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ISCR Case 16-03970.h1 — CASE

ISCR Case 16-03970.h1granted

Case Headnote

ISCR Case No. 16-03970.h1

grantedSep 7, 2017· Hon. Mark W. Harvey· hearing

Summary

This case concerns a 52-year-old defense contractor employee who was granted a security clearance despite initial concerns under Guideline B (Foreign Influence). The Statement of Reasons (SOR) alleged that the applicant had numerous family members, including her mother, father, brother, mother-in-law, and other relatives, who are citizens and residents of India. These connections raised disqualifying conditions under Adjudicative Guideline (AG) paragraph 6.

However, the judge applied mitigating conditions under AG paragraph 8, ultimately concluding that the security concerns were resolved. The decision highlighted that the applicant's ties to the United States were stronger than her connections to India. Crucially, none of the family members listed in the SOR were employed by the Indian government, which significantly reduced the potential for foreign influence.

Furthermore, the applicant did not own property or hold any financial interests in India. Based on these factors, the judge determined that the foreign influence concerns were sufficiently mitigated, and the applicant was granted eligibility for access to classified information.

Why the Applicant Prevailed

The applicant's connections to the U.S. were greater than her connections to India.
None of the applicant's family members listed in the SOR were employed by the Indian government.
The applicant does not own property or have financial interests in India.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign Influence

Mitigating

AG ¶ 8appliedMitigating ConditionsThe applicant's family members are not employed by the Indian government and she has significant ties to the U.S.

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedFeb 14, 2017
Answer filedMar 6, 2017
Hearing heldJul 17, 2017Applicant waived her right to 15 days of notice.
Decision dateNot specified

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Evaluation of Family Ties and Their Impact on Security Clearance Decisions
Consideration of Applicant's Connections to the U.S. Versus Foreign Connections

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's connections to India, primarily through her family, raised foreign influence concerns. However, the applicant's strong ties to the United States, including her citizenship and the absence of any family members employed by the Indian government, led to a conclusion that these concerns were mitigated. Ultimately, the applicant was granted eligibility for access to classified information.

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. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother, father, brother, mother-in-law, siblings-in-law, and other more distant relatives, such as an uncle and grandmother, are citizens and residents of India.	For Applicant	Parent in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	—	(e) promptly complied with reporting requirements	Claimed Deep U.S. Ties
1.b–1.e	4 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—

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. 16-03970 ) ) Applicant for Security Clearance

For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se

09/07/2017 __________

STATEMENT OF CASE

__________

HARVEY, Mark, Administrative Judge:

Applicant’s connections to India are through her birth in India, and her and her husband’s relatives who are citizens and residents of India. She and her husband have frequent contacts with some of her Indian relatives. She owns no properties in India, and none of her family members listed on the statement of reasons (SOR) are employees of the Indian government. Applicant, her spouse, and her children are not citizens of India. They are citizens and residents of the United States. Applicant’s connections to the United States are greater than her connections to India. Foreign influence security concerns are mitigated. Eligibility for access to classified information is granted.

Statement of the Case

On September 16, 2015, Applicant completed and signed a Questionnaire for National Security Positions (e-QIP) (SF 86) (SCA). (Government Exhibit (GE) 1) On February 14, 2017, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued an SOR to her, alleging security concerns under Guideline B (foreign influence). (Hearing Exhibit (HE) 2) The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on September 1, 2006. The SOR further informed Applicant that, based on information available to the Government, DOD adjudicators could not make the affirmative finding that it is clearly consistent with national security to grant or continue Applicant’s security clearance, and it recommended that her case be submitted to an administrative judge for a determination whether her clearance should be granted, continued, denied, or revoked. (HE 2)

On March 6, 2017, Applicant responded to the SOR, and she requested a hearing. (HE 3) On April 10, 2017, Department Counsel was prepared to proceed. On April 24, 2017, the Defense Office of Hearings and Appeals (DOHA) assigned the case to me. On July 5, 2017, DOHA issued notice of the hearing, setting the hearing for July 17, 2016. Applicant waived her right to 15 days of notice of the date, time, and location of her hearing. (Tr. 14-15) The hearing was held as scheduled. I received the transcript of the hearing on July 19, 2017.

While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1

PROCEDURAL RULINGS

At the hearing, Department Counsel offered two exhibits, and Applicant offered four exhibits. (Tr. 17-18; GE 1-2; Applicant Exhibits (AE) A-D) There were no objections, and I admitted all proffered exhibits into evidence. (Tr. 17-19; GE 1-2; AE A-D)

Department Counsel requested administrative notice (AN) of facts concerning India. (Tr. 17; HE 4) The request lists supporting documents to show detail and context for those facts. Department Counsel’s AN request is quoted at pages 5-7 infra, with footnotes in the original omitted, and some minor grammatical changes were made to the text. I also included some basic information from official U.S. Government websites as HE 5 in the first two paragraphs.2 AG ¶ 6, Foreign Influence, provides, “Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.” A risk assessment in this case necessitates administrative notice of facts concerning India.

Administrative or official notice is the appropriate type of notice used for administrative proceedings. See ISCR Case No. 05-11292 at 4 n.1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004) and McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986)). Usually administrative notice at ISCR proceedings is accorded to facts that are either well known or from government reports. See Stein, ADMINISTRATIVE LAW, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice).

Findings of Fact3

The SOR alleges Applicant’s mother, father, brother, mother-in-law, siblings-in- law, and other more distant relatives, such as an uncle and grandmother, are citizens and residents of India. Applicant’s SOR response admitted the allegations in SOR ¶¶ 1.a through 1.e. (HE 3) Her admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, I make the following findings of fact.

Applicant is a 52-year-old employee of a defense contractor who has worked in quality testing for the previous six years. (Tr. 7, 9; GE 1) Prior to 2015, she worked for her employer on non-defense contracts. (Tr. 9) She was born in India. (GE 1) In 1979, she graduated from high school in India. (Tr. 7) In 1989, she received a bachelor’s degree in India, and in 1992, she received a master’s degree in India. (Tr. 8) In 1992, she married, and her children are ages 13 and 19. (Tr. 8-9) She has not served in the United States or Indian military. (Tr. 9)

In 1997, Applicant emigrated from India to the United States. (Tr. 19) In January 2005, Applicant and her husband were naturalized as U.S. citizens. (Tr. 20; AE D) In 2001, she and her husband purchased their home in the United States. (Tr. 20) Two of Applicant’s sisters and one brother are U.S. citizens, and they reside in the United States. (Tr. 24-25)

Applicant’s mother and father are citizens and residents of India, and she communicates with her parents on a weekly basis. (Tr. 20-23) Her father is a retired engineer who receives a pension from the Indian government. (Tr. 22, 33) Her mother does not work outside of her home. (Tr. 20) Four out of five of their children live in the United States, and her parents travel to the United States almost on an annual basis. (Tr. 21) The last time they visited the United States was from January 2016 to January 2017. (Tr. 21-23) Applicant’s 94-year-old grandmother is a citizen and resident of India. (Tr. 23, 28) She has visited Applicant in the United States about 10 times. (Tr. 23, 29) She does not work outside of her home. (Tr. 24) She lives with Applicant’s parents, and she travels with them to the United States. (Tr. 29)

Applicant’s brother is a physician in India. (Tr. 25) He has one son, who is attending a university in the United States. (Tr. 25-26) She communicates with her brother about four times a year. (Tr. 26)

Applicant’s father-in-law was a farmer, and he has passed away. (Tr. 24) Her mother-in-law is a citizen and resident of India. (SOR response) She communicates with her mother-in-law about twice a month. (Tr. 24) Her husband has two siblings who are citizens and residents of India. (Tr. 26-27) The Indian government does not employ her husband’s brothers or his sisters-in-law. (Tr. 26-27) Her uncle is a citizen and resident of India, and he is a retired farmer. (Tr. 28) Applicant does not own any property or have any investments in India. (Tr. 29-30) She visited India in 2008, 2009, 2012, 2013, and 2015. (Tr. 30) She does not intend to visit India in 2017. (Tr. 30) The duration of her stays in India are two to three weeks, and she visits her relatives in India. (Tr. 31) She does not send any funds to family living in India. (Tr. 31) Her husband sends about $500 annually to relatives living in India. (Tr. 31-32) Under Indian law, dual citizenship is not permitted.4 Applicant, her spouse, and her children are U.S. citizens and not citizens of India.

Character Evidence

Applicant’s manager described her as diligent, honest, pleasant, and trustworthy. (Tr. 37-38) Her program manager lauded her reliability, honesty, and compliance with rules and procedures. (AE B) Her director described her as professional, diligent, honest, generous, and responsible. (AE A) Their statements support approval of her access to classified information. There are no allegations of rule or security violations, arrests, illegal drug possession or use, or alcohol-related incidents.

India

India is a multiparty, parliamentary democracy with a population of approximately 1.2 billion people. The U.S. and India share common values including the rule of law, respect for diversity, and democratic government. The U.S. Department of State reported in 2012 that bilateral defense and counterterrorism cooperation between the U.S. and India had grown to reach unprecedented levels. In 2009, the United States and India launched the U.S.-India Strategic Dialogue, which is a bilateral forum focused on strengthening cooperation between the two countries in several areas, including energy, climate change, trade, education, and counterterrorism. The U.S. supports a reformed United Nations Security Council that includes India as a permanent member. The United States is one of India’s largest trade and investment partners. The United States supports India’s emergence as a rising world power. Recently, India has taken actions to ease travel between the United States and India.

On January 25, 2015, President Obama and Indian Prime Minister Modi held a joint press conference in India. They lauded the close and growing ties between the United States and India. President Obama emphasized the following elements of the United States—India relationship: (1) the natural partnership between two great democracies; (2) the new Declaration of Friendship formalizing that partnership; (3) increasing bilateral trade in goods and services between the two countries approaching $100 billion; (4) breakthroughs in nuclear cooperation; (5) additional export reforms; (6) pursuit of investment treaties; (7) launching joint projects to reduce pollution and slow climate change; (8) partnerships in security matters in Afghanistan and in preventing Iran from obtaining nuclear weapons; and (9) most importantly in the context of this case, deepening defense and security cooperation. On January 11, 2015, Secretary of State John Kerry underscored the positive aspects of the United States—India association, including the growing investments of Indian citizens in the United States (now 9 billion dollars), and U.S. citizens’ investments in India (now 28 billion dollars).

The 2008 Annual Report to Congress on Foreign Economic Collection and Industrial Espionage identifies India, along with seven other countries, as being involved in economic and industrial espionage. Consistent with the findings of the Office of the National Counterintelligence Executive, the most heavily targeted sectors include aeronautics, information systems, lasers and optics, sensors, and marine systems. An earlier version of the annual report to Congress named India as being among the most active collectors of U.S. economic and proprietary information.

In its 2009-2011 Report to Congress, the Office of the National Counterintelligence Executive reported that sensitive U.S. economic information and technology are targeted by the intelligence services, private sector, and citizens of dozens of countries, including U.S. allies and partners. Indeed, “[s]ome U.S. allies and partners use their broad access to U.S. institutions to acquire sensitive U.S. economic and technology information, primarily through aggressive elicitation and other human intelligence (HUMINT) tactics. Some of these states have advanced cyber capabilities.”

* * *

According to the U.S. Department of Justice, there have been numerous, recent criminal cases concerning export enforcement, economic espionage, theft of trade secrets, and embargo-related criminal prosecutions involving both the government of India and private companies and individuals in India.[5] In April 2016, the former owner of a New Jersey defense contracting business was sentenced to 57 months in prison for conspiring to send sensitive military technical data, including thousands of technical drawings of defense hardware items and sensitive military data, to India. In January 2013, the former export control manager of a U.S. company was sentenced to 42 months in prison after illegally exporting microwave amplifiers to India. These amplifiers are controlled for national security reasons due to their applications to military systems, including radar jamming and weapons guidance systems. . . .

Anti-Western terrorist groups, including some on the U.S. Government’s list of foreign terrorist organizations, are active in India, including Islamist extremist groups such as Harkat-ul-Jihad-i-Islami, Harakat ul-Mujahidin, India Mujahideen, Jaish-e- Mohammed, and Lashkar-e Tayyiba (LeT). In December 2015, news media reported that Indian officials identified former Uttar Pradesh resident Sanaul Haq (aka Maulana Asim Umar) as the head of al-Qa’ida in the Indian Subcontinent (AQIS).

Throughout 2015, India continued to experience terrorist attacks, including operations launched by Maoist insurgents and transnational groups based in Pakistan. In August 2015, two LeT terrorists attacked a border security force convoy in Udhampur, Jammu and Kashmir (northern India), killing two security force personnel. In July 2015, three LeT terrorists in Army fatigues fired on a bus and attacked a police station in Gurdaspur, Punjab (northwest India), killing 4 police officers and 3 civilians, and injuring 15 others. In June 2015, tribal guerillas in Manipur (northeastern India) used rocket-propelled grenades and improvised explosive devices to attack a military convoy headed for Imphal, killing 20 Indian soldiers and injuring another 11. In January 2015, Maoists in Chhattisgarh (central India) killed a constable and seriously injured three other individuals.

Other incidents include: a series of bomb blasts at an election rally in Patna, the capital city of Bihar (eastern India), in October 2013 that killed 6 and injured 85; a series of explosions at the Mahabodhi Temple in Bodhgaya (Bihar, in eastern India) in July 2013; an explosion in Bangalore (also called Bengalure), the capital of Karnataka (southern India) in April 2013 that injured 16; and twin bombings near a bus stop and commercial area in Hyderabad, the capital city of Telangana (central/southern India) in February 2013 that killed 17 and injured 119. Maoist extremist groups are active in east central India and have a long history of conflict with state and national authorities. The northeastern states of India experience frequent incidents of violence by ethnic insurgent groups. Additionally, certain parts of India are designated “restricted areas” by the Indian government and require special advance permission to visit.

The South Asian Terrorism Portal, run by the nonprofit Institute for Conflict Management, reported fatalities in 2016 due to terrorism and insurgency in India (other than Maoist extremism) including 145 civilians, 114 security force members, and 324 terrorists or insurgents.

In its current worldwide travel caution, the Department of State warns U.S. citizens that India continues to experience terrorist and insurgent activities that may affect U.S. citizens, directly or indirectly. The Indian states of Jammu and Kashmir remain unstable, and a number of terrorist groups operate there, particularly along the Line of Control separating Indian and Pakistani-controlled Kashmir. The State Department strongly recommends avoiding travel to the states of Jammu and Kashir. As of July 2016, the Internal Displacement Monitoring Center estimated that the current conflicts and instability in India have displaced 3.7 million persons. Additionally, “[t]ens of thousands of Kashmire Pandits (Hindus) have fled the Kashmir Valley to Jammu, Delhi, and other areas in the country since 1990 because of conflict and violent intimidation . . . by Kashmiri separatists.”

India also continues to experience significant human rights abuses. According to the U.S. Department of State, the most significant human rights problems in India, according to its March 2017 annual human rights report for India, were “police and security force abuses, including extrajudicial killings, torture, and rape; corruption which remained widespread and contributed to ineffective responses to crime, including those against women, children, and members of Scheduled Castes (SC) or Schedule Tribes (ST); 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, and resulting in a culture of widespread impunity, is “[a] lack of accountability for misconduct at all levels of government.” Investigations and prosecutions of individual cases took place in 2016, but “lax enforcement, a shortage of trained police officers, and an overburdened and under resourced court system contribute to infrequent convictions.” Deaths of individuals in police custody, allegedly due to police torture and beatings, were reported during 2016. There were also reports that “police failed to file required arrest reports for detained persons, resulting in hundreds of unresolved disappearances;” that police raped male and female detainees; that police held suspects without registering their arrests and denied detainees sufficient food and water; and that police detained individuals for custodial interrogation without identifying themselves or providing arrest warrants.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information. Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, the Secretary of Defense, and DNI have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Foreign Influence

AG ¶ 6 explains the security concern about foreign influence 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.

AG ¶ 7 indicates three conditions that could raise a security concern and may be disqualifying 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.

Applicant was born and educated through her master’s degree in India. Her husband was born in India. Her mother, father, brother, mother-in-law, siblings-in-law, and other more distant relatives, such as an uncle and grandmother, are citizens and residents of India. She has frequent6 contact with her parents and several other relatives residing in India.

She visited India in 2008, 2009, 2012, 2013, and 2015. She does not intend to visit India in 2017. The duration of her stays in India are two to three weeks, and she visits her relatives in India.

Applicant lives with and is close to her spouse. Her spouse has relatives living in India. There is a rebuttable presumption that a person has ties of affection for, or obligation to, their immediate family members. See generally ISCR Case No. 01-03120, 2002 DOHA LEXIS 94 at *8 (App. Bd. Feb. 20, 2002). “[A]s a matter of common sense and human experience, there is [also] a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of the person’s spouse.” ISCR Case No. 07-17673 at 3 (App. Bd. Apr. 2, 2009) (citing ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002)). This concept is the basis of AG ¶ 7(e). Indirect influence from a spouse’s relatives living in India could result in a security concern. In addition, Applicant has ties of affection to some relatives in India even through her communications are infrequent. See ISCR Case No. 09-05812 at 2 (App. Bd. Dec. 1, 2011) (finding “presence in India of close family members, viewed in light of that country’s troubles with terrorism and its human rights abuses, and her sharing living quarters with a person (his wife) having foreign family contacts, establish the ‘heightened risk’” in AG ¶¶ 7(b) and 7(e)).

Applicant’s relationships with residents of India create a concern about Applicant’s “obligation to protect sensitive information or technology” and her desire to help relatives living in India. For example, if terrorists, government officials, or other entities in India wanted to expose Applicant to coercion, they could exert pressure on her relatives living in India. Applicant would then be subject to coercion through her connections to India and classified information could potentially be compromised.

Applicant and her spouse’s possessions of close family ties with their families living in India, is not, as a matter of law, disqualifying under Guideline B. However, if an applicant or their spouse has a close relationship with even one relative, living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001).

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 or inducement. 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 collection operations against the United States. The relationship of India with the United States, places some, but not an insurmountable burden of persuasion on Applicant to demonstrate that her and her spouse’s relationships with family members living in India do not pose a security risk. Applicant should not be placed into a position where she might be forced to choose between loyalty to the United States and a desire to assist relatives in India.

Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified 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). Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. See ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002).

While there is no evidence that intelligence operatives or terrorists from India seek or have sought classified or economic information from or through Applicant, her spouse, or their relatives living in India, nevertheless, it is not possible to rule out such a possibility in the future. International terrorist groups are known to conduct intelligence activities as effectively as capable state intelligence services, and India has a problem with terrorism. Applicant and her spouse’s relationships with family members living in India create a potential conflict of interest because these relationships are sufficiently close to raise a security concern about her desire to assist relatives in India by providing sensitive or classified information. Department Counsel produced substantial evidence of Applicant and her spouse’s relationships with their families living in India. Department Counsel has raised the issue of potential foreign pressure or attempted exploitation, and further inquiry is necessary about potential application of any mitigating conditions.

AG ¶ 8 lists six conditions that could mitigate foreign influence security concerns including:

(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 U.S.;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., 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;

(d) the foreign contacts and activities are on U.S. Government business or are approved by the cognizant security authority;

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; 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.

The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶¶ 8(a) and 8(c) have some applicability. Applicant has infrequent contacts with some of her relatives living in India. Applicant’s spouse has relatives living in India. Loyalty to, support for, and connections to family are positive character traits. However, for security clearance purposes, those same relationships negate the possibility of full mitigation under AG ¶ 8(a), and Applicant failed to fully meet her burden of showing there is little likelihood that her relationships with relatives in India could create a risk for foreign influence or exploitation.

AG ¶ 8(b) applies. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant has significant connections to the United States. In 1997, Applicant emigrated from India to the United States, and in January 2005, Applicant and her husband were naturalized as U.S. citizens. In 2001, she and her husband purchased their home in the United States. Applicant’s two children, two sisters, and one brother are U.S. citizens, and they reside in the United States.

When Appellant took an oath and swore allegiance to the United States, as part of her naturalization as a U.S. citizen, and when she volunteered to assist the U.S. Government as a contractor, she manifested her patriotism, loyalty, and fidelity to the United States over all other countries. When she and her husband became U.S. citizens they lost their citizenship to India because India does not recognize dual citizenship.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by her relationships with family living in India. There is no evidence, however, that terrorists, criminals, the Indian government, or those conducting espionage have approached or threatened Applicant, her spouse, or their relatives living in India to coerce Applicant for classified or sensitive information.7 As such, there is a reduced possibility that Applicant, her spouse, or their relatives living in India would be specifically selected as targets for improper coercion or exploitation. Of course, the primary risk to their relatives living in India is from terrorists and other lawless elements and not the Indian government.

While the U.S. Government does not have any burden to prove the presence of such evidence, if such record evidence were present, Applicant would have a heavier evidentiary burden to mitigate foreign influence security concerns. It is important to be mindful of the United States’ sizable financial and diplomatic investment in India. Applicant and her spouse’s relatives living in India could become potential targets of terrorists because of Applicant’s support for the United States, and Applicant’s potential access to classified information could theoretically add some risk to them from lawless elements in India.

AG ¶¶ 8(d), 8(e), and 8(f) do not apply. The U.S. Government has not encouraged Applicant’s involvement with anyone living in India. Applicant is not required to report her contacts with citizens or residents of India. Applicant does not own property or have investments in India to compare with her investments in the United States. Her husband’s financial support provided to his family in India is minimal.

In sum, Applicant and her spouse’s connections to their relatives living in India are significant. They are sufficiently close to family in India to raise a security concern. She traveled to India in 2008, 2009, 2012, 2013, and 2015. Security concerns are not analyzed in a piecemeal assessment. Instead, the overall situation must be considered. Applicant’s spouse, two children, and three siblings are citizens and residents of the United States. Applicant’s parents and other more distant relatives are citizens and residents of India. Applicant and her spouse have financial connections to the United States including their employment and home. They have no investments in India. Foreign influence security concerns under Guideline B are mitigated. Even if foreign influence security concerns were not mitigated under AG ¶¶ 6-8, security concerns would be mitigated under the whole-person concept, infra.

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 the 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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration” of the guidelines and the whole-person concept. My comments under Guideline B are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline but some warrant additional comment. Applicant is a 52-year-old employee of a defense contractor who has worked in quality testing for the previous six years. She was born in India and educated through the master’s degree level in India. In 1997, she emigrated from India to the United States. In January 2005, Applicant and her husband were naturalized as U.S. citizens. In 2001, she and her husband purchased their home in the United States. Her children, two of her sisters, and one brother are U.S. citizens, and they reside in the United States.

Applicant’s mother and father and several other of her or her husband’s relatives are citizens and residents of India, and she and her husband frequently communicate with several of them. She and her husband are close to their family members living in India. She traveled to India in 2008, 2009, 2012, 2013, and 2015. The Indian government does not employ any of her SOR-listed family members.

The general sense of the statements of Applicant’s manager, director, and program manager is that Applicant complies with procedures and rules. She is professional, generous, diligent, honest, pleasant, and trustworthy. There are no allegations of rule or security violations, arrests, illegal drug possession or use, or alcohol-related incidents.

I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude that foreign influence security concerns are mitigated. It is clearly consistent with the interests of national security to grant Applicant security clearance eligibility.

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 to 1.e: For Applicant

CONCLUSION

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

__________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf.

2 U.S. Department of State, U.S. Relations With India, Bureau of South and Central Asian Affairs, Fact Sheet (Oct. 9, 2015), http://www.state.gov/r/pa/ei/bgn/3454.htm. The White House website, Office of the Press Secretary, U.S.-India Joint Statement, “Shared Effort; Progress for All,” (Jan. 25, 2015), https://www.whitehouse.gov/the-press-office/2015/01/25/us-india-joint-statement-shared-effort-progress- all. (HE 5) Central Intelligence Agency website, The World Factbook, India, https://www.cia.gov/library/publications/the-world-factbook/geos/in.html. (HE 5) 3 To protect Applicant and her family’s privacy, the facts in this decision do not specifically describe employment, names of witnesses, and names of other groups or locations. The cited sources contain more specific information. 4 See Embassy of the United States, New Delhi, India, Dual Nationality: India and the United States, http://newdelhi.usembassy.gov/acsdualnation.html. (HE 5) 5 There is no evidence that Applicant or any of her family members are or were involved in any criminal activity. As such this paragraph has limited relevance. 6See ISCR Case No. 09-03114 at 2-3 (App. Bd. Oct. 22, 2010) (contact once a month is considered to be “frequent” under AG ¶¶ 7 and 8). 7 There would be little reason for U.S. enemies to seek classified information from an applicant before that applicant has access to such information or before they learn of such access.