CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 10-00718.h1 — CASE

ISCR Case 10-00718.h1denied

Case Headnote

ISCR Case No. 10-00718.h1

deniedJul 1, 2010· Hon. Juan J. Rivera· hearing

Summary

A 33-year-old physical security officer was denied a security clearance under Guidelines B (Foreign Influence), E (Personal Conduct), and F (Financial Considerations). The denial stemmed from significant financial overextension and deliberate omissions in his 2009 security clearance application (SCA).

The applicant had at least 15 delinquent debts before 2009, including defaulted loans, debts sent to collection, and credit cards suspended or charged off. He purchased three real estate properties and one vehicle on a modest income, all of which were foreclosed and repossessed by the end of 2008. He was sued five times, with two judgments filed against him, and had numerous unresolved delinquent obligations, including being 90 days delinquent on multiple debts.

Crucially, the applicant deliberately failed to disclose these 15 delinquent debts, foreclosures, repossessions, four judgments, and other financial issues in his 2009 SCA. While he paid seven smaller debts, the judge found he failed to establish overall financial responsibility and demonstrated an intent to falsify information. Additionally, his mother and younger brother are citizens and residents of Nigeria, with his mother recently retiring from a Nigerian university. The clearance was denied due to a lack of financial responsibility, deliberate omissions, and ongoing unresolved debts.

Why the Applicant Was Denied

The applicant failed to establish financial responsibility in the acquisition and payment of his debts.
He deliberately omitted significant financial information from his security clearance application, indicating intent to falsify.
Ongoing financial problems and unresolved debts raised concerns about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 16(a)appliedDeliberate Omission, Concealment, or Falsification of Relevant Facts
AG ¶ 19(a)appliedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)appliedA History of Not Meeting Financial Obligations

Key Rule Quoted

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

Procedural Posture

SOR issuedAug 2, 2010
Answer filedAug 5, 2010
Hearing heldNov 10, 2010
Decision dateMar 18, 2011

Cite For

Deliberate Omission of Financial Obligations Under Guideline E
Financial Overextension as a Disqualifying Condition Under Guideline F
Foreign Influence Concerns Mitigated but Not Dispositive 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: denied

The judge found that the applicant had foreign influence concerns due to his immediate family members residing in Nigeria. However, the judge concluded that these concerns were mitigated, resulting in a favorable finding for the applicant on the allegations related to foreign influence. Ultimately, the applicant's security clearance was denied based on other factors, particularly financial considerations.

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
3.a	Applicant's mother and younger brother are citizens and residents of Nigeria.	For Applicant	Parent in Foreign Country Immediate Family	Nigeria HEIGHTENED RISK	Admitted	—	—	—
3.b	Applicant's mother worked as a lecturer at a Nigerian university and recently retired.	For Applicant	Parent in Foreign Country Immediate Family	Nigeria 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 all allegations under Guideline E, determining that the applicant deliberately failed to disclose significant financial issues in his security clearance application. The applicant's lack of candor raised serious concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant deliberately failed to disclose in his 2009 SCA that he had 15 delinquent debts; property foreclosed and repossessed; four judgments entered against him; several defaulted loans; debts turned over to collection agencies; credit cards that had been suspended, charged off, or cancelled for failing to pay as agreed; and was over 180 days delinquent on numerous debts; and was currently 90 days delinquent on numerous debts.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Financial	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b–2.g	6 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant		—		—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found multiple financial concerns under Guideline F, including the applicant's inability to manage debts and a history of delinquency. Despite some payments made towards debts, the applicant's financial issues were deemed ongoing and unresolved, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant acquired at least 15 debts that became delinquent before 2009.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.b	Applicant purchased three real estate properties and one vehicle on his modest income.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.c	Applicant has paid seven smaller debts, but he failed to establish financial responsibility in the acquisition and payment of his debts.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.d	Applicant's three real estate properties and the vehicle were foreclosed and repossessed by the end of 2008.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.e	Applicant has numerous unresolved delinquent obligations.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.f	Applicant was 90 days delinquent on numerous debts.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.g	Applicant failed to disclose his delinquent debts in his security clearance application.	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.h	Applicant was sued five times in civil court by SOR debtors, and two judgments were filed against him.	Against Applicant	Judgment Against Applicant	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.i	Applicant has credit cards that have been suspended, charged off, or cancelled for failing to pay as agreed.	Against Applicant	Credit Card Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	—	—
1.j–1.s	10 sub-charges — specific text not stated in this decision (2 against, 4 for the applicant). (low confidence)	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline F). 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. 10-00718 ) Applicant for Security Clearance )

For Government: Kathryn D. MacKinnon, Esq., Department Counsel For Applicant: Pro se

March 18, 2011 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Between 2004 and 2008, Applicant overextended himself financially when he purchased three real estate properties and one vehicle on his modest income. He acquired at least 15 debts that became delinquent before 2009. He has paid seven smaller debts, but he failed to establish financial responsibility in the acquisition and payment of his debts. Moreover, he deliberately failed to disclose his delinquent debts in his security clearance application. Foreign influence concerns are mitigated. Clearance is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on May 5, 2009. After reviewing the results of the ensuing background investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary affirmative finding1 that it is clearly consistent with the national interest to grant Applicant’s request for a security clearance. On August 2, 2010, DOHA issued Applicant a Statement of Reasons (SOR), which specified the basis for its decision - security concerns raised under Guideline F (Financial Considerations), Guideline E (Personal Conduct), and Guideline B (Foreign Influence) of the adjudicative guidelines (AG).2

Applicant answered the SOR on August 5 and September 1, 2010, and requested a hearing before an administrative judge. The case was assigned to me on October 7, 2010, to determine whether a clearance should be granted or denied. DOHA issued a notice of hearing on October 25, 2010, convening a hearing on November 10, 2010. At the hearing, the Government offered exhibits (GE) 1 through 4, which were admitted without objection. Applicant testified, and presented exhibits (AE) 1 through 5, which were admitted without objection. I kept the record open, allowing Applicant additional time to submit documentary evidence. He submitted AE 6, which was admitted without objection. I marked two documents as hearing exhibits (HE). HE 1 is a letter from Department Counsel to Applicant explaining the hearing proceedings and his rights under the Directive. HE 2 is Department Counsel’s email to me confirming Applicant was on administrative leave pending the resolution of his clearance, and his sponsorship. DOHA received the transcript of the hearing (Tr.) on November 19, 2010.

FINDINGS OF FACT

Applicant admitted all the SOR allegations, except for SOR ¶¶ 1.o and 1.p, which he denied. SOR ¶ 1.jalleges the same student loans alleged in SOR ¶¶ 1.e and 1.f. Also, SOR ¶ 1.qalleges the same debt alleged in SOR ¶ 1.k. I find for Applicant on both SOR ¶¶ 1.jand 1.q. His admissions are incorporated as findings of fact. After a thorough review of the evidence, and having considered Applicant’s demeanor and testimony, I make the following findings of fact.

Applicant is a 33-year-old physical security officer employed by a defense contractor since June 2009. He has never been married. He has a seven month-old- baby. He was born in the United States. His 58-year-old mother and a younger brother are citizens and residents of Nigeria. His mother worked as a lecturer at a Nigerian university. According to Applicant’s testimony, she recently retired from her job at the Nigerian university and now runs her own business. His father was an accountant for the Nigerian government. He passed away in May 2010.

Applicant attended college in the United States from 1999 until 2003, but did not complete a degree. This is his first time applying for a security clearance. He was issued interim access to classified information at the secret level in June 2009 when he was hired. His access was withdrawn in July 2010 with the issuance of the SOR. He was placed on administrative leave in July 2010, pending the resolution of his security clearance concerns. (HE 2) His employer is still sponsoring his clearance. There is no evidence that he has ever compromised or caused others to compromise classified information.

Applicant works as an unarmed security officer. According to his supervisors, he is a dedicated employee and demonstrates exemplary performance and professional behavior on and off duty. He is always courteous and respectful.

According to his May 2009 SCA, Applicant was employed as a customer service representative at a trendy electronics retail store from November 2000 until January 2006. At his hearing, he clarified his SCA entry by indicating that he only worked part- time during the weekends. During his testimony, he added to his SCA entries by stating he also worked at a bank as a customer representative from 2001 until 2004. Later during his testimony, he stated he only worked at the bank for two years. From January 2006 until November 2007, he was employed as a security officer. From January 2005 until November 2008, he worked as a sub-contractor for a cable company as a communications technician. He was unemployed from around November 2008 until May 2009, when he was hired by his current employer.

Between 2006 and 2008, Applicant purchased three real estate properties and a vehicle, all of which were foreclosed and repossessed by the end of 2008. Additionally, he acquired numerous debts, as alleged in the SOR, which became delinquent because he was financially overextended. Applicant explained that he had tenants in two of the properties. He believed that if the tenants paid the rent and the home owner association’s fees as they were supposed to, he would have been able to afford the venture. However, his tenants failed to make the scheduled payments. Applicant’s income was not sufficient to cover the payment of the mortgages, his debts, and his living expenses. Additionally, Applicant underwent a period of diminished work as a sub- contractor for the cable company, and ultimately was unemployed for a period. It is unclear when Applicant’s unemployment began because he gave conflicting starting dates.

After obtaining his current job, Applicant started to address his delinquent obligations. He presented documentary evidence to show he paid SOR ¶¶ 1.a in May 2010; 1.bin August 2009; 1.cin May 2010; 1.e and 1.f (student loans) were consolidated, settled, and paid in November 2010; and 1.land 1.mwere paid in September 2008.

The debts alleged under SOR ¶¶ 1.d, 1.g, 1.h, 1.i, 1.k, and 1.nare Applicant’s unresolved delinquent obligations. He testified he has been trying to contact the creditors to settle the debts without much success. Applicant does not know what his financial responsibility will be after the foreclosure of his three properties.

In his answers to SCA section 26, Applicant answered ‘NO” to all the financial record disclosure questions. He deliberately failed to disclose that during the last seven years he had property foreclosed and repossessed; that he had numerous judgments entered against him; that he had defaulted on several loans, that he had debts turned over to collection agencies; that he had credit cards that had been suspended, charged off, or cancelled for failing to pay as agreed; that he had been over 180 days delinquent on numerous debts; and that he was currently 90 days delinquent on numerous debts.

Applicant claimed that his omissions were not deliberate and that he did not intend to falsify his SCA. He explained that when he submitted his May 2009 SCA, he did not have a copy of his credit report and he did not know the status of many of his debts. He claimed he believed the mortgages were current and in good standing because the real estate agency handling his investment properties failed to notify him of any deficiencies. He also had contacted some creditors and explained to them that he was not employed. He claimed the creditors gave him “leniency,” and that he was not required to pay his debts until he was employed again. Because they gave him “leniency,” he believed the debts were in good standing. Additionally, he had settled some debts and was making payments as agreed. Thus, he believed he did not have to report those debts.

Applicant’s explanations for his failure to disclose the required information are not credible. Between December 2006 and July 2008, he was sued five times in civil court by SOR debtors, and two judgments were filed against him. He testified he attended some of these court proceedings and that he was aware of the judgments. I find that before submitting his May 2009 SCA, Applicant was aware of and should have disclosed the debts in SOR ¶¶ 1.a – 1.i, 1.k, and 1.n. Considering the evidence as a whole, including Applicant’s demeanor and testimony, I find his failure to disclose the required information was deliberate and made with the intent to falsify his application.

Concerning the debts alleged in SOR ¶¶ 1.o and 1.p, Applicant claimed he did not recognize these creditors and that he believed these were not his debts. His credit reports establish a prima facie case that these are his debts. Applicant failed to refute the evidence against him. Furthermore, he failed to submit any documentary evidence to show he disputed the debts.

I take administrative notice of the following facts. Nigeria is a federal republic composed of 36 states and a capital territory. The government’s human rights record is poor, and government officials at all levels commit serious human rights abuses. Areas of the country are marked by serious political instability and outbreaks of armed conflict between religious, political, and ethnic factions. The lack of law and order in the country poses considerable risks to travelers.

The Nigerian government provides diplomatic support to U.S. government counter-terrorism efforts. It has condemned terrorist attacks against the United States and supported military actions against the Taliban and Al-Qaida. It also has played a leading role in forging an anti-terrorism consensus among states in their region. The United States provides the people of Nigeria with substantial financial assistance in areas such as public health, education, and in their efforts of developing effective institutions of democratic governance. Nigeria is an important trading partner of the United States. There is no evidence of economic competition with the United States, or that Nigeria has or ever had an intelligence gathering program targeting U.S. economic, industrial, or military critical technologies.

POLICIES

The President of the United States 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. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). The President has authorized the Secretary of Defense to grant 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. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These AGs 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 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 to reach his decision.

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 that 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. 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), Section 3. Thus, a clearance decision is merely an indication that the Applicant has or 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 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

Guideline F, Financial Considerations

Under Guideline F, the security concern is that failure or inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self- control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. AG ¶ 18.

Between 2004 and 2008, Applicant acquired at least 15 debts (including three real estate mortgages and one vehicle note) that became delinquent. The three real estate properties and the vehicle were foreclosed and repossessed by the end of 2008. Applicant presented documentary evidence to show he paid, settled, or resolved seven of his delinquent debts. Most debts were paid after he started his current job in June 2009. Nine of his delinquent debts are still unresolved. AG ¶ 19(a): “inability or unwillingness to satisfy debts;” and AG ¶ 19(c): “a history of not meeting financial obligations,” apply.

AG ¶ 20 lists six conditions that could mitigate the financial considerations security concerns:

(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances; (c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control;

(d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts;

(e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue; and

(f) the affluence resulted from a legal source of income.

Applicant’s favorable evidence does not support application of any mitigating conditions. His financial problems are ongoing and his evidence fails to show they occurred under such circumstances that they are unlikely to recur and do not cast doubt on Applicant's current reliability, trustworthiness, and good judgment. AG ¶ 20(a) does not apply.

Applicant presented some evidence of a possible circumstance beyond his control that may have contributed to his inability to pay his debts, e.g., his short period of unemployment in 2008-2009. Notwithstanding, Applicant’s documentary evidence is not sufficient to show that he acted responsibly in the acquisition of his debts. The reason for his financial problems was that he overextended himself by investing and living beyond his financial means. AG ¶¶ 20(b) and (d) do not apply.

Considering Applicant’s earnings, he should have been more circumspect on acquiring large debts and more responsible and diligent in addressing his delinquent obligations. In light of the number of delinquent debts, the date the debts were acquired, the aggregate value of the debts, and his efforts to resolve his financial obligations, Applicant’s information is insufficient to establish that his financial problems are unlikely to recur. There is no evidence he received financial counseling. AG ¶ 20(c) does not apply. The remaining mitigating conditions are not reasonably raised by the facts in this case.

Guideline E, Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern stating:

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.

Applicant deliberately failed to disclose in his 2009 SCA that he had: 15 delinquent debts; property foreclosed and repossessed; four judgments entered against him; several defaulted loans; debts turned over to collection agencies; credit cards that had been suspended, charged off, or cancelled for failing to pay as agreed; and was over 180 days delinquent on numerous debts; and was currently 90 days delinquent on numerous debts. Applicant’s deliberate falsification triggers the applicability of the following disqualifying condition:

AG ¶ 16(a): deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

AG ¶ 17 lists seven conditions that could potentially mitigate the personal conduct security concerns:

(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.

After considering the above mitigating conditions, I find none apply. Applicant falsified his 2009 SCA. His falsification is a serious, recent offense (felony-level).3 He made no effort to correct his falsification. To the contrary, during his testimony he was not candid about the circumstances surrounding the acquisition of his debts, his employment history, and his efforts to resolve or pay his debts before receipt of his SOR. His behavior shows questionable judgment, untrustworthiness, unreliability, and lack of candor.

Guideline B, Foreign Influence

Under Guideline B, the government’s concern is:

foreign contacts and interests may be a security concern if the 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 ¶ 6.

AG ¶ 7 sets out two conditions that could raise a security concern and may be disqualifying in this case, including:

(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.

The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in a foreign country and an applicant has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information.4 Applicant has frequent contacts (at least twice a month) and a close relationship of affection and/or obligation with his mother and younger brother, who are residents and citizens of Nigeria. These contacts create a risk of foreign pressure or attempted exploitation because there is always the possibility that Nigerian agents or criminals may exploit the opportunity to obtain information about the United States. His connection to his family members also creates a potential conflict of interest because his relationships are sufficiently close to raise a security concern about his desire to help them by providing sensitive or classified information.

The Government produced substantial evidence raising these two potentially disqualifying conditions, and the burden shifted to Applicant to produce evidence and prove a mitigating condition. As previously indicated, the burden of disproving a mitigating condition never shifts to the government.

Three Foreign Influence Mitigating Conditions under AG ¶ 8 are potentially applicable to these disqualifying conditions:

(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; and

(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.

After considering the totality of the facts and circumstances in Applicant’s case, I conclude that mitigating condition AG ¶¶ 8(b) applies. Applicant has strong feelings of affection and a strong sense of obligation to his mother and sibling. Notwithstanding, Applicant established it is unlikely he will be placed in a position of having to choose between the interests of his family and the interests of the United States. Applicant’s family members in Nigeria live routine lives, they are not involved in politics, employed by the Nigerian government or its military forces. Applicant’s contact with his family in Nigeria during the last 15 years has been for the most part telephonic. He traveled to Nigeria once in 15 years to bury his father. I do not believe Applicant’s relationship with his family in Nigeria creates a heightened risk for foreign influence or exploitation.

In deciding whether Applicant’s family members are in a position to be exploited, I considered Nigeria’s form of government.5 Nigeria is a developing country that, so far, possesses no intelligence, economic, or industrial threat to the United States. Notwithstanding Nigeria’s poor human rights record, there is no evidence its government seeks classified and industrial/economic information from the United States. Nor is there evidence of the Nigerian government mistreating relatives of U.S. citizens or U.S. citizens to obtain such information. Additionally, given the existing relationship between the governments of the United States and Nigeria, it is unlikely Nigeria would risk loosing an important trading partner and the financial support of the United States.

AG ¶ 8(b) applies because Applicant has developed a sufficient relationship and loyalty to the United States, that he can be expected to resolve any conflict of interest in favor of the United States’ interests. He was born in the United States. All of his financial and business interests are in the United States. Applicant has no financial and property interests in Nigeria that could be used effectively to influence, manipulate, or pressure him.

Considering the totality of the circumstances, the evidence shows it is unlikely Applicant will be placed in a position of having to choose between the interests of his siblings or mother-in-law and the interests of the United States. He has mitigated the Guideline B security concerns.

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 relevant 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.

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. AG ¶ 2(c). I have incorporated in my whole- person analysis my comments on the analysis of Guidelines F, E, and B.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant receives credit for his work for a Government contractor. His brief period of unemployment may have contributed, to some extent, to his inability to pay his debts. Notwithstanding, the main reason for his financial problems was his lack of financial responsibility. He overextended himself financially by investing and living beyond his means.

Moreover, Applicant deliberately falsified his 2009 SCA. The record evidence fails to convince me of Applicant’s suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising from his financial considerations and personal conduct. Foreign influence 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 F: AGAINST APPLICANT

Subparagraphs 1.a-1.i, and 1.k, Against Applicant & 1.n-1.p:

Subparagraphs 1.j, 1.l, 1.m, & 1.q: For Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT.

Subparagraphs 2.a-2.g: Against Applicant

Paragraph 3, Guideline B: FOR APPLICANT

Subparagraphs 1.a-1.b: For Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant eligibility for a security clearance to Applicant. Clearance is denied.

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 Required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; and Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as revised. 2 Adjudication of this case is controlled by the AGs, implemented by the DOD on September 1, 2006. 3 See 18 U.S.C. 1001. 4 See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). 5 The focus is not the country or its people, but its rulers and the nature of the government they impose. This approach recognizes that it makes sense to treat each country in accordance with the level of security concern or threat it presents to the United States.