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ISCR Case 15-04293.h1 — CASE

ISCR Case 15-04293.h1granted

Case Headnote

ISCR Case No. 15-04293.h1

grantedOct 25, 2016· Hon. Mark W. Harvey· hearing

Summary

This security clearance case involved a U.S. citizen, originally from Nigeria, who was evaluated under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). Concerns arose because the applicant had family members who were citizens and residents of Nigeria. Additionally, the applicant renewed her Nigerian passport on January 9, 2008, and November 15, 2013, and used it for travel to Nigeria in 2007, 2009, 2011, 2012, 2013, 2014, and 2016. These actions raised disqualifying conditions under Adjudicative Guideline paragraph 10(a).

To mitigate these concerns, the applicant took several steps. She formally renounced her Nigerian citizenship and returned her Nigerian passports to the Nigerian government. She also demonstrated a clear willingness to renounce dual citizenship and established significantly greater contacts with the United States than with Nigeria. These actions satisfied mitigating conditions under Adjudicative Guideline paragraphs 11(b) and 11(e).

Based on the applicant's successful mitigation of the foreign influence and foreign preference concerns, her security clearance was GRANTED.

Why the Applicant Prevailed

The applicant renounced her Nigerian citizenship and returned her Nigerian passports to the Nigerian government.
She has significantly greater contacts with the United States than with Nigeria.
The applicant expressed a willingness to renounce dual citizenship.

Conditions Referenced

Disqualifying

AG ¶ 10(a)raisedExercise of Any Right, Privilege or Obligation of Foreign Citizenship After Becoming a U.S. Citizen

Mitigating

AG ¶ 11(b)appliedThe Individual Has Expressed a Willingness to Renounce Dual Citizenship
AG ¶ 11(e)appliedThe Passport Has Been Destroyed, Surrendered to the Cognizant Security Authority, or Otherwise Invalidated

Key Rule Quoted

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

Procedural Posture

SOR issuedDec 30, 2015
Answer filedFeb 10, 2016
Hearing heldAug 30, 2016
Decision dateSep 7, 2016

Cite For

Mitigation of Foreign Preference Concerns Through Renunciation of Citizenship
Demonstrating Stronger Ties to the U.S. Than to Foreign Countries
Consideration of Family Ties in Security Clearance Determinations Under Guideline B.

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 foreign influence concerns were mitigated due to her significant ties to the United States and her renunciation of Nigerian citizenship. The applicant has frequent contact with her family in Nigeria but has demonstrated a commitment to U.S. interests, leading to a decision to grant her 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. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	The applicant has family members who are citizens and residents of Nigeria.	For Applicant	Parent in Foreign Country Immediate Family	Nigeria	Admitted	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (e) promptly complied with reporting requirements	Documented Foreign Assets Divested Documented Severed Foreign Contact

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 C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The applicant had concerns regarding foreign preference due to her possession of a Nigerian passport and her travel to Nigeria. However, she renounced her Nigerian citizenship and returned her passports, which mitigated the foreign preference security concerns. The judge ruled in favor of the applicant, granting her eligibility for access to classified information.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	On January 9, 2008, and November 15, 2013, Applicant renewed her Nigerian passport. She used her Nigerian passport to travel to Nigeria in 2007, 2009, 2011, 2012, 2013, 2014, and 2016.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference (e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Documented Other

Descriptive standardized rendering of a decided public case (Guideline C). 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. 15-04293 ) ) Applicant for Security Clearance

For Government: Rhett E. Petcher, Esq., Department Counsel For Applicant: O. Isaac Falusi, Esq.

10/25/2016 __________

STATEMENT OF CASE

__________

HARVEY, Mark, Administrative Judge:

Applicant immigrated with her parents to the United States from Nigeria when she was nine years old. In August 2016, she renounced her Nigerian citizenship and returned her Nigerian passport to the Nigerian Government. While she has frequent contacts with her sister and parents, who returned to Nigeria and are dual citizens and residents of Nigeria, she has significantly greater contacts with the United States than with Nigeria. She can be expected to resolve any conflict of interest in favor of U.S. interests. Foreign preference and foreign influence security concerns are mitigated. Eligibility for access to classified information is granted.

Statement of the Case

On November 20, 2014, Applicant signed and submitted an Electronic Questionnaires for Investigations Processing (e-QIP) version of a security clearance application (SF 86) (SCA). (Government Exhibit (GE) 1) On December 30, 2015, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant, pursuant to Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), which became effective on September 1, 2006. The SOR alleged security concerns under Guidelines C (foreign preference) and B (foreign influence). (Hearing Exhibit (HE) 2) The SOR detailed reasons why the DOD CAF was unable to find that it is clearly consistent with the national interest to grant or continue Applicant’s access to classified information and recommended referral to an administrative judge to determine whether Applicant’s clearance should be granted, continued, denied, or revoked. (HE 2)

On February 10, 2016, Applicant responded to the SOR allegations and requested a hearing. (HE 3) On April 6, 2016, Department Counsel was prepared to proceed. On June 18, 2016, the case was assigned to me. On August 8, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a hearing notice setting the hearing for August 30, 2016. (Transcript (Tr.) 15-16) Applicant’s hearing was held as scheduled. Department Counsel offered four exhibits into evidence; Applicant offered one exhibit into evidence; and all exhibits were admitted without objection. (Tr. 14-16; GE 1-4; AE A) On September 7, 2016, DOHA received the transcript of the hearing.

PROCEDURAL RULINGS

Department Counsel requested administrative notice of facts concerning the Federal Republic of Nigeria (hereinafter Nigeria). (Tr. 10-11; HE 4) Department Counsel provided supporting documents to show detail and context for these facts in the Administrative Notice request. Applicant did not object to me taking administrative notice of the facts in the administrative notice request. (Tr. 11; HE 4) See the Nigeria section of the Findings of Fact of this decision, infra, for the material facts from Department Counsel’s submissions on Nigeria. I have also taken administrative notice of facts from the U.S. Department of State website. See note 2, infra.

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 Fact1

Applicant admitted the SOR allegations in her response to the SOR. (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.

In 1989, Applicant was born in Nigeria. (Tr. 24; GE 1) She works for a large accounting firm as a consultant. (Tr. 26) In 1998, Applicant, who was nine years old at that time, and her parents immigrated to the United States from Nigeria. (Tr. 17) Applicant attended grammar school, high school, and college in the United States. (Tr. 27) In 2004, she became a U.S. citizen. (Tr. 27; GE 1; GE 2) In 2010, she received a bachelor’s degree. (GE 1) She has never married, and she does not have any children. (Tr. 27, 47) Applicant lives with her brother in the United States. (Tr. 19) Applicant’s annual salary is $106,000. (Tr. 45) Her investments in the United States total about $250,000, which includes equity in her home. (Tr. 45-46)

In about 2011, Applicant sister, who is a citizen of Nigeria, but not of the United States, returned to Nigeria. (Tr. 19, 28) In 2012, she married a Nigerian citizen, and she has two children. (Tr. 19) She works for a private company in Nigeria. (Tr. 35) Applicant communicates with her sister about once a month. (Tr. 37)

Applicant’s parents are dual citizens of the United States and citizens of Nigeria, and in 2009, they retired from their U.S. employment and returned to Nigeria. (Tr. 19, 27, 32) Her parents visit the United States twice a year. (Tr. 20, 34) Prior to retiring, her parents worked for a state government in the United States. (Tr. 20) Her parents have never worked for the Nigerian Government. (Tr. 21) Her parents do not live in an area of Nigeria where they are at significant risk for a terrorist attack. (Tr. 22, 42-44) Applicant communicates with her parents about four times a month. (Tr. 33)

Applicant visited Nigeria in 2006, 2007, 2009, 2011, 2012, 2013, 2014, and January 2016. (Tr. 23, 38-40) She usually stayed in Nigeria for about 14-20 days. (Tr. 23) She has not paid taxes to the Nigerian Government or received benefits from the Nigerian Government. (Tr. 29) She does not send funds to her parents, and she does not own property in Nigeria. (Tr. 34, 41)

Foreign preference

On January 9, 2008, and November 15, 2013, Applicant renewed her Nigerian passport. (SOR ¶ 1.a response) She used her Nigerian passport to travel to Nigeria in 2007, 2009, 2011, 2012, 2013, 2014, and 2016. (Tr. 39-40; SOR ¶ 1.a response) She used her Nigerian passport as a convenience because she did not need to get a visa. She did not use her Nigerian passport out of loyalty to, or a preference for, Nigeria. (Tr. 30) In August 2016, Applicant renounced her Nigerian citizenship and returned her three Nigerian passports (two were expired) to the Government of Nigeria. (Tr. 29; AE A) She was not reluctant to renounce her Nigerian citizenship because she considers herself to be an American. (Tr. 23)

Nigeria2

Nigeria is a federal republic that gained independence from Britain in 1960. Nigeria is the most populous country in Africa with a population in 2011 of 160 million. The country’s area is about the same as California, Nevada, and Arizona combined. The United States is Nigeria’s largest trading partner. Oil imports from Nigeria to the United States account for 11% of U.S. oil imports. “Oil and gas exports account for more than 95% of export earnings and over 80% of federal government revenue.” Oil revenue “fueled massive migration to the cities and led to increasingly widespread poverty, especially in rural areas.” The United States is the largest foreign investor in Nigeria, and U.S. investment is mostly in mining and petroleum.

Since the restoration of basic democracy in Nigeria in 1999, the bilateral relationship [between the United States and Nigeria] has continued to improve, and cooperation on many important foreign policy goals, such as regional peacekeeping, has been excellent. On April 6, 2010, Secretary of State Hillary Clinton and Nigerian Secretary to the Government of the Federation Yayale Ahmed inaugurated the U.S.- Nigeria Binational Commission, a formalized commitment to hold bilateral talks on four key areas: good governance, transparency, and integrity; energy and investment; Niger Delta and regional security; and agriculture and food security.

President Yar’Adua visited President George W. Bush at the White House on December 13, 2007. During her first official trip to Africa, Secretary Clinton visited Nigeria on August 12, 2009. President Jonathan met with President Barack Obama at the White House on June 8, 2011. An estimated one million Nigerians and Nigerian Americans live, study, and work in the United States, while over 25,000 Americans live and work in Nigeria.

The country has faced intermittent political turmoil and economic crises since independence. Political life has been scarred by conflict along ethnic, geographic, and religious lines, and corruption and misrule have undermined the authority and legitimacy of the state. Congress regularly monitors Nigerian political developments and has expressed concerns with corruption, human rights abuses, and environmental damage in the Delta, as well as with the threat of violent extremism in Nigeria.

Corruption in Nigeria is “massive, widespread, and pervasive,” according to the U.S. State Department, and by many accounts, the country’s development will be hampered until it can address the perception of impunity for corruption and fraud. Human Rights Watch suggests that Nigeria’s political system rewards rather than punishes corruption, which has been fueled by oil revenues for decades.

The most serious human right problems during 2014 were those committed by the militant sect known by the name of Boko Haram, which conducted numerous attacks on government and civilian targets throughout the country, resulting in thousands of deaths and injuries, widespread destruction, forced internal displacement, and the flight of more than 100,000 refugees to neighboring countries. In its response to Boko Haram, and at times to crime in general, security services perpetrated extrajudicial killings and engaged in torture, rape, arbitrary detention, mistreatment of detainees, and destruction of property. The country also suffered from widespread societal violence, including ethnic, regional, and religious violence. Other serious human rights problems included vigilante killings and official corruption. The Civilian Joint Task Force (C-JFT) continued to recruit children and commit extrajudicial killings. The government lacked effective mechanisms to investigate and punish abuse and corruption. Massive, widespread, and pervasive corruption affected all levels of government and security forces.

Nigerian security forces, particularly the police, have been accused of serious human rights abuses. In 2007, a U.N. report indicated that torture is an intrinsic part of how law enforcement services operate within the country and called on the Nigerian Government to criminalize the practice. Nigerian officials have acknowledged some abuses; in 2010 the country’s police minister called the situation “condemnable and unacceptable,” but few security personnel have been prosecuted for abuses.

* * *

Kidnappings remain a security concern throughout the country. Criminal elements throughout Nigeria orchestrate kidnappings for ransom; Islamic extremists, operating predominantly in the North, also have been known to conduct kidnappings. Criminals or militants have abducted foreign nationals, including U.S. citizens, from off- shore and land-based oil facilities, residential compounds, airports, and public roadways. In 2015, six U.S. citizens were kidnapped in separate incidents.

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.

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. 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 Preference

AG ¶ 9 describes the foreign preference security concern stating, “when an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.”

AG ¶ 10 describes one condition that could raise a security concern and may be disqualifying in Applicant’s case:

(a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport.

Applicant became a U.S. citizen in 2004. She renewed her Nigerian passport after becoming a U.S. citizen, and she used it from 2006 to January 2016 to enter Nigeria. The disqualifying condition under AG ¶ 10(a)(1) applies. AG ¶ 11 provides two conditions that could mitigate security concerns: “(b) the individual has expressed a willingness to renounce dual citizenship;” and “(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.”

In August 2016, Applicant renounced her Nigerian citizenship and returned her Nigerian passports to the Government of Nigeria. AG ¶¶ 11(b) and 11(e) apply, and foreign preference security concerns are mitigated.

Foreign Influence

AG ¶ 6 explains the security concern about “foreign contacts and interests” stating:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, 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 two 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; and

(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.

AG ¶¶ 7(a) and 7(b) apply because of Applicant’s relationship with her family living in Nigeria and her frequent travel to Nigeria from 2006 to January 2016.

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). The mere possession of close family ties with relatives living in Nigeria is not, as a matter of law, disqualifying under Guideline B. However, if an applicant has such a relationship with even one person 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 Generally ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99- 0424 (App. Bd. Feb. 8, 2001).

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). 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 nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an Applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, or the country is known to conduct intelligence collection operations against the United States. The relationship of Nigeria with the United States, places a significant, but not insurmountable burden of persuasion on Applicant to demonstrate that her relationships with family members who are citizens of Nigeria or living in Nigeria 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 protect her family members living in a foreign country from harm, pressure or coercion.3 With its negative human rights record, and high levels of crime in Nigeria (especially from terrorists) as well as other political, economic and military problems in this country, it is conceivable that anyone living in Nigeria might be targeted by governmental or non-governmental criminal elements in an attempt to gather information from the United States.

There is no evidence that intelligence operatives, terrorists, or other entities from Nigeria seek or have sought classified or economic information from or through Applicant, her family living in Nigeria, or anyone in the United States. Applicant’s communications and visits with family living in Nigeria are sufficiently frequent, to demonstrate affection for family living in Nigeria. Concern for family is a positive character trait that increases trustworthiness; however, it also increases concern about potential foreign influence. Department Counsel produced substantial evidence and raised the issue of foreign influence. AG ¶¶ 7(a) and 7(b) apply, 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.

AG ¶ 8(b) applies to mitigate concerns relating to Applicant’s family living in Nigeria. Applicant has “deep and longstanding relationships and loyalties in the U.S.” She has family connections to the United States. She lives with her brother in the United States. Applicant has lived in the United States for most of her life.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by relationships with family living in Nigeria. It is important to be mindful of the United States’ positive relationship with Nigeria, especially the history of military and diplomatic connections between Nigeria and the United States. The United States and Nigeria share a mutual goal of suppressing terrorism. AG ¶ 8(f) applies in part. Applicant is currently employed by a U.S. Government contractor with an annual income of $106,000. The value of her U.S. assets is about $250,000. Her property interests in the United States include her employment and investments in the United States. Her significant U.S. financial connection weighs towards mitigation of security concerns.

In sum, the primary foreign influence security concern is Applicant’s close relationships with her family living in Nigeria. Applicant has “deep and longstanding relationships and loyalties in the U.S.” Her residency in the United States since the age of nine and education in the United States clearly outweigh her connections to Nigeria. She “can be expected to resolve any conflict of interest in favor of the U.S. interest.” Foreign influence concerns are mitigated under AG ¶ 8(b).

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

A Guideline B and C decision concerning Nigeria must take into consideration the geopolitical situation in Nigeria, as well as the dangers existing in Nigeria.4 While there is no evidence Nigeria is a collector of U.S. intelligence and sensitive economic information, Nigeria has very serious economic, military, political, judicial/legal and social problems. Nigeria and the United States are closely related in trade and diplomacy. Nigeria is the most populous country in Africa and about one million Nigerians live in the United States. The United States is Nigeria’s largest trading partner. In 1989, Applicant was born in Nigeria. When she was nine years old, she and her parents immigrated to the United States from Nigeria. Applicant attended grammar school, high school, and college in the United States. In 2004, she became a U.S. citizen. Applicant lives with her brother in the United States. Her annual salary is $106,000. Her U.S. assets are valued at about $250,000, which includes equity in her home.

After Applicant became a U.S. citizen, she renewed her Nigerian passport, and she used her Nigerian passport to travel to Nigeria in 2007, 2009, 2011, 2012, 2013, 2014, and 2016. She used her Nigerian passport as a convenience because she did not need to get a visa and not out of loyalty to or a preference for Nigeria. In August 2016, Applicant renounced her Nigerian citizenship and returned her Nigerian passports to the Government of Nigeria. Applicant has a close relationship with her parents and sister, who are citizens and residents of Nigeria. She frequently communicates with them. Her family members in Nigeria do not have any connections to the Nigerian Government or Nigerian terrorists.

The possibility of attempted exploitation of Applicant through her family in Nigeria is low. Applicant’s strong connections to the United States and especially to her U.S. family, community and employment establish “deep and longstanding relationships and loyalties in the U.S., [that she] can be expected to resolve any conflict of interest in favor of the U.S. interest.”

After weighing the evidence of her connections to Nigeria and to the United States, and all the facts in this decision, I conclude Applicant has carried her burden of mitigating the foreign preference and foreign influence security concerns.

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. Foreign preference and foreign interest security concerns are mitigated.

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 C: FOR APPLICANT Subparagraph 1.a: For Applicant

Paragraph 2, Guideline B: FOR APPLICANT Subparagraph 2.a: For Applicant

CONCLUSION

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

____________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 The facts in this decision do not specifically describe employment, names of witnesses or locations in order to protect Applicant and her family’s privacy. The cited sources contain more specific information. 2The facts in the section concerning Nigeria, except for the first three paragraphs, are quoted from Department Counsel’s administrative notice request. (HE 4) The first three paragraphs are from the U.S. Department of State, Bureau of African Affairs, Background Note: Nigeria, April 19, 2012, http://www.state.gov/outofdate/ bgn/nigeria/200317.htm. (HE 5) The second and third paragraphs are quoted verbatim from this 2012 Background Note. 3 An applicant with relatives in Iran, for example, has a much heavier burden to overcome than an applicant with relatives living in Nigeria. See ISCR Case No. 02-13595 at 3 (App. Bd. May 10, 2005) (stating an applicant has “a very heavy burden of persuasion to overcome the security concerns” when parents and siblings live in Iran). See also ISCR Case No. 04-11463 at 4 (App. Bd. Aug. 4, 2006) (articulating “very heavy burden” standard when an applicant has family members living in Iran); ISCR Case No. 07-12471 at 9 (A.J. May 30, 2008) (listing numerous recent cases involving U.S. citizens with Iranian connections whose clearances were denied, and citing no recent cases where the Appeal Board affirmed the grant of a clearance for someone with immediate family members living in Iran). 4 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).