They have not yet sold it because they need to be in India to do so. They anticipate selling it when they visit India in the summer of 2018.9

In 2010, Applicant and her husband purchased an apartment in the same building in which her brother and sister own apartments. They purchased this apartment for $40,000 USD, and the value as of the hearing was approximately $50,000 USD. Their intention in purchasing this apartment was for Applicant’s mother to move into it, as the local municipality had declared the building in which she then lived as unfit. Due to health issues, her mother instead moved in with Applicant’s elder sister. Since they purchased it, the apartment has been vacant. Applicant and her husband intend to sell it in the future.10

In 2007, Applicant and her husband opened a bank account with a U.S. bank that also operated in India, allowing them to remit money to Applicant’s mother and father-in- law in India in case of medical emergency. They reported this bank account in their relevant U.S. tax returns. They closed this bank account in November 2016, upon Applicant’s receipt of the SOR. In doing so, they transferred the balance of approximately $30,000 USD to Applicant’s mother. Neither Applicant nor her husband have any other foreign bank accounts.11

Applicant has reported all of her foreign trips to her security office. She stated that she would immediately report any approach by a foreign contact. She takes her allegiance to the United States very seriously. She, her husband, and her son are engrained into the social fabric in the United States. The majority of their social contacts and friends are in the United States. Applicant and her husband are heavily invested in the United States and plan on retiring here. In addition to the home in which they have lived since 2013, Applicant and her husband continue to own and rent out the first home they purchased in 2004. They also have substantial retirement assets in the United States. Their combined assets in the United States total $1.2 million. Other than their two properties in India, which have a combined value of $90,000 USD, Applicant and her husband do not have any other financial interests in India. Her supervisor testified that Applicant is a hard worker and displays good ethical behavior. Her coworker testified that Applicant has great integrity. Her character references describe her as a trustworthy individual.12

India

The Office of the National Counterintelligence Executive in its 2009 to 2011 report to Congress stated that the intelligence services, private sector, and citizens of dozens of countries, including U.S. allies and partners, target sensitive U.S. economic information and technology. It identified in its 2008 annual report to Congress on foreign economic collection and industrial espionage, India and seven other countries as being involved in economic and industrial espionage. An earlier version of the report named India as among the most active collectors of U.S. economic and proprietary information. The most heavily targeted sectors include aeronautics, information systems, lasers and optics, sensors, and marine systems. The information and communications technology sector will likely remain one of the highest priorities of foreign collectors, and foreign entities are expected to continue their efforts to collect information on the full array of military technologies in use or under development. The U.S. Department of Justice has identified numerous recent criminal cases concerning export enforcement related to proprietary defense information, economic espionage, theft of trade secrets, and embargo-related criminal prosecutions involving both the government of India and private companies and individuals in India. Illegal technology transfers, even to private Indian entities, are a significant concern because foreign government entities have learned to capitalize on private-sector technology acquisitions.

Anti-Western terrorist groups, including some on the U.S. Government’s list of foreign terrorist organizations, are active in India. Throughout 2015, India continued to experience terrorist attacks, including operations launched by terrorist groups based in Pakistan. In its March 2017 worldwide travel caution, the U.S. Department of State continued to warn U.S. citizens that India continues to experience terrorist and insurgent activities that may affect U.S. citizens directly or indirectly.

India also continues to experience significant human rights abuses. The U.S. Department of State reported in March 2017 that India’s most significant human rights problems were police and security forces abuses, including extrajudicial killings, torture, and rape; corruption which remained widespread and contributed to ineffective responses to crime, including those against women and children; and societal violence based on gender, religious affiliation, and caste or tribe. Other human rights problems included disappearances, hazardous prison conditions, arbitrary arrest and detention, and lengthy pretrial detention. Rape, domestic violence, dowry-related deaths, honor killings, sexual harassment, and discrimination against women and girls remain serious problems. Crimes against women are common. Contributing to these abuses is a lack of accountability for misconduct at all levels of government, resulting in a culture of widespread impunity.

POLICIES

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(a), 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.”

Directive ¶ E3.1.14 requires the Government to 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 Exec. Or. 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B, Foreign Influence

The security concern for foreign influence is set out in AG ¶ 6:

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. The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are potentially applicable in 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 nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable 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 upon the government, or the country is known to conduct intelligence operations against the United States. In considering the nature of the government, an administrative judge must also consider any terrorist activity in the country at issue. See generally ISCR Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) (reversing decision to grant clearance where administrative judge did not consider terrorist activity in area where family members resided).

AG ¶ 7(a) requires substantial evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government.

Applicant closed the account she and her husband opened in 2007 with a U.S. bank that also operated in India. However, her family and two properties in India create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. AG ¶¶ 7(a), 7(b), and 7(f) have been raised by the evidence.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable:

(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;

(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.

Applicant maintains contact with her family in India. Accordingly, AG ¶¶ 8(a) and 8(c) are not established for the reasons set out in the above discussion of AG ¶¶ 7(a) and 7(b).

Applicant, her husband, and her son have made the United States their home since they immigrated here in 2001. They are naturalized U.S. citizens and have used their U.S. passports to travel to India. While Applicant and her husband have two properties in India, they are more heavily and significantly invested in the United States. They intend to retire in the United States. Applicant met her burden to demonstrate that she would resolve any conflict of interest in favor of the U.S. interest and that her two properties in India are unlikely to result in a conflict and could not be used to influence, manipulate, or pressure her. AG ¶¶ 8(b) and 8(f) are established.

WHOLE PERSON CONCEPT

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 guidelines and the whole-person concept.

I have incorporated my comments under Guideline B in my whole-person analysis. After weighing the disqualifying and mitigating conditions under Guideline B, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the foreign influence security concerns. Accordingly, I conclude she has carried her burden of showing that it is clearly consistent with the national interest to grant her eligibility for access to classified information.

FORMAL FINDINGS

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 B: For Applicant

Subparagraphs 1.a - 1.e: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Candace Le’i Garcia Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Applicant’s response to the SOR. 3 Tr. at 18-73, 92-115; GE 1. 4 Tr. at 18-74, 92-115; GE 1; AEs A-C, G-H. Applicant, her husband, and their child have used their U.S. passports for foreign travel since becoming naturalized U.S. citizens. While they use their Indian identification cards along with their U.S. passports when they travel to India, they are not Indian citizens and do not hold Indian passports. Tr. at 18-74, 92-115; GE 1; AEs A-C. 5 Tr. at 18-74, 92-115; GE 1. 6 Tr. at 18-74, 92-115; GE 1. 7 Tr. at 18-74, 92-115; GE 1. 8 Tr. at 18-74, 92-115; GE 1. 9 Tr. at 18-74, 92-115; GE 1; AEs D, E. 10 Tr. at 18-74, 92-115; GE 1; AE F. 11 Tr. at 18-74, 92-115; GE 1; AEs J, L, N. 12 Tr. at 77-115; GE 1; AEs G, H, I, K, M.