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ISCR Case 14-04993.h1 — CASE

ISCR Case 14-04993.h1denied

Case Headnote

ISCR Case No. 14-04993.h1

deniedApr 23, 2015· Hon. Richard A. Cefola· hearing

Summary

A 46-year-old U.S. citizen, originally from India, was denied a security clearance under Guideline B (Foreign Influence) due to significant family ties and financial interests in India. The Statement of Reasons detailed that the applicant's mother, father, 43-year-old brother, two sisters, two sisters-in-law, and one brother-in-law are all citizens and residents of India.

Further concerns arose from the applicant's financial connections, including a bank account in India used to support his parents and ownership of a condo under construction in India, valued at approximately $60,000. These conditions raised disqualifying concerns under Adjudicative Guidelines Paragraphs 7(a) and 7(e).

While Adjudicative Guidelines Paragraph 8(f) was considered, the judge ultimately found that the applicant's close family ties and financial support to relatives in India created a heightened risk of foreign exploitation. The applicant's overall circumstances did not sufficiently mitigate the security concerns, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant has close family ties in India, including parents and siblings, which raises concerns of foreign influence.
The applicant maintains financial interests in India, including a bank account and a condo under construction, which could lead to potential coercion or pressure.
The applicant's overall circumstances did not mitigate the security concerns related to foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 7(a)appliedForeign Contacts and Interests
AG ¶ 7(e)appliedSubstantial Property Interest in a Foreign Country

Mitigating

AG ¶ 8(f)rejectedValue of Property Interest Unlikely to Result in ConflictThe judge found that the applicant's U.S. net worth significantly outweighed his foreign property interest, but this did not mitigate the overall foreign influence concerns.

Key Rule Quoted

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

Procedural Posture

SOR issuedNov 3, 2014
Answer filedNov 20, 2014
Hearing heldMar 11, 2015
Decision dateApr 23, 2015

Cite For

Foreign Influence Concerns Due to Family Ties Under Guideline B
Impact of Financial Interests in Foreign Countries on Security Clearance Eligibility
Whole-person Concept in Evaluating Security Clearance Applications

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 multiple foreign influence concerns regarding the applicant's family ties and financial interests in India. While one subparagraph was ruled in favor of the applicant, the overall decision was against the applicant due to the significant foreign connections and the potential for coercion or manipulation.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother and father are citizens and residents of India.	Against Applicant	Parent in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	Applicant’s 43 year-old brother is a citizen and resident of India.	Against Applicant	Sibling in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.c	Applicant’s two sisters are citizens and residents of India.	Against Applicant	Sibling in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.d	Applicant’s two sisters-in-law are citizens and residents of India.	Against Applicant	In Law in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.e	Applicant’s brother-in-law is a citizen and resident of India.	Against Applicant	In Law in Foreign Country Immediate Family	India HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.f	Applicant maintains a bank account in India, in part, to help provide for his parents’ needs.	Against Applicant	Foreign Bank Account or Investment Financial or Property Interest	India HEIGHTENED RISK	Admitted	(e) shared living quarters creating a heightened risk	—	—
1.g	Applicant owns a condo in India that is under construction, worth about $60,000.	Against Applicant	Foreign Real Estate Financial or Property Interest	India HEIGHTENED RISK	Admitted	(e) shared living quarters creating a heightened risk	—	—
1.h–1.i	2 sub-charges — specific text not stated in this decision (1 against, 1 for the applicant). (low confidence)	Mixed	Unspecified Foreign Relationship Other	—		—	—	—

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: ) ) ) ISCR Case No. 14-04993 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se

April 23, 2015

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on June 18, 2013. On November 3, 2014, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline B for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective within the Department of Defense after September 1, 2006.

Applicant acknowledged receipt of the SOR on November 20, 2014. He answered the SOR in writing (Answer) that same date, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter, and I received the case assignment on February 18, 2015. DOHA issued a notice of hearing on February 19, 2015, and I convened the hearing as scheduled on March 11, 2015. The Government offered Exhibit (GX) 1, which was received without objection. Applicant testified on his own behalf and submitted Exhibits (AppXs) A through D, which were received without objection. DOHA received the transcript of the hearing (TR) on March 19, 2015. I granted Applicant’s request to keep the record open until April 11, 2015, to submit additional matters. On April 1, 2015, he submitted Exhibit E, which was received without objection. The record closed on Monday, April 13, 2015. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

Procedural and Evidentiary Rulings

Request for Administrative Notice

Department Counsel submitted a formal request that I take administrative notice of certain facts relating to India. The request was granted. The request, and the attached documents, were not admitted into evidence, but were included in the record. The facts administratively noticed are set out in the Findings of Fact, below.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in all the Subparagraphs of the SOR, with explanations.

Guideline B - Foreign Influence

The 46 year-old Applicant was born in India, came to the United States at the age of 28, and became a U.S. citizen in 2008. (TR at page 22 line 9 to page 23 line 2, and GX 1 at page 7.) He received “both a Bachelor’s and Master’s [Degree] in India,” and is employed as a “Software Engineer.” (TR at page 24 line 17 to page 25 line 3.) This is the first time he has applied for a security clearance. (TR at page 25 line 24 to page 26 line 1.)

1.a., 1.b., 1.g. and 1.i. Applicant’s mother and father are citizens and residents of India. (TR at page 32 lines 21–25.) His 70 year-old mother never worked, but his 74 year-old father worked for a state government. (TR at page 33 line 1 to page 34 line 2, and Answer at page 1.) Applicant’s father is now retired, and gets a Social Security type pension from the Indian government. (Id.) Applicant maintains a bank account in India, in part, to help provide for his parents’ needs. (TR at page 34 lines 3–19, and at page 40 line 16 to page 41 line 6.)

1.c. Applicant’s 43 year-old brother is a citizen and resident of India. (TR at page 35 lines 8–14, at page 36 lines 9–25, and Answer at page 1.) He is “a stock broker,” and lives at home with Applicant’s parents. (Id.)

1.d. Applicant’s two sisters are citizens and residents of India. (TR at page 37 line 1 to page 38 line 5.) They are both “housewives,” but one’s husband works for the national railroad, and the other’s husband “is a high school teacher.” (Id., and TR at page 49 line 20 to page 50 line 5.) 1.e. and 1.i. Applicant’s two sisters-in-laws are citizens and residents of India. (TR at page 38 line 17 to page 40 line 15.) One is a high school teacher, and the other is a housewife. (Id.) Applicant provides some financial support for his sister-in-law housewife. (TR at page 40 line 16 to page 41 line 6.)

1.f. Applicant’s brother-in-law is a citizen and resident of India. (TR at page 41 line 7 to page 42 line 3.) He is a primary school teacher, working for “an NGO,” a Non- Government Organization. (Id.)

1.g. and 1.h. Applicant has two bank accounts in India, worth now only about “$8,000.” (TR at page 45 line 17 to page 46 line 2.) He uses one account to help his parents and sister-in-law, noted above; and the other account to support a condo, that is under construction, worth about $60,000, which he owns in India. (TR at page 48 line 24 to page 49 line 19, and at page 42 line 15 to page 45 line 16.) The value of the under-construction condo pales in comparison to his $600,000 net worth in the United States. (TR at page 29 line 20 to page 30 line 5, and at page 30 line 17 to page 31 line 19.)

I also take administrative notice of the following facts. In 2008, India was reported as involved in criminal espionage and U.S. export controls enforcement cases. In a 2009–2011 Report, Congress noted India as targeting sensitive U.S. economic information and technology. Furthermore, according to the U.S. Department of Justice, there have been numerous, recent criminal cases concerning export enforcement, economic espionage, theft of trade secrets, and embargo-related criminal prosecutions involving both the government of India, and private companies and individuals in India. However, the United States is one of India’s largest trade and investment partners. (AppX D.) Our partnership is one of the defining partnerships of the 21 century. (Id.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), 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 national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that 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

Paragraph 6 of the adjudicative guidelines sets out the security concern relating to Foreign Influence:

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 a foreign interest.

Here, Paragraph 7(a) is applicable: “contacts with a foreign family member . . . 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.” The Applicant’s parents, siblings, and in-laws are citizens of India. Through an Indian bank account, he also provides financial support to his parents and to a sister-in-law. Paragraph 7(e) is also applicable: “a substantial . . . property interest in a foreign country . . . .” He owns a $60,000 condo that is under construction in India. However, this latter concern is clearly mitigated by Paragraph 8(f) as “the value [of the] property interest is such that . . . [it is] unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.” His net worth in the United States is about $600,000 or ten times that of his net worth in India. In light of Applicant’s close and continuing family connections in India, however, I find Foreign Influence against the Applicant.

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. 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.

The Administrative Judge should also 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.

I have considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Although Applicant is well respected in the work place (AppX E at pages 1–2), overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For this reason, I conclude Applicant has not mitigated the security concern arising from his Foreign Influence.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

Subparagraph 1.e: Against Applicant

Subparagraph 1.f: Against Applicant

Subparagraph 1.g: Against Applicant

Subparagraph 1.h: For Applicant

Subparagraph 1.I: Against Applicant

CONCLUSION

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

Richard A. Cefola Administrative Judge