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ISCR Case 16-00455.h1 — CASE

ISCR Case 16-00455.h1granted

Case Headnote

ISCR Case No. 16-00455.h1

grantedSep 29, 2017· Hon. Francisco Mendez· hearing

Summary

This security clearance decision involved a U.S. citizen, originally from Pakistan, whose case was evaluated under Guideline B (Foreign Influence). The Statement of Reasons raised concerns regarding the applicant's relationships with her parents and brother, who are citizens and residents of foreign countries, specifically Pakistan and Hong Kong. These allegations invoked Disqualifying Conditions AG ¶ 7(a) and AG ¶ 7(b).

However, the applicant successfully demonstrated mitigating factors, leading to the application of Mitigating Conditions AG ¶ 8(a), AG ¶ 8(b), AG ¶ 8(c), and AG ¶ 8(e). Evidence showed the applicant had not visited Pakistan in 15 years and last visited Hong Kong over five years ago. Furthermore, she maintained limited and infrequent contact with her father and practically no contact with her brother.

Crucially, the applicant renounced her foreign citizenship and returned her Hong Kong passport in 2015. She also established a strong life in the U.S., evidenced by home ownership and a stable job. Based on these factors, the security clearance was GRANTED.

Why the Applicant Prevailed

Applicant has not visited Pakistan in 15 years and last visited Hong Kong over five years ago.
Applicant has limited, infrequent contact with her father and practically no contact with her brother.
Applicant renounced her foreign citizenship and returned her Hong Kong passport in 2015.
Applicant has established a life in the U.S. with significant ties, including home ownership and a stable job.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Member
AG ¶ 7(b)raisedConnections to a Foreign Person

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedNo Conflict of Interest Due to Minimal Allegiance
AG ¶ 8(c)appliedCasual and Infrequent Contact with Foreign Citizens
AG ¶ 8(e)appliedPrompt Compliance with Reporting Requirements

Key Rule Quoted

“A person is not per se disqualified from holding a security clearance because they have familial or other ties to a foreign country.”

Procedural Posture

SOR issuedJun 3, 2016
Answer filed—
Hearing heldSep 19, 2017By agreement of the parties.
Decision dateSep 29, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Evaluation of Familial Relationships with Foreign Nationals
Consideration of an Applicant's Established Life in the U.S.

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 presented sufficient evidence to mitigate foreign influence security concerns related to her familial ties in Pakistan and Hong Kong. The decision granted the applicant a security clearance, indicating that her foreign connections did not pose a significant risk to national security.

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
1.a	The SOR alleges that Applicant’s relationship with her parents and brother, who are citizens and residents of foreign countries, raise a security concern.	For Applicant	Parent in Foreign Country Immediate Family	Pakistan HEIGHTENED RISK	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b	The SOR alleges that Applicant’s relationship with her parents and brother, who are citizens and residents of foreign countries, raise a security concern.	For Applicant	Sibling in Foreign Country Immediate Family	Hong Kong	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.c	The SOR alleges that Applicant’s relationship with her parents and brother, who are citizens and residents of foreign countries, raise a security concern.	For Applicant	Unspecified Foreign Relationship Other	—	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.d	The SOR alleges that Applicant’s relationship with her parents and brother, who are citizens and residents of foreign countries, raise a security concern.	For Applicant	Unspecified Foreign Relationship Other	—	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties

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

Full decision

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

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) REDACTED ) ISCR Case No. 16-00455 ) ) Applicant for Security Clearance

For Government: Erin P. Thompson, Esq., Department Counsel For Applicant: Pro se

09/29/2017 ______________

STATEMENT OF CASE

______________

MENDEZ, Francisco, Administrative Judge:

Applicant presented sufficient evidence to mitigate alleged foreign influence security concerns. Clearance is granted.

Statement of the Case

On June 3, 2016, the Department of Defense (DoD) issued a Statement of Reasons (SOR) alleging that Applicant’s connections to and contact with relatives in Pakistan and Hong Kong raised a security concern under the foreign influence guideline. The SOR also alleged that Applicant’s past possession of a foreign passport raised concerns under Guideline C (foreign preference), but Department Counsel withdrew that allegation. Applicant answered the SOR and requested a hearing (Answer).

By agreement of the parties, the hearing was held on September 19, 2017. Applicant testified and the exhibits offered by the parties were admitted into the administrative record without objection.1 The transcript of the proceeding was received on September 26, 2017.

FINDINGS OF FACT

Applicant was born in Pakistan. She and her family left Pakistan in 1998, and settled in Hong Kong. She immigrated to the United States in 2008. She became a U.S. citizen in 2015. She has not visited Pakistan in 15 years, and last visited Hong Kong over five years ago. She renounced her foreign citizenship and returned her Hong Kong passport in 2015.

The SOR alleges that Applicant’s relationship with her parents and brother, who are citizens and residents of foreign countries, raise a security concern. Applicant’s mother recently died. She was living in Hong Kong until her death. After her mother’s death, Applicant’s father returned to live in Pakistan. He is semi-retired, working part time at a private school. He has no connection to the Pakistani government or military. Applicant has limited, infrequent contact with her father, generally by text message.

Applicant’s brother resides in Hong Kong with his family. He works in the private financial sector. Applicant’s relationship with her brother is strained. They practically have no contact with each other. She tries to remember to text him once a year on his birthday. When she last visited Hong Kong about five years ago, Applicant did not visit with her brother. He has no connection to any foreign government.

After immigrating to the United States, Applicant earned an undergraduate degree. She is a certified public accountant. She married in 2010, and she and her husband recently celebrated the birth of their first child. She and her husband purchased their home in 2013 for approximately $450,000, and a current mortgage statement reflects a $370,000 balance. Applicant also co-owns with her sister two investment properties in the United States. Applicant is close, physically and otherwise, to her sister and her sister’s family. Applicant’s sister and her best friend are U.S. citizens.

Applicant was hired by her current employer in 2015, and her 2016 tax return reflects that she and her husband’s adjusted gross income totaled over $200,000. She closed her foreign bank accounts. Applicant’s assets, properties, and financial interests are in the United States. Besides her home and investment properties, Applicant has savings and retirement accounts in the United States. Before the recent birth of her child, Applicant was active in her community. She received a certificate of appreciation from another federal government agency for her outstanding public service contributions.

In 2015, Applicant submitted a security clearance application in connection with her current employment. She disclosed and reported her foreign connections. She then discussed her foreign connections, contacts, and travel with an investigator who conducted her security clearance background interview. She has no connections to or contacts with any foreign government or entity. Administrative Notice - The Islamic Republic of Pakistan (Pakistan).

Pakistan is a federal republic. The United States has had diplomatic relations with Pakistan since its creation in 1947. Over the decades, the two countries’ relationship has been guided by their common interests in a peaceful, stable, and prosperous region.

The September 11, 2001 attacks led to closer coordination between Pakistan and the United States on security and stability issues in South Asia. Notwithstanding recent efforts by the Pakistani military against terrorist and other extremist groups within Pakistan’s borders, the United States remains concerned about these groups’ ability to operate, plan, and conduct domestic, regional, and global attacks from safe havens within Pakistan. The presence of these groups in Pakistan pose a significant threat to U.S. citizens and U.S. interests. These groups have carried out attacks against the United States, the Pakistani government, and the citizens of both countries. The U.S. State Department warns U.S. citizens to defer all non-essential travel to Pakistan because of the danger posed by the presence of these groups and other armed extremist elements.

Recent U.S. State Department reports reflect that serious human rights violations have occurred in Pakistan. These reports also reflect that corruption within Pakistani society remains a significant problem.

Administrative Notice – China & Hong Kong.

From 1842 to June 30, 1997, Hong Kong was a British colony. Those born in Hong Kong during this time were considered British subjects. On July 1, 1997, Hong Kong reverted to Chinese sovereignty as a Special Administrative Region of the People’s Republic of China (China or PRC). Hong Kong maintains some autonomy from the PRC, which the United States supports under the “one country, two systems” framework. However, the PRC maintains authority on foreign relations and national defense. The PRC has an authoritarian government, dominated by the Chinese Communist Party. The PRC has a poor record with respect to human rights, suppresses political dissent, and its practices include arbitrary arrest and detention, forced confessions, torture, and mistreatment of prisoners. The PRC actively engages in acts of espionage against the United States. The U.S. State Department warns visitors to China that they may be placed under surveillance. Hotel rooms, offices, cars, taxis, internet usage, and fax machines may be monitored onsite or remotely, and personal possessions in hotel rooms, including computers, may be searched.

Law, Policies, and Regulations

This case is decided under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented on June 8, 2017, through Security Executive Agent Directive 4 (SEAD-4).2 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Instead, persons are only eligible for access to classified information “upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2.

When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. AG ¶ 2.

Department Counsel must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Applicants are responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven . . . and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15.

Administrative Judges must remain fair and impartial, and conduct all hearings in a timely and orderly manner. Judges must carefully balance the needs for the expedient resolution of a case with the demands of due process. Therefore, an administrative judge will ensure that an applicant: (a) receives fair notice of the issues, (b) has a reasonable opportunity to address those issues, and (c) is not subjected to unfair surprise. Directive, ¶ E3.1.10; ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014).

In evaluating the evidence, a judge applies a “substantial evidence” standard, which is something less than a preponderance of the evidence. Specifically, substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive, ¶ E3.1.32.1.3

Any doubt raised by the evidence must be resolved in favor of the national security. AG ¶ 2(b). See also SEAD-4, ¶ E.4. Additionally, the Supreme Court has held that responsible officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Foreign contacts and interests are a national security concern if they result in divided allegiance. Likewise, a concern arises if a person’s connections, contacts, or interests in a foreign country leave them vulnerable to pressure or coercion by any foreign interest. However, a person is not per se disqualified from holding a security clearance because they have familial or other ties to a foreign country. Instead, in assessing a person’s potential vulnerability to foreign influence, a judge considers the foreign country involved, the country’s human rights record, and other pertinent factors.4

In assessing the security concerns at issue, I considered all disqualifying and mitigating conditions listed under Guideline B, including the following:

AG ¶ 7(a): contact . . . with a foreign family member . . . if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

AG ¶ 7(b): connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology;

AG ¶ 8(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 . . . and the interests of the United States;

AG ¶ 8(b): there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

AG ¶ 8(c): contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; and AG ¶ 8(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.

An applicant with relatives in a foreign country faces a high, but not insurmountable hurdle, in mitigating security concerns raised by such foreign ties. An applicant is not required “to sever all ties with a foreign country before he or she can be granted access to classified information.”5 However, what factor or combination of factors may mitigate security concerns raised by an applicant with foreign relatives is not easily identifiable or quantifiable.6 Moreover, when an applicant’s foreign relatives reside in a hostile foreign country or a country where elements hostile to the United States and its interests operate somewhat freely, such an applicant faces a very heavy burden in mitigating security concerns raised by their connections to and contacts with foreign relatives.7

Here, Applicant does not have a close relationship to her father or brother. Beyond these weak familial relationships, Applicant has no foreign connections. She has clearly established a life for herself and her family in the United States. Each of the above listed mitigating conditions apply in full or in part. After considering the potential security concern posed by Applicant’s foreign familial ties, the disqualifying and mitigating conditions, and the whole-person factors,8 I find that she presented sufficient evidence to mitigate the foreign influence security concern.9

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by Directive, ¶ E3.1.25, are:

Paragraph 1, Guideline B (Foreign Influence): FOR APPLICANT

Subparagraphs 1.a – 1.d: For Applicant

Paragraph 2, Guideline C (Foreign Preference): WITHDRAWN

Subparagraph 2.a: Withdrawn

CONCLUSION

In light of the record evidence, it is clearly consistent with the interests of national security to grant Applicant initial or continued eligibility for access to classified information. Applicant’s request for a security clearance is granted.

____________________ Francisco Mendez Administrative Judge

FOOTNOTES

1 Government Exhibits 1 – 3; Applicant’s Exhibits A – D. The discovery letter, Department Counsel’s withdrawal of the Guideline C allegation, correspondence, the notice of hearing, and the case management order were marked Appellate Exhibits I – V. 2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DoD policy and standards). 3 However, a judge’s mere disbelief of an applicant’s testimony, without actual evidence of disqualifying conduct or admission by an applicant to the disqualifying conduct, is not enough to sustain an unfavorable finding. ISCR Case No. 15-05565 (App. Bd. Aug. 2, 2017); ISCR Case No. 02-24452 (App. Bd. Aug. 4, 2004). Furthermore, an unfavorable decision cannot be based on solely non-alleged conduct. ISCR Case No. 14-05986 (App. Bd. May 26, 2017). Likewise, a judge can only use non-alleged conduct for specific limited purposes, such as, assessing mitigation and credibility, unless an applicant is placed on notice that such conduct also raises a security concern. ISCR Case No. 12-11375 (App. Bd. June 17, 2016). 4 See generally AG ¶ 6. See also ISCR Case No. 05-03250 at 4 (App. Bd. Apr. 6, 2007) (setting forth factors an administrative judge must consider in foreign influence cases). 5 ISCR Case No. 07-13739 at 4 (App. Bd. Nov. 12, 2008).

6 ISCR Case No. 11-12202 at 5 (App. Bd. June 23, 2014).

7 ISCR Case No. 12-05092 at 5 (App. Bd. Mar. 22, 2017).

8 See AG ¶ 2; SEAD-4, ¶ E.4.

9 ISCR Case No. 14-05986 (App. Bd. May 26, 2017) (affirming grant involving equally weak foreign familial relationships).