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ISCR Case 12-12243.h1 — CASE

ISCR Case 12-12243.h1denied

Case Headnote

ISCR Case No. 12-12243.h1

deniedSep 12, 2016· Hon. Mark W. Harvey· hearing

Summary

A 68-year-old U.S. citizen and defense contractor, originally from India, was denied the maintenance of his security clearance under Guidelines B (Foreign Influence) and E (Personal Conduct). The denial stemmed from concerns regarding his foreign connections and a failure to disclose these ties in a previous security clearance application (SCA) dated December 28, 2011.

Specifically, the applicant's spouse is a citizen of India and a U.S. permanent resident, and also serves as the resident director in India for Company AB. The applicant is the majority shareholder of Company A, the U.S.-based parent company of two Indian-based entities, Companies AB and AC. He is also the managing director and chairman of the board for Company AB, which supplies electronic components to Company A for use in Department of Defense equipment. The applicant receives income from Company AB.

Further concerns included the applicant's ongoing contacts with foreign government officials, foreign defense industry experts, and foreign business contacts. His sister is also a citizen and resident of India. The judge determined that the applicant did not provide sufficient mitigating evidence for these foreign influence and personal conduct concerns, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant failed to disclose significant foreign connections in his security clearance application.
The applicant's spouse is a citizen of India and a director of a company that operates in India, raising foreign influence concerns.
The applicant has ongoing business relationships and contacts with foreign nationals and government officials.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign Influence
AG ¶ 15raisedPersonal Conduct

Procedural Posture

SOR issuedMay 20, 2015
Answer filedJun 11, 2015Applicant requested a hearing.
Hearing heldJul 13, 2016
Decision dateSep 12, 2016

Cite For

Foreign Influence Concerns Related to Foreign Citizenship of a Spouse
Failure to Disclose Foreign Business Interests in Security Clearance Applications
Impact of Ongoing Foreign Contacts on Security Clearance Eligibility

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: denied

The judge found against the applicant on several allegations related to foreign influence, particularly concerning ties to India, including his spouse's citizenship and his business connections. The applicant's failure to disclose these connections and the potential risks associated with them led to the denial of his security clearance.

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. Children · 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 spouse is a citizen of India and a permanent resident of the United States	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	India HEIGHTENED RISK	Admitted	—	—	—
1.b	Applicant is the majority shareholder of Company A, which is the U.S.-based, parent company of Companies AB and AC, which are both based in India, and he is the managing director and chairman of the board of Company AB	Against Applicant	Foreign Real Estate Business or Professional Associate	India HEIGHTENED RISK	Admitted	—	—	—
1.c	His spouse is the resident director in India of Company AB	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	India HEIGHTENED RISK	Admitted	—	—	—
1.d	Company AB provides electronic components to Company A for use in DOD equipment	For Applicant	Unspecified Foreign Relationship Business or Professional Associate	India HEIGHTENED RISK	Denied	—	—	—
1.e	He has ongoing contacts with foreign government officials	Against Applicant	Foreign Government Contact Other GOVT-AFFILIATED	India HEIGHTENED RISK	Denied	—	—	—
1.f	He has ongoing contacts with foreign defense industry experts	Against Applicant	Business Associate in Foreign Country Business or Professional Associate	India HEIGHTENED RISK	Admitted	—	—	—
1.g	He receives income from Company AB	For Applicant	Foreign Employment or Pension Financial or Property Interest	India HEIGHTENED RISK	Denied	—	—	—
1.h	Applicant’s sister is a citizen and resident of India	Against Applicant	Sibling in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	—	—	—
1.i	He has ongoing contacts with foreign business contacts	Against Applicant	Business Associate in Foreign Country Business or Professional Associate	India HEIGHTENED RISK	Admitted	—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegations under Guideline E, specifically regarding failure to disclose foreign connections in his security clearance application. The applicant's lack of candor in his responses to the security questionnaire contributed to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	He failed to disclose his connections to India relating to Company AB in his December 28, 2011 SCA.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Foreign Contacts or Interests	Denied	—	—	—
2.b–2.c	2 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant		Foreign Contacts or Interests		—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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. 12-12243 ) ) Applicant for Security Clearance

For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: John P. McDonnell, Esq.

09/12/2016 __________

STATEMENT OF CASE

__________

HARVEY, Mark, Administrative Judge:

Applicant failed to submit sufficient evidence to mitigate foreign influence and personal conduct security concerns. Eligibility for access to classified information is denied.

Statement of the Case

On December 28, 2011, Applicant completed and signed an Electronic Questionnaires for Investigations Processing (e-QIP) (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 1). On May 20, 2015, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to him, alleging security concerns under Guidelines B (foreign influence) and E (personal conduct). (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 the national interest to grant or continue Applicant’s security clearance, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be granted, continued, denied, or revoked. (HE 2)

On June 11, 2015, Applicant responded to the SOR, and he requested a hearing. (HE 3) On October 26, 2015, Department Counsel was prepared to proceed. On January 14, 2016, the Defense Office of Hearings and Appeals (DOHA) assigned the case to another administrative judge, and on April 7, 2016, the case was transferred to me for administrative reasons. On June 20, 2016, DOHA issued a notice of the hearing, setting the hearing for July 13, 2016. The hearing was held as scheduled. On July 20 and 22, 2016, Applicant and Department Counsel submitted additional documents and argument concerning the scope of administrative notice. (AE J-AE W; GE 5) I received the transcript of the hearing on July 21, 2016.

PROCEDURAL RULINGS

At the hearing, Department Counsel offered four exhibits, and Applicant offered nine exhibits. (Transcript (Tr.) 15-17, 24-26, 40; GE 1-4; AE A-AE I) Applicant objected to the admissibility of GE 3, information from the internet about Applicant’s company, based on lack of authenticity and reliability. (Tr. 16) I deferred the decision on the admissibility of GE 3 (Tr. 17) and subsequently sustained the objection to admissibility. Applicant objected to taking administrative notice of “secondary hearsay” and “speculation” in GE 4, the Government Administrative Notice request. (Tr. 17; AE J-AE W) Evidence that is secondary hearsay and speculation is not admitted. For example, speculation about India being ranked as a higher threat to commit industrial espionage than other countries is given no weight whatsoever. Applicant did not object to any other specific statements in Department Counsel’s administrative notice (AN) request. (AE J) There were no other objections, and I admitted all other proffered exhibits into evidence. (Tr. 23, 26-27, 40; GE 1-2, 5; AE A-AE W)

Department Counsel requested AN of facts concerning India. (Tr. 15-23; GE 4) The request listed supporting documents to show detail and context for those facts. Department Counsel’s AN request is quoted at pages 7-8 infra, with footnotes in the original omitted. Department Counsel and Applicant had no objection to consideration of information from State Department documents. (Tr. 23) The first two paragraphs were based primarily on administrative notice of State Department documents and one White House document admitted as HE 4, as well as the information Applicant submitted.1 (AE Q, R, S, U, V, W) 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 Fact2

The SOR alleges: Applicant’s spouse is a citizen of India and a permanent resident of the United States (¶ 1.a); Applicant is the majority shareholder of Company A, which is the U.S.-based, parent company of Companies AB and AC,3 which are both based in India, and he is the managing director and chairman of the board of Company AB (¶ 1.b); His spouse is the resident director in India of Company AB (¶ 1.c); Company AB provides electronic components to Company A for use in DOD equipment (¶ 1.d); He has ongoing contacts with foreign government officials (¶ 1.e), foreign defense industry experts (¶ 1.f), and foreign business contacts (¶ 1.i); He receives income from Company AB (¶ 1.g); Applicant’s sister is a citizen and resident of India (¶ 1.h); and He failed to disclose his connections to India relating to Company AB in his December 28, 2011 SCA (¶¶ 2.a-2.c). Applicant’s SOR response admitted the allegations in SOR ¶¶ 1.a, 1.b, 1.c, 1.f, 1.h, and 1.i. (HE 3) He denied the allegations in SOR ¶¶ 1.d, 1.e, 1.g, 2.a, 2.b, and 2.c. He also admitted some of the underlying facts in the paragraphs in the SOR allegations he denied. His 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 68-year-old defense contractor, who is seeking to continue his access to classified information. (Tr. 26; GE 1) He was born in India. (GE 1) In 1969, he received a bachelor’s degree in engineering in India. (GE 1) In 1969, Applicant came to the United States when he was 22 years old on a student visa. (Tr. 26; GE 2) In 1971, he received a master’s degree in electrical engineering at a U.S. university. (Tr. 26; GE 1) He has never served in the U.S. military. (GE 1) He has held a security clearance since the mid-1970s. (Tr. 27) In 1974, he married, and in 1982, he divorced. (GE 1) In 1982, he married his spouse. (Tr. 36) In 1982, he became a U.S. citizen. (GE 2) In 1996, Applicant’s parents passed away, and his spouse’s parents have also passed away. (Tr. 35-36) In 1975, his child was born in India, and in 1984, his second child was born in the United States. (GE 1) His children live in the United States. (GE 1) His oldest child is employed by Company A. (GE 1) Applicant said his current net worth is about $10,000,000. (GE 2 at response to question 21)

Applicant’s spouse was born in India. (GE 2) She is a permanent resident of the United States. (GE 2) “India law required that for an entity to operate within India, one of the Directors of said entity must be a citizen of India.” (SOR response at 2) She needed to retain her Indian citizenship and not become a U.S. citizen because Applicant wanted her to be the resident director of Company AB. (Tr. 59; SOR response at 2; GE 2) His spouse “does not actively participate in the operations” of Companies A and AB. (SOR response at 2) She has one sister living in India. (Tr. 36) In 2009, she had a heart attack, and she has a pacemaker. (Tr. 36-37) She requires dialysis three times a week, and she has not traveled to India for five years. (Tr. 36-37) In response to the question about why his spouse did not become a U.S. citizen, Applicant explained if she became a U.S. citizen, he would possibly have to sell Company AB. (Tr. 80)

Four or five years ago, Applicant was traveling to India three or four times a year. (Tr. 35) In the last four years, Applicant traveled to India once a year. (Tr. 36, 75) He explained that he went to India among other reasons “to see either current or prospective customers, who naturally [are] foreign nationals.” (GE 2 at 11) He has not visited his sister for five years. (Tr. 36) He communicates with his sister once or twice every two or three months on the telephone. (Tr. 36; GE 2)

In 1980, Applicant cofounded Company A. (Tr. 28, 46) In 1995, the cofounder of Company A retired, and Applicant became the president of Company A. (Tr. 46) About 15 people currently own shares in Company A. (Tr. 46) Applicant owns more than 90 percent of the shares of Company A. (Tr. 47) His company provides critical electronic components to the DOD and other agencies of the U.S. Government. (Tr. 27-28) Company A owns more than 90 percent of Company AB, and this ownership was disclosed in Company A’s Standard Form (SF) 328s. (Tr. 49; AE B) Applicant is the managing director and chairman of the board of Company AB. (SOR response at 2)

Company AB is a functioning company based in India. (Tr. 31) Applicant said Company AB was not used to produce parts that go into any products that were sold to U.S. customers. (Tr. 43) Most of Company AB’s business from the mid-1990scame from India. (Tr. 43) Company AB’s work for the U.S. Government complied with United States and India’s export rules. (Tr. 43-44) His family members do not own stock in Company AB. (Tr. 31) Company AB’s manufacturing space is about 7,000 square feet, and four engineers some technicians and “diploma holders” are employed at AB. (Tr. 43, 45) The total number of employees in Company AB is about 30. (Tr. 76) In the 1980s, Applicant completed an SF 328 for Company A, which discloses ownership and involvement of foreign companies with Company A. (Tr. 32; AE C) Company A’s 1980 and 2006 SF 328sdisclosed ownership of Company A’s stock in Company AB and indicated more than 30 percent of Company A’s income was from foreign sources. (Tr. 32-33) Company A’s 2006 SF 328 states, “In all cases, [Company A] gets firm, fixed price and delivery sales orders from [Company AB and other foreign companies]. None of the products supplied are nuclear related. Also, none of these orders involve access to classified information.” (AE D) In his 2001 and 2006 SF 328s, Applicant disclosed that he spends 30 to 45 minutes per business day on the telephone conducting business with his Indian companies. (AE C; AE D)

Applicant admitted that he meets with individuals who manage foreign defense companies; however, he denied he met with “foreign defense industry experts” because the term “expert” in his SCA is not defined. (SOR response ¶ 1.f)

In 1997, Applicant hired a colleague he knew since college to be the general manager of Company AB, and his colleague has continued as general manager for 19 years. (Tr. 50) The general manager of Company AB lives in India. Company A sends items to India; Company AB assembles the items into a product; and Company AB’s product is imported into the United States. (Tr. 51, 55) There is no tariff if the product is imported into India from the United States, assembled in India, and exported from India into the United States. (Tr. 65) Company A provides salaries to employees at Company AB. (Tr. 52) In Applicant’s 2006 SF 328, he said Company A’s total income in fiscal year 2005 was about $10.24 million. (AE D) He said the current gross of Company AB is about $10 million, which is about half of its gross ten years ago. (Tr. 76) In 2009, Company AB began paying Applicant a monthly salary of $1,612; in 2011, his salary increased to $3,224; and in 2013, his monthly salary decreased to $322. (SOR response ¶ 1.g) Company AB performs contracts for the Indian military; however, Applicant “claimed he does “not have contact with foreign government officials.” (Tr. 78; SOR response ¶ 1.e) In another sentence in the same paragraph, he said, “I do not have ongoing contacts with foreign government officials.” (SOR response ¶ 1.e) The amount of salary Applicant received relating to Company AB’s foreign military contracts was not presented.

Under Indian law, dual citizenship is not permitted.4 (Tr. 59) Applicant is a U.S. citizen, and he is not a citizen of India. (SOR response)

Personal Conduct

Applicant’s December 28, 2011 SCA asked in Section 19, Foreign Contacts:

Do you have, or have you had, close and/or continuing contact with a foreign national within the last seven (7) years with whom you, or your spouse, or cohabitant are bound by affection, influence, common interests, and/or obligation? Include associates as well as relatives, not previously listed in section 18. (SOR ¶ 2.a; GE 1) His December 28, 2011 SCA asked in Section 20A, Foreign Activities:

Have you, your spouse, cohabitant, or dependent children EVER had any foreign financial interests (such as stocks, property, investments, bank accounts, ownership of corporate entities, corporate interests or businesses) in which you or they have direct control or direct ownership? (Exclude financial interests in companies or diversified mutual funds that are publicly traded on a U.S. exchange.)

(SOR ¶ 2.b; GE 1) His December 28, 2011 SCA asked in Section 20B, Foreign Business, Professional Activities, and Foreign Government Contacts:

Have you in the past seven (7) years provided advice or support to any individual associated with a foreign business or other foreign organization that you have not previously listed as a foreign employer?

(SOR ¶ 2.c; GE 1)

On May 3, 2012, Applicant told an Office of Personnel Management (OPM) investigator that Company A owns a subsidiary in India, and his spouse is the manager of the company in India. (GE 2) Company A “maintains all foreign affairs, but he personally does not have any foreign financial interests.” (GE 2) He did not disclose to the OPM investigator that he was the managing director and chairman of the board of Company AB, and he receives substantial income from Company AB. (GE 2) When he responded to DOHA interrogatories, he clarified that when he travels to India, he meets with foreign national customers or foreign customers. (GE 2)

Applicant said that when he was completing his December 28, 2011 SCA, he was responding as an individual and not as an employee of Companies A and AB. (Tr. 33, 49; GE 2) He separated his role as an employee of Companies A and AB from his role as a private person, and he interpreted the questions about foreign business interests to be whether he or his spouse have any interest in foreign companies unrelated to their Company A ownership. (Tr. 34, 49-50; GE 2; SOR response) He and his spouse do not own any stock in Company AB in their personal capacities. (Tr. 49- 50)

In 2012, 2014, and 2016, the Defense Security Service (DSS) wrote that Company A “has an effective program for protecting classified information and [his] security program is in compliance with current directives.” (Tr. 35; AE F-AE H) His facility received a “SATISFACTORY” rating. (AE F-AE H)

Character Evidence

A high-level corporate official for a large defense contractor, who is now retired, has worked with Applicant for more than 35 years, provided a character reference letter on Applicant’s behalf. (Tr. 39-40; AE I) He described Applicant as honest, reliable, capable, responsible, and trustworthy. (AE I)

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, and June 7, 2016, President Obama and Indian Prime Minister Modi held joint press conferences. They lauded the close and growing ties between the United States and India. They 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. This includes expansion of co- production and co-development of technologies under the Defense Technology and Trade Initiative. 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).

U.S. economic information and technologies are targeted by the intelligence services, private sector, and citizens of dozens of . . . countries. There are U.S. allies and partners that 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 tactics. A foreign business competitor or foreign government intent on illegally acquiring a company’s proprietary information and trade secrets may wish to place a spy in a company or recruit an existing employee to gain access to non-public information. Allegiance to a country other than the United States may increase the likelihood that an employee will spy against his employer. At one point in time, India was specifically named as one of the most active collectors of U.S. economic and proprietary information in a National Counterintelligence Center survey of nearly one dozen Fortunate 500 companies. In recent years, there have been several criminal cases dealing [with] export enforcement, economic espionage, theft of trade secrets and embargo-related criminal prosecutions that involve the Indian government, as well as private companies and individuals associated with India . . . .5

India is one of the most persistently targeted countries by insurgents and domestic and transnational terrorist groups. The Indian states of Jammu and Kashmir remain unstable and foreigners are particularly visible, vulnerable, and at risk of being the victims of violence in the area, which has been known to include killings of armed forces personnel, police, government officials, and civilians. A number of terrorist groups operate in the area particularly along the Line of Control separating Indian and Pakistani-controlled Kashmir. 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.

According to the State Department, the most significant human rights problems in India as of 2015 involved police and security force abuses, including extrajudicial killings, torture, and rape; widespread corruption that contributed to ineffective responses to crime, including those against women and members of scheduled castes or tribes; 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 and denial of due process. Rape, domestic violence, dowry-related deaths, honor killings, sexual harassment, and discrimination against women also remain serious societal problems.

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 and the Secretary of Defense 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 contacts and interests” stating:

[I]fthe individual has divided loyalties or foreign financial interests, [he or she] may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. 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.

AG ¶ 7 indicates four conditions that could raise a security concern and may be disqualifying in this case:

(a) contact 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 sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information;

(d) sharing 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; and

(e) a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation.

Applicant was born and educated through his bachelor’s degree in India. His spouse and sister are citizens of India, and his sister is a resident of India. He has infrequent6 contact with his sister. He is the majority shareholder of Company A, which is the U.S.-based, parent company of Company AB, which is based in India, and he is the managing director and chairman of the board of Company AB. His spouse is the resident director in India of Company AB. Company A receives electronic components from Company AB for use in DOD equipment. He has contacts with foreign government officials, and he has foreign business contacts. He receives income from Company AB.

Applicant has substantial property interests in India which could subject him to a heightened risk of foreign influence or exploitation. See generally ISCR Case No. 12- 00120 (App. Bd. Feb. 10, 2014) (affirming denial of security clearance because of applicant’s connections to India and noting administrative judge’s findings of heightened risk in relation to family relationships and property interests of $340,000 in India). See also 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 his sharing living quarters with a person (his wife) having foreign family contacts, establish the ‘heightened risk’” in AG ¶¶ 7(b) and 7(e)). Applicant lives with and is close to his spouse. 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(d). Indirect influence through Applicant’s spouse to Applicant could result in a security concern. In addition, Applicant has ties of affection to his sister even through his communications with her are infrequent.

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

Applicant and his spouse’s possessions of ties to India, are 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, or a serious financial interest 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 his connections to India do not pose a security risk. Applicant should not be placed into a position where he might be forced to choose between loyalty to the United States and a desire to assist relatives or preserve or enhance property 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 or utilized his connections to India to pressure him, nor is there evidence of threats against Company AB or its employees, 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’s connections to India create a potential conflict of interest because these connections are significant enough to raise a security concern about his desire to preserve or enhance Company AB by providing sensitive or classified information. Department Counsel produced substantial evidence of Applicant’s connections to India and has raised the issue of potential foreign pressure or attempted exploitation. 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).

Applicant is credited with mitigating SOR ¶ 1.d. Company AB assembles components for Company A, and then Company A provides the products to DOD. Applicant’s decisions to assemble equipment in India, which are destined to be provided to DOD, do not cause a security concern without evidence of an adverse effect on national security or the national interest. Other DOD contractors utilize foreign sources for DOD materials, and this fact alone is insufficient to establish a security concern.

SOR ¶ 1.falleges Applicant has contacts with foreign defense experts. Applicant did not elaborate on the degree of expertise required for his contacts in India to be a “foreign defense industry expert” and based on his denial of contacts with high-level experts, SOR ¶ 1.fis mitigated.

Applicant is credited with mitigating SOR ¶ 1.h. Applicant has infrequent contacts with his sister living in India. He is not close to her. He has much stronger family connections to family living in the United States.

Applicant has “deep and longstanding relationships and loyalties in the U.S.” In 1969, Applicant came to the United States when he was 22 years old on a student visa. In 1971, he received a master’s degree in electrical engineering at a U.S. university. He has held a security clearance since the mid-1970s. In 1982, he became a U.S. citizen. His two children live in the United States, and his second child was born in the United States. Applicant said his current net worth is about $10,000,000. When he took an oath and swore allegiance to the United States, as part of his naturalization as a U.S. citizen, and when he volunteered to assist the U.S. Government as a contractor, he manifested his patriotism, loyalty, and fidelity to the United States over all other countries. When he became a U.S. citizen he lost his 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 connections to India. There is no evidence, however, that terrorists, criminals, the Indian Government, or those conducting espionage have approached or threatened Applicant, his spouse, or their relatives living in India to coerce Applicant for classified or sensitive information. As such, there is a reduced possibility that Applicant, his 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 his spouse’s relatives living in India or employees of Company AB 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(f) does not fully apply. Applicant did not provide a valuation of Company AB. Without more evidence, it is not possible to compare his investments in India with his investments in the United States. Applicant did not meet his burden of establishing application of AG ¶ 8(f).

SOR ¶¶ 1.a, 1.b, 1.c, 1.e, 1.g, and 1.i are not mitigated. The amount of contacts Applicant has with foreign government officials and business contacts in India is unclear. His 2006 SF 328, the most recent one he provided, indicated he has daily contact with colleagues in India. Applicant has not met his burden of showing these contacts are minimal or that they have ended. Company AB sells to or assembles components for the Indian military. He has contacts with customers to maintain his business enterprise in India. Applicant failed to fully meet his burden of showing there is little likelihood that his connections in India could create a risk for foreign influence or exploitation. Foreign influence security concerns under Guideline B are not mitigated.

Personal Conduct

AG ¶ 15 expresses the security concern pertaining to personal conduct:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . used to conduct investigations . . . [or] determine security clearance eligibility or trustworthiness.7

Applicant’s December 28, 2011 SCA in Section 19, Foreign Contacts asks, “Do you have, or have you had, close and/or continuing contact with a foreign national within the last seven (7) years with whom you, or your spouse . . . are bound by . . . common interests, and/or obligation?” (SOR ¶ 2.a; GE 1) His SCA in Section 20A, Foreign Activities asks, “Have you, your spouse . . . EVER had any foreign financial interests (such as stocks, property, investments, bank accounts, ownership of corporate entities, corporate interests or businesses) in which you or they have direct control or direct ownership?” (SOR ¶ 2.b; GE 1) His SCA in Section 20B, Foreign Business, Professional Activities, and Foreign Government Contacts asks, “Have you in the past seven (7) years provided advice or support to any individual associated with a foreign business or other foreign organization that you have not previously listed as a foreign employer?” (SOR ¶ 2.c; GE 1)

Applicant was well aware that he had a substantial interest in Company AB located in India. He was the managing director and chairman of the board of Company AB. He controlled Company A, and Company A controlled Company AB. Applicant provided advice and support to the resident manager and employees of Company AB. I do not find his statement that he did not need to disclose his interest in Company AB on his SCA because his control of Company AB was as a professional and employee of Company A to be an honest, reasonable, or valid basis for not disclosing requested information. Applicant understood that the DOD was seeking specific information about his connections to business and government entities in India. He knowingly and intentionally chose not to disclose his connections to Company AB. AG ¶ 16(a) is established.

AG ¶ 17 provides seven conditions that could mitigate security concerns in this case:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

In his December 28, 2011 SCA, Applicant deliberately and improperly denied that he had that he had the following connections in India in the previous seven years: (1) contacts with foreign nationals to whom he is bound by common interests or obligations; (2) direct ownership or control of foreign financial interests; and (3) provided advice or support to any individual associated with a foreign business. These false denials of connections to persons and entities in India raise a security concern.

Applicant cannot receive mitigating credit under AG ¶ 17(a) because his May 3, 2012, statement to an OPM investigator revealing some of his connections to Company AB was not sufficiently prompt (in sufficiently close temporal proximity to his December 28, 2011 SCA) to mitigate security concerns.

In sum, Applicant’s falsification of his SCA by intentionally failing to disclose his connections to Company AB and related information such as his connections to Indian customers of Company AB was improper and raised a security concern. No mitigating conditions apply. Guideline E concerns are not mitigated.

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(a):

(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 Guidelines B and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant has deep and longstanding relationships and loyalties in the United States. In 1969, Applicant came to the United States, and in 1971, he received a master’s degree in electrical engineering at a U.S. university. He has held a security clearance since the mid-1970s. There are no allegations of security violations. In 1982, he became a U.S. citizen. His two children live in the United States, and his second child was born in the United States. When he took an oath and swore allegiance to the United States, as part of his naturalization as a U.S. citizen, and when he volunteered to assist the U.S. Government as a contractor, he manifested his patriotism, loyalty, and fidelity to the United States over all other countries. When he became a U.S. citizen he lost his citizenship to India because India does not recognize dual citizenship. There is no evidence that terrorists or other foreign elements have specifically targeted Applicant or his family in India or his business in India. Applicant is exceptionally intelligent and very knowledgeable about business and engineering. He is a highly successful businessman, and he has earned millions of dollars. A high-level corporate official for a large defense contractor, who has worked with Applicant for more than 35 years, described Applicant as honest, reliable, capable, responsible, and trustworthy.

A Guideline B decision concerning India must take into consideration the geopolitical situation and dangers there.8 India is a dangerous place because of violence from terrorists and other lawless elements, but India is not as dangerous as many other countries. Terrorists continue to threaten the Indian Government, the interests of the United States, and those who cooperate and assist the United States. India and the United States have sometimes had profound policy disputes. The Indian Government does not fully comply with the rule of law or protect civil liberties in some instances. The United States and Indian Governments are allies in the war on terrorism. India and the United States have close relationships in diplomacy and trade. The positive connections between India and the United States have increased dramatically in the last ten years.

Applicant is the majority shareholder of Company A, which is the U.S.-based, parent company of Company AB, which is based in India, and he is the managing director and chairman of the board of Company AB. His spouse is the resident director in India of Company AB. She did not become a U.S. citizen because she did not want to lose her Indian citizenship because it might jeopardize Applicant and his spouse’s control of Company AB. He has contacts with Indian government officials and Indian businesses. He receives income from Company AB, and Company AB sells products to the Indian military. In his December 28, 2011 SCA, Applicant denied that he had a direct ownership or control in a foreign company or business, when he knew he had such control over Company AB. He denied that he provided advice and support to persons in India, when he knew he provided advice and support to employees of Company AB. Applicant understood that the DOD was seeking specific information about his connections to business and government entities in India. He knowingly and intentionally chose not to disclose his connections to Company AB.

The protection of national security requires that those entrusted with access to classified information self-report information. Should a security violation occur, security clearance holders with knowledge of the facts must be sufficiently reliable and responsible to disclose the security violation, even if it reflects poorly on the security clearance holder. Applicant’s failure to disclose facts about his business connections in India raises unresolved questions about his reliability, trustworthiness and ability to protect classified information.

I have carefully applied the law, as set forth in Egan, supra, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Applicant has failed to carry his burden and foreign influence and personal conduct security concerns are not mitigated. Eligibility for access to classified information is denied.

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: AGAINST APPLICANT

Subparagraphs 1.a through 1.c: Against Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: Against Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: Against Applicant Subparagraph 1.h: For Applicant Subparagraph 1.i: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraphs 2.a through 2.c: Against Applicant

CONCLUSION

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

__________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 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. U.S. Department of State, Background Note, India (Apr. 17, 2012), http://www.state.gov/outofdate/bgn/india/200052.htm (HE 4). 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 4) 2To protect Applicant and his 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. 3 Applicant said Company AC has not functioned for more than 15 years. (Tr. 31, 41, 56-58) Due to lack of activity for a prolonged period of time, Applicant’s involvement with Company AC does not raise a security concern. Any allegations of security concern related to Company AC are found for Applicant and will not be further discussed in this decision. 4See Embassy of the United States, New Delhi, India, Dual Nationality: India and the United States, http://newdelhi.usembassy.gov/acsdualnation.html. (HE 5) 5 Five cases involving guilty pleas to from 2008 to 2015 involving industrial espionage and India are not listed as they have low relevance here. There is no evidence that Applicant or his companies have engaged in industrial espionage. 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). 7The Appeal Board has cogently explained the process for analyzing falsification cases, stating: (a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission. ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 2004)). 8 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient discussion of geopolitical situation and suggesting expansion of whole-person discussion).