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ISCR Case 16-03571.h1 — CASE

ISCR Case 16-03571.h1granted

Case Headnote

ISCR Case No. 16-03571.h1

grantedAug 2, 2017· Hon. Candace Le'i Garcia· hearing

Summary

A 29-year-old U.S. citizen and defense contractor was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons cited that her father-in-law, stepmother-in-law, and brother-in-law work for the Danish government, while her mother-in-law and stepfather-in-law are employed by the municipal school system in Denmark. Additionally, her husband is a Danish citizen, and her in-laws were aware of her application for a Department of Defense security clearance.

Disqualifying conditions under Adjudicative Guideline (AG) ¶ 7(a), AG ¶ 7(b), and AG ¶ 7(e) were raised. However, mitigating conditions under AG ¶ 8(b) were applied.

The clearance was granted because the applicant is a native-born U.S. citizen with strong ties to the United States. She possesses no foreign assets and has no intention of becoming a Danish citizen. Furthermore, her husband, though a Danish citizen, holds a permanent U.S. resident card and intends to remain in the U.S., demonstrating the applicant's commitment to U.S. interests.

Why the Applicant Prevailed

The applicant is a native-born U.S. citizen with strong ties to the United States.
She has no foreign assets and does not plan to become a Danish citizen.
The applicant's husband, a Danish citizen, has a permanent U.S. resident card and intends to remain in the U.S.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons Creating Potential Conflict of Interest
AG ¶ 7(e)raisedShared Living Quarters with Foreign Family Members

Mitigating

AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties

Key Rule Quoted

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

Procedural Posture

SOR issuedJan 30, 2017
Answer filedFeb 14, 2017
Hearing heldJun 28, 2017Applicant requested expedited hearing.
Decision dateAug 2, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of U.S. Citizenship and Residency in Security Clearance Decisions
Consideration of Familial Relationships in Assessing Foreign Influence Risks

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 in-laws who are Danish citizens, including some who work for the Danish government. The applicant's ties to the U.S. and her intent to remain in the country were significant factors in the decision. Ultimately, eligibility for access to classified information was granted.

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's father-in-law, stepmother-in-law, and brother-in-law work for the Danish government.	For Applicant	In Law in Foreign Country Immediate Family GOVT-AFFILIATED	Denmark	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.b	Applicant's mother-in-law and stepfather-in-law work for the municipal school system in Denmark.	For Applicant	In Law in Foreign Country Immediate Family	Denmark	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.c	Applicant's husband is a Danish citizen.	For Applicant	Spouse Dual or Foreign Citizen Immediate Family	Denmark	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.d	Applicant has never sponsored any of her in-laws to the United States.	For Applicant	Unspecified Foreign Relationship Other	—	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—
1.e	Applicant's in-laws are aware she is applying for a DOD security clearance.	For Applicant	Unspecified Foreign Relationship Other	—	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	—

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. 16-03571 ) Applicant for Security Clearance )

For Government: Robert Blazewick, Esq., Department Counsel For Applicant: Pro se

08/02/2017 ______________

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 January 30, 2017, 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 February 14, 2017, and requested a hearing before an administrative judge. The case was assigned to me on June 12, 2017. Applicant requested an expedited hearing and waived the 15-day hearing notice requirement.2 The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on June 14, 2017, scheduling the hearing for June 28, 2017.

I convened the hearing as scheduled. The Government’s discovery letter and exhibit list were appended to the record as Hearing Exhibits (HE) 1 and 2. Government Exhibits (GE) 1 and 2 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AE) A through O, which were admitted in evidence without objection. DOHA received the hearing transcript (Tr.) on July 7, 2017.

FINDINGS OF FACT

Applicant admitted all of the SOR allegations, but denied that they presented a security concern under Guideline B.3 Applicant is a 29-year-old technical advisor employed by a defense contractor since March 2015. She has never held a DOD security clearance.4

Applicant is a native-born U.S. citizen and resident. She obtained a high-school diploma in the United States in 2006, a bachelor’s degree from a U.S. university in 2010, and a master’s degree from a Swedish university in 2013. She is married to a Danish citizen and does not have any children. She and her husband recently purchased their residential condominium in the United States in February 2017.5

Applicant met her Danish husband in the United States in August 2008, when he spent a semester studying as a foreign exchange student at the same university Applicant was attending. After Applicant graduated in May 2010, she moved to Denmark to join him. They married in January 2015. In Denmark, Applicant worked for a United Nations organization and attended school for her master’s degree. She did not become a Danish citizen. In March 2015, Applicant moved back to the United States after accepting a position with her current employer. In February 2016, Applicant’s husband obtained a permanent U.S. resident card through Applicant’s sponsorship and moved to the United States. Applicant’s husband is aware she is applying for a DOD security clearance.6 Applicant’s father-in-law, stepmother-in-law, mother-in-law, stepfather-in-law, and brother-in-law are Danish citizens. Applicant’s father-in-law is 60 years old and her stepmother-in-law is 51 years old; they reside in Belgium. Applicant’s mother-in-law is 55 years old, her stepfather-in-law is 60 years old, and her brother-in-law is 30 years old; they reside in Denmark.7

Applicant’s father-in-law and stepmother-in-law are senior officials in the Danish government. Applicant stated that these are non-politically-appointed positions in Denmark, and both her father-in-law and stepmother-in-law are career government employees.8

Applicant’s brother-in-law works for the Danish defense ministry. Her mother-in- law and stepfather-in-law work for the municipal school system. Applicant was unsure whether her mother-in-law and stepfather-in-law receive any benefits from the Danish government as a result of their employment with the municipal school system.9

Applicant first met her husband’s family in 2009, when she traveled to Denmark to visit her husband. She saw her in-laws once monthly when she and her husband lived together in Denmark from May 2010 to March 2015. She saw her father-in-law and stepmother-in-law less frequently after they moved to Belgium. After she moved to the United States in March 2015, Applicant saw her in-laws in Denmark when she traveled there to visit her husband twice in 2015. She also saw her in-laws in Denmark when she traveled there twice in 2016. Applicant and her husband saw her in-laws in Belgium when they traveled there in April 2016. In July 2016, her in-laws traveled to the United States to attend Applicant and her husband’s wedding celebration. In early 2017, Applicant’s mother-in-law and stepfather-in-law visited Applicant and her husband in the United States. Applicant has never sponsored any of her in-laws to the United States.10

Applicant’s husband has a good relationship with his family in Belgium and Denmark. Since moving to the United States in February 2016, he talks to them once to twice monthly; Applicant will also talk to her in-laws if she happens to be present, though her conversations with them are limited by her non-fluency in Danish. Applicant’s in-laws are aware she is applying for a DOD security clearance.11

Applicant and her husband intend to make the United States their home and build a family here. Applicant does not plan on becoming a Danish citizen. Since moving to the United States in February 2016, Applicant’s husband has worked as a consultant at an information technology company. He plans to renew his U.S. permanent resident card when it expires in 2018. Their assets in the United States, which include their home and personal savings, total approximately $440,000. Aside from living in her father-in-law’s home in Denmark from August 2013 to February 2015, Applicant has not received financial support from her foreign relatives. Applicant and her husband do not have any foreign assets. Applicant does not have any sympathy or preference for Denmark as a result of her in-laws.12

Applicant’s parents and sibling are native-born U.S. citizens and residents. Her grandfather worked for the U.S. Government, and his work resulted in Applicant’s father spending much of his childhood living abroad. Her parents instilled in her a love for traveling at a young age. These experiences inspired Applicant to pursue a career in international development. Applicant was unwavering in stating that her love for traveling and interest in further pursuing her career in international development should not be mistaken as loyalty towards any other country besides the United States. Her friends and coworkers attested that Applicant holds herself to high ethical standards.13

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 access to classified information will be resolved in favor of 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 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 (e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.

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 has a relationship with her in-laws through her husband. Her father-in- law, stepmother-in-law, and brother-in-law work for the Danish government. Her mother-in-law and stepfather-in-law work for the municipal school system in Denmark, and Applicant was unsure whether they receive any benefits from the Danish government as a result of their employment. Applicant’s foreign contacts 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(e) 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; and (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.

Applicant’s father-in-law, stepmother-in-law, and brother-in-law work for the Danish government. Applicant was unsure whether the employment of her mother-in- law and stepfather-in-law in the municipal school system in Denmark results in their receipt of benefits from the Danish government. Accordingly, AG ¶ 8(a) is not established for the reasons set out in the above discussion of AG ¶¶ 7(a) and 7(b).

Applicant has a relationship with her in-laws through her husband. He has a good relationship with his family. Since moving to the United States in February 2016, he talks to them once to twice monthly, he and Applicant visited the family in Belgium in April 2016, and Applicant’s in-laws visited her and her husband in the United States in July 2016 and early 2017. AG ¶ 8(c) is not established.

Applicant is a native-born U.S. citizen and resident. She received her formal education in the United States. Her parents and one sibling are native-born U.S. citizens and residents. Her grandfather worked as an overseas employee of the U.S. Government, inspiring her to pursue a career in international development. Applicant and her husband intend to make the United States their home and build a family here. They have financial interests in the United States and do not have any foreign assets. Applicant did not become nor plans to become a Danish citizen. Through her sponsorship, Applicant’s husband received a permanent U.S. resident card in February 2016 and moved to the United States. He has since worked as a consultant at an information technology company. He intends to renew the card when it expires. Applicant met her burden to demonstrate that she would resolve any conflict of interest in favor of the U.S. interest. AG ¶ 8(b) is 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 Directive, E3.1.8. 3 Applicant’s response to the SOR. 4 The DOD revoked Applicant’s interim DOD security clearance when it issued the SOR. Tr. at 14-57; GE 1-2; AE A-O. 5 Tr. at 14-57; GE 1-2; AE A-O. 6 Tr. at 14-57; GE 1-2; AE A-O. 7 Tr. at 14-57; GE 1-2; AE A-O. 8 Tr. at 14-57; GE 1-2; AE A-O. 9 Tr. at 14-57; GE 1-2; AE A-O. 10 Tr. at 14-57; GE 1-2; AE A-O. 11 Tr. at 14-57; GE 1-2; AE A-O. 12 Tr. at 14-57; GE 1-2; AE A-O. 13 Tr. at 14-57; GE 1-2; AE A-O.