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ISCR Case 02-20031.h1 — CASE

ISCR Case 02-20031.h1denied

Case Headnote

ISCR Case No. 02-20031.h1

deniedJun 10, 2004· Hon. Philip S. Howe· hearing

Summary

A 41-year-old defense contractor was denied a security clearance under Guideline B (Foreign Influence) due to his wife and her family being citizens and residents of South Korea. The applicant admitted to all allegations, which included his wife, mother-in-law, sister-in-law, and two brothers-in-law all being citizens and residents of the Republic of Korea.

The denial stemmed from the potential for foreign influence created by these family ties. The applicant failed to demonstrate that his wife and her family members were not agents of a foreign power or in a position to be exploited.

Crucially, the applicant provided no information regarding his wife's employment or that of her family members, which could have helped mitigate the foreign influence concerns. Ultimately, the applicant did not present sufficient information to overcome the disqualifying conditions, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant's wife and her family are citizens of South Korea, creating a potential for foreign influence.
The applicant did not demonstrate that his wife and her family members are not agents of a foreign power or in a position to be exploited.
The applicant presented no information about his wife's employment or that of her family.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedForeign Influence

Key Rule Quoted

“"No one has a 'right' to a security clearance."”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJun 3, 2003
Answer filedNov 12, 2003Applicant requested decision on written record.
Hearing held—No hearing; case decided on written record.
Decision dateJun 10, 2004

Cite For

Foreign Influence Concerns Under Guideline B
Failure to Mitigate Foreign Influence Due to Family Ties Abroad
Impact of Foreign Citizenship on Security Clearance Eligibility

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 against the applicant on all allegations under Guideline B, citing concerns about foreign influence due to the applicant's wife and her family being citizens and residents of the Republic of Korea. The applicant did not provide sufficient evidence to mitigate these concerns, leading to the denial of his security clearance.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's wife is a citizen and resident of the Republic of Korea (RSK).	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	Republic of Korea	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	Applicant's mother-in-law is a citizen and resident of the Republic of Korea (RSK).	Against Applicant	Parent in Foreign Country Immediate Family	Republic of Korea	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.c	Applicant's sister-in-law is a citizen and resident of the Republic of Korea (RSK).	Against Applicant	Sibling in Foreign Country Immediate Family	Republic of Korea	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.d	Applicant's two brothers-in-law are citizens and residents of the Republic of Korea (RSK).	Against Applicant	Sibling in Foreign Country Immediate Family	Republic of Korea	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—

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

DATE: June 10, 2004

In re:

------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 02-20031

DECISION OF ADMINISTRATIVE JUDGE

PHILIP S. HOWE

SYNOPSIS

Applicant' wife and her family are citizens of and residents in the Republic of Korea (a/k/a

South Korea). Applicant's wife is not qualified to immigrate. Applicant did not mitigate the foreign influence security concerns. Clearance is denied.

STATEMENT OF CASE

On June 3, 2003, the Defense Office of Hearings and Appeals (DOHA), under Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant. The SOR detailed reasons under Guideline B (Foreign Influence) why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied, or revoked.

In a signed and sworn statement, dated November 12, 2003, Applicant answered the SOR allegations, admitting all of them. He requested his case be decided on the written record in lieu of a hearing. This case was reopened after Applicant failed to respond in a timely manner to the SOR when it was originally mailed to him. Applicant's first response was on November 12th.

On March 2, 2004, Department Counsel submitted the Department's written case. A complete copy of the file of relevant material (FORM) (1) was provided to the Applicant, and he was given the opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant received the FORM on March 10, 2004. Applicant did not file a response to the FORM. The case was assigned to me on April 26, 2004.

FINDINGS OF FACT

Applicant admitted the SOR allegations. He admits his wife, mother-in-law, sister-in-law, and two brothers-in-law are citizens of the Republic of Korea, a/k/a South Korea (RSK). Those admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact:

Applicant is a 41-year-old employee of a defense contractor. He married his wife in 1996. His wife is a citizen and resident of RSK. She does not have the legal status to immigrate to the United States. Applicant's mother and father-in- law live in RSK where they hold citizenship. They do not speak English, so Applicant's communication with them is limited to greetings during telephone calls to his wife. (Item 4; Item 6)

Applicant's sister-in-law and his two brothers-in-law are citizens of and resident within the RSK. They speak little if any English. (Item 4)

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the Administrative Judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk.

Initially, the Government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. "[T]he Directive presumes there is a nexus or rational connection between proven conduct under any of the Criteria listed therein and an applicant's security suitability." ISCR Case No. 95-0611 at 2 (App. Bd. May 2 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec 19, 2002); see 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 security clearance." ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531; see Directive ¶ E2.2.2.

Each adjudicative decision must also include an assessment of: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, and the extent of knowledgeable participation; (3) how recent and frequent the behavior was; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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 (See Directive, Enclosure 2). Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single condition may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or other behavior specified in the Guidelines.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

GUIDELINE B: Foreign Influence

The Concern: A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure. Directive ¶ E2.A2.1.1.

Conditions that could raise a security concern and may be disqualifying include:

An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country. Directive ¶ E2.A2.l.2.l.

Conditions that could mitigate security concerns include:

A determination that the immediate family member(s), (spouse, father, mother, sons,. daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s,) involved and the United States. Directive ¶ E2.A2.1.3.l.

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions above, I conclude the following with respect to each allegation set forth in the SOR:

The foreign influence alleged under Guideline B is based on Applicant's wife and her family members being citizens of and residents of the RSK. His wife does not have legal status for immigration. Applicant has periodic telephone contact with his wife and her family. The Government established by substantial evidence that the security concern of the Guideline B, and in particular Disqualifying Condition (DC) 1 applies to this case.

Applicant did not meet his burden of showing is wife and her family members are not agents of a foreign power, or that they were not in a position to be exploited by a foreign power that could force Applicant to choose between loyalty to the person involved and the United States. Applicant presented no information about his wife's employment or that of her family. In addition to that lack of information, Applicant's wife, if she seeks to join her husband in the United States, is in a position to be exploited by a foreign power to assist her in qualifying for immigration. There are no Mitigating Conditions (MC) which I apply to this case. Therefore, I find against Applicant.

FORMAL FINDINGS

Formal Findings as required by Section E3.1.25 of Enclosure 3 of the Directive are hereby rendered as follows:

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

DECISION

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

_____________________

Philip S. Howe

Administrative Judge

1. The Government submitted seven items in support of the SOR.

FOOTNOTES

02-20031.h1 FOR GOVERNMENT Edward W. Loughran, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-20031.h1.html[6/24/2021 11:01:25 AM] 02-20031.h1