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ISCR Case 16-01243.h1 — CASE

ISCR Case 16-01243.h1granted

Case Headnote

ISCR Case No. 16-01243.h1

grantedJun 16, 2017· Hon. Edward W. Loughran· hearing

Summary

A 49-year-old scientist and CEO of a defense contracting company was granted a security clearance despite concerns under Guidelines B (Foreign Influence) and C (Foreign Preference). The Statement of Reasons cited his family's Pakistani citizenship and residency, potential inheritances for his family, involvement with Pakistani charitable organizations, and uncompensated advisory board role for a sibling's company in Pakistan. Additionally, his companies sponsored H-1B visas for foreign employees, including from Pakistan.

However, the judge found that the applicant's loyalty to the U.S. and the nature of his foreign contacts mitigated these concerns. The applicant demonstrated a strong commitment to the United States and a willingness to report any attempts to exploit his foreign connections. His financial interests in the U.S. were determined to outweigh any potential foreign influence from his family in Pakistan.

Furthermore, the applicant maintained minimal contact with most of his extended family members, which reduced the risk of foreign exploitation. These factors led to the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant demonstrated strong loyalty to the United States and a willingness to report any attempts to exploit his foreign connections.
The applicant's financial interests in the U.S. outweighed potential foreign influence from his family in Pakistan.
The applicant's minimal contact with most of his extended family members reduced the risk of foreign exploitation.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections Creating Potential Conflict of Interest
AG ¶ 7(e)notedShared Living Quarters with Foreign Persons
AG ¶ 7(f)raisedSubstantial Business Interests in a Foreign Country

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons Unlikely to Create Conflict
AG ¶ 8(b)appliedMinimal Conflict of Interest Due to Strong U.S. Ties
AG ¶ 8(c)appliedCasual and Infrequent Contact with Foreign Citizens
AG ¶ 8(f)appliedValue of Foreign Interests Unlikely to Result in Conflict

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 7, 2016
Answer filedAug 1, 2016
Hearing heldMar 31, 2017
Decision dateJun 16, 2017

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Consideration of Family Ties in Security Clearance Decisions
Importance of Applicant's Loyalty and U.S. Ties in Adjudication

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the foreign influence security concerns related to his family ties and business interests in Pakistan. The decision granted the applicant eligibility for access to classified information, concluding that he could be expected to resolve any potential conflicts of interest in favor of U.S. interests.

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 · U.S. Financial Assets Predominant · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant’s family, including in-laws, are citizens and residents of Pakistan.	For Applicant	Parent in Foreign Country Immediate Family	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
2.b	He, his wife, and their children may receive inheritances.	For Applicant	Unspecified Foreign Relationship Immediate Family	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S. (f) foreign interests are minimal and could not be used to influence	Claimed Deep U.S. Ties
2.c	He is involved with several charitable organizations based in Pakistan.	For Applicant	Unspecified Foreign Relationship Other	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
2.d	He sits, without compensation or ownership, on an advisory board for his sibling’s company in Pakistan.	For Applicant	Business Associate in Foreign Country Business or Professional Associate	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
2.e	Applicant’s companies have sponsored employees from foreign countries, including Pakistan, for H-1B visas.	For Applicant	Unspecified Foreign Relationship Other	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
2.f	Applicant has minimal contact with most of his extended family members.	For Applicant	Extended Family in Foreign Country Extended Family	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
2.g	Applicant reported his foreign contacts on his Questionnaire for National Security Positions (SF 86).	For Applicant	Unspecified Foreign Relationship Other	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
2.h	Applicant’s financial support for friends and family does not create a security concern independent of the concerns already addressed under other allegations.	For Applicant	Financial Support to Foreign Relative Immediate Family	Pakistan HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties

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 judge found that the allegations under Guideline C were withdrawn, indicating that the concerns regarding foreign preference were not substantiated. As a result, the applicant was granted eligibility for access to classified information.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Withdrawn	Withdrawn	Unspecified Foreign Preference	Unknown	—	—	—

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. 16-01243 ) Applicant for Security Clearance )

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Jacob T. Ranish, Esq.

06/16/2017 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant mitigated the foreign influence security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On June 7, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines B (foreign influence) and C (foreign preference). Applicant responded to the SOR on August 1, 2016, and requested a hearing before an administrative judge.

The case was assigned to another administrative judge on September 28, 2016, and reassigned to me on December 20, 2016. After coordinating with the parties, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 17, 2017, scheduling the hearing for March 31, 2017. The hearing was convened as scheduled. DOHA received the hearing transcript (Tr.) on April 10, 2017. Procedural and Evidentiary Rulings

Motion to Compel Discovery

Applicant’s motion to compel Department Counsel to obtain discovery from a government agency was denied.

Motion to Amend SOR

Department Counsel moved to amend the SOR by withdrawing ¶ 1.a. The motion was granted without objection.

Evidence

Government Exhibits (GE) 1 and 2 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AE) A through I, and AA through DD, which were admitted without objection. The record was held open for Applicant to submit additional information. He submitted documents that I have marked AE EE through GG and admitted without objection.

Request for Administrative Notice

Department Counsel and Applicant both requested that I take administrative notice of certain facts about Pakistan. The requests were not admitted in evidence but were included in the record as Hearing Exhibits (HE) I and II. Neither party objected, and I have taken administrative notice of the facts contained in HE I and II. The facts are summarized in the written requests and will not be repeated verbatim in this decision. Of particular note is that Pakistan is a safe haven for terrorists. The State Department warns U.S. citizens to defer all non-essential travel to Pakistan, as the presence of several foreign and indigenous terrorist groups poses a potential danger to U.S. citizens throughout Pakistan. Major human rights problems include extrajudicial killings, disappearances, torture, rape, honor crimes, lack of rule of law, and corruption within the government and police.

FINDINGS OF FACT

Applicant is a 49-year-old scientist and chief executive officer (CEO) of a company doing business as a defense contractor. He has a bachelor’s degree, which was awarded in Pakistan. He also has a bachelor’s degree from a U.S. college. He attended graduate school in the United States, but he left before obtaining a post- graduate degree in order to start his first company. He is married with three minor children.1

Applicant was born in Pakistan. He came to the United States in the 1990sto attend college. He remained as a permanent resident and became a U.S. citizen in 2013, while retaining his Pakistani citizenship. His wife is a U.S.-Pakistan dual citizen. His children are U.S. citizens by birth. They also have Pakistani citizenship through their parents.2

Applicant’s father and father-in-law are deceased. His mother, mother-in-law, a sibling, and other extended family members are citizens and residents of Pakistan. Applicant has three siblings. His sibling who lives in Pakistan travels extensively to the United States for business. His two other siblings live in the United States; one is a U.S. citizen; the other is a U.S. permanent resident applying for U.S. citizenship. Applicant’s wife’s second cousin is a senior officer in the Pakistani military. Applicant’s wife has little contact with this second cousin, and Applicant even less. The same is true for most of Applicant’s extended family members.3

Applicant’s companies have sponsored employees from foreign countries, including Pakistan, for H-1B visas. Applicant is involved with several charitable organizations based in Pakistan. He also sits, without compensation or ownership, on an advisory board for his sibling’s company in Pakistan.4

Applicant does not intend to return to Pakistan to live. All of his financial assets are in the United States. He estimates his wealth at more than $100 million, with his wife’s assets adding another $10 million. He, his wife, and his children may receive large inheritances that are small in comparison to their U.S. assets. Applicant paid for two of his siblings and a friend of the family to be educated in the United States. He also gave various family members more than $100,000, which was a small percentage of the proceeds from the sale of his equity in a company.5

Applicant has a U.S. passport, which he uses to travel. He also has a Pakistani passport. He surrendered the passport to his facility security officer (FSO), who noted that the passport is stored in a safe that is inaccessible to Applicant. The FSO will report to the DOD if the passport is returned to Applicant.6

Applicant reported his foreign contacts on his Questionnaire for National Security Positions (SF 86), which he submitted in March 2015. He works with and knows current and former senior government officials. He credibly testified that he is completely loyal to the United States, and that if any person, government, or entity attempted to use his foreign connections against him, he would report the matter to those senior government officials who are best able to assist him. He reported actions of security significance to authorities in the past, and cooperated in the investigation of those actions.7

Applicant is a top authority in his field. He submitted numerous documents and letters attesting to the importance of his work, as well as his allegiance to the United States, judgment, reliability, honesty, patriotism, and integrity.8

POLICIES

This case is adjudicated under Executive Order (EO) 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), which became effective on June 8, 2017.

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

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

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

Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B, Foreign Influence

The security concern for foreign influence is set out in AG ¶ 6:

Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are potentially applicable in this case:

(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

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

(e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; and (f) substantial business, financial, or property interests in a foreign country, or in any foreign owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest.

Applicant’s family, including in-laws, are citizens and residents of Pakistan. He, his wife, and their children may receive inheritances. He is involved with several charitable organizations based in Pakistan, and he sits, without compensation or ownership, on an advisory board for his sibling’s company. The potential for terrorist violence exists in Pakistan. Pakistan also continues to have serious human rights problems. Applicant’s foreign contacts and inheritance prospects create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion, both directly and through his wife. AG ¶¶ 7(a), 7(b), 7(e), and 7(f) have been raised by the evidence.

Applicant’s companies have sponsored employees from foreign countries, including Pakistan, for H-1B visas. That does not create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. SOR ¶ 2.e is concluded for Applicant.

Applicant’s financial support for friends and family does not create a security concern independent of the concerns already addressed under other allegations. SOR ¶ 2.his concluded for Applicant.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable:

(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;

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

(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 (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.

I considered the totality of Applicant’s ties to Pakistan. 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.9

The distinctions between friendly and unfriendly governments must be made with caution. Relations between nations can shift, sometimes dramatically and unexpectedly. 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. 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, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism.

Applicant is a loyal U.S. citizen. His wife, children, and two siblings live in the United States, but he still has family in Pakistan, including his mother, mother-in-law, and a sibling. He credibly testified that he would report to security officials any attempt to use his family members against him, which he believes would be the safest and most prudent course. Such testimony, standing alone, is of limited value. However, here Applicant acted in a somewhat similar manner when he reported certain actions of security significance to authorities.

I find that Applicant can be expected to resolve any potential conflict of interest in favor of the United States. AG ¶ 8(b) is applicable. Applicant has minimal contact with most of his extended family members. AG ¶¶ 8(a) and 8(c) are applicable to those extended family members.

Applicant, his wife, and his children may receive large inheritances, or they may not. Any inheritance, while large to most people, would be small in comparison to their U.S. assets, and could not be used effectively to influence, manipulate, or pressure Applicant. AG ¶ 8(f) is applicable.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis.

Applicant is a loyal U.S. citizen with impeccable qualifications and endorsements. He credibly testified that he would report any attempt to use his foreign contacts to coerce him to reveal classified information. The complicated state of affairs in Pakistan places a significant burden of persuasion on Applicant to demonstrate that his foreign connections do not pose an unacceptable security risk. He has met that burden.

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: Withdrawn

Subparagraph 1.a: Withdrawn

Paragraph 2, Guideline B: For Applicant

Subparagraphs 2.a-2.h: For Applicant

CONCLUSION

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

________________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Tr. at 15, 19-20, 24-25, 62, 71; Applicant’s response to SOR; GE 1, 2; AE E. 2 Tr. at 22-25, 68-70; Applicant’s response to SOR; GE 1, 2. 3 Tr. at 30-41, 53-58, 84-86, 91-96; Applicant’s response to SOR; GE 1, 2; AE B, C. 4 Tr. at 41-46, 73-81; Applicant’s response to SOR; GE 1; AE D. 5 Tr. at 25, 29-30, 50-56, 65-68, 84, 96-101; Applicant’s response to SOR; GE1 ; AE F, CC. 6 Tr. at 30, 62-64, 67; Applicant’s response to SOR; GE 1, 2; AE DD. 7 Tr. at 47-49, 58-61; Applicant’s response to SOR; GE 1; AE A. 8 AE F-I, AA, BB, EE-GG. 9 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).