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ISCR Case 04-03671.h1 — CASE

ISCR Case 04-03671.h1granted

Case Headnote

ISCR Case No. 04-03671.h1

grantedJun 14, 2005· Hon. Darlene Lokey Anderson· hearing

Summary

This case concerns a 32-year-old naturalized U.S. citizen, originally from South Korea, who sought a security clearance under Guideline B (Foreign Influence). The Statement of Reasons alleged that the applicant's foreign contacts, specifically family residing in South Korea, could create a potential for foreign influence. These contacts included a mother-in-law and three sister-in-laws who are South Korean citizens and reside there. The applicant had also traveled to Korea on at least eleven occasions between January 1998 and October 2001.

However, it was noted that none of the applicant's family, either in Korea or the United States, had ever been associated with, employed by, or acted as agents of the Korean government. The judge applied mitigating conditions, finding that the applicant's ties to his family in South Korea were sufficiently mitigated.

The decision to grant the clearance was based on several factors: the applicant's immediate family members are U.S. citizens and do not pose a security risk; the applicant possesses significant assets solely within the United States, with no assets in Korea; and contact with foreign relatives is infrequent and casual. Consequently, the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant's immediate family members are U.S. citizens and do not pose a security risk.
The applicant has significant assets in the United States and no assets in Korea.
The applicant's contact with foreign relatives is infrequent and casual.

Conditions Referenced

Mitigating

AG ¶ 1appliedMitigating Condition 1The applicant's immediate family members are not agents of a foreign power.
AG ¶ 3appliedMitigating Condition 3Contact and correspondence with foreign citizens are casual and infrequent.

Key Rule Quoted

“The Government must make out a case under Guideline B (Foreign Influence) that establishes doubt about a person's judgment, reliability and trustworthiness.”

Procedural Posture

SOR issuedSep 23, 2004
Answer filedOct 12, 2004
Hearing heldJan 27, 2005
Decision dateJun 14, 2005

Cite For

Mitigation of Foreign Influence Under Guideline B
Criteria for Evaluating Foreign Family Ties
Importance of U.S. Citizenship of Immediate Family Members in Security Clearance Cases

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's foreign family ties do not raise a security concern and have been mitigated. The applicant's request for a security clearance was granted under Guideline B.

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	The Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.	For Applicant	In Law in Foreign Country Immediate Family	South Korea	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (c) contact so casual and infrequent there is little likelihood of risk	Claimed Other
1.b	The Applicant was born in South Korea. His family moved to the United States in 1991 at the young age of eighteen.	For Applicant	Unspecified Foreign Relationship Other	South Korea	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (c) contact so casual and infrequent there is little likelihood of risk	Claimed Other
1.c	The Applicant has a mother-in-law and three sister-in-laws who are citizens of South Korea, and reside in South Korea.	For Applicant	In Law in Foreign Country Immediate Family	South Korea	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (c) contact so casual and infrequent there is little likelihood of risk	Claimed Other
1.d	The Applicant has traveled to Korea on at least eleven different occasions from January 1998 to October 2001.	For Applicant	Unspecified Foreign Relationship Other	South Korea	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (c) contact so casual and infrequent there is little likelihood of risk	Claimed Other
1.e	None of the Applicant's family in Korea or in the United States have ever been associated with, employed for, or agents of, the Korean government.	For Applicant	Unspecified Foreign Relationship Other	South Korea	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (c) contact so casual and infrequent there is little likelihood of risk	Claimed 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

SYNOPSIS

KEYWORD: Foreign Influence

DIGEST: Applicant's foreign family ties have been mitigated and do not raise a security concern. Clearance is granted.

CASENO: 04-03671.h1

DATE: 06/14/2005

DATE: June 14, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-03671

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

SYNOPSIS

Applicant's foreign family ties have been mitigated and do not raise a security concern. Clearance is granted.

STATEMENT OF CASE

On September 23, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the reasons 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on October 12, 2004, and requested a hearing before a DOHA Administrative Judge. This case was assigned to the undersigned on November 29, 2004. A notice of hearing was issued on December 22, 2004, scheduling the hearing for January 27, 2005. At the hearing the Government presented seven exhibits. The Applicant presented three exhibits and testified on his own behalf. The official transcript (Tr.) was received on February 10, 2005.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the exhibits and the testimony. The Applicant is 32 years of age. He holds a asters Degree in Business Administration and a Masters Degree in Systems Engineering. He is employed as a Systems Engineer for a defense contractor. He seeks a security clearance in connection with his employment in the defense industry.

Paragraph 1 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information. The Applicant was born in South Korea. His family moved to the United States in 1991 at the young age of eighteen. He obtained his college and advanced degrees in the United States. He married a woman from South Korea in 2000. (See Applicant's Exhibit A, page 1). The Applicant sponsored his wife and she is currently in the final process of getting her United States citizenship. They have a young child who was born in the United States. The Applicant became a naturalized citizen of the United States in February 2000.

The Applicant's mother and brother are also naturalized United States citizens who reside in the United States. The Applicant's grandmother is a citizen of South Korea but lives in the United States. She entered the United States on a tourist visa and overstayed her visa. She is currently living with the Applicant's mother in the United States. She came to the United States to take care of her daughter, the Applicant's mother, who has brain cancer. She is in the process of becoming a legal permanent resident of the United States. All of the Applicant's immediate family members live in the United States.

The Applicant has a mother-in-law and three sister-in-laws who are citizens of South Korea, and reside in South Korea. The Applicant's talks to them about once a month by telephone to see how they are doing. None of the Applicant's family in Korea or in the United States have ever been associated with, employed for, or agents of, the Korean government.

The Applicant has traveled to Korea on at least eleven different occasions from January 1998 to October 2001. During this time, he worked in a technical leadership position that involved international business. On each occasion, the travel was required by his United States employer. None of the travel was for personal reasons. The Applicant was not involved in any defense related work or classified work during this period. (Tr. p. 27).

The Applicant has purchased a home in the United States worth approximately half a million dollars. (Tr. p. 51). He has no assets of any kind in Korea.

Mitigation.

A letter of recommendation dated October 8, 2004, from the Director of Multi-Mission Maritime Aircraft, indicates that the Applicant is extremely dedicated and diligent toward his work assignments. He is also considered to be very honest and a person of high integrity. (See Applicant's Exhibit C).

A letter of recommendation from the Applicant's Manager indicates that the Applicant is the hardest working individual on his team. He works long hours and inspires his teammates to do the same to achieve schedule commitments. He is very well respected among his colleagues. (See Applicant's Exhibit C).

POLICIES

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Foreign Influence

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: (1) not citizens of the United States or (2) 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.

Condition that could raise a security concern:

1. 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;

Conditions that could mitigate security concerns:

1. A determination that immediate family member(s), spouse, father, mother, sons daughters, brothers, sisters), cohabitant, or associates(s) in questions 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) and the United States; 3. Contact and correspondence with foreign citizens are casual and infrequent.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence. The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

The Government must make out a case under Guideline B (Foreign Influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

An individual who demonstrates a foreign preference and has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

CONCLUSION

Having considered the evidence in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR, and that Applicant's foreign influence has a direct and negative impact on his suitability for access to classified information.

This 32 year old Applicant came to the United States when he was eighteen years old. He became a United States citizen. He obtained his advanced education, established his family, and made the United States his home. He has a young child who was born in the United States. His mother, brother and grandmother also reside in the United States. The Applicant is married to a Korean citizen who is in the final process of receiving her United States citizenship. None of the Applicant's family members in Korea or in the United States have ever been affiliated with, employed for, or agents of, the Korean Government. Therefore, mitigating condition (1) a determination that the immediate family member(s), cohabitant, or associate(s) in question would not constitute an unacceptable security risk applies.

Although his mother-in-law and three sister-in-laws still reside in Korea, he has only casual and infrequent contact with them. Mitigating condition (3) contact and correspondence with foreign citizens are casual and infrequent also applies. The Applicant has significant assets in the United States and none in Korea. Except for his mother-in-law and three sisters-in-law in Korea the Applicant has, for the most part, cut all of his ties with Korea. The Applicant credibly testified that there is no situation that could ever occur that would force him to reveal classified information to any unauthorized individual no matter what their relationship to the Applicant. He has no foreign ties or contacts that could potentially influence him. Therefore, I find that there is no situation that could create the potential for foreign influence that could result in his compromise of classified information. Accordingly, the Applicant's request for a security clearance must be granted under Guideline B.

Considering all the evidence, the Applicant has met the mitigating conditions of Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guideline B.

FORMAL FINDINGS

Formal Findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: For the Applicant.

Subparas. 1.a.: For the Applicant

1.b.: For the Applicant 1.c.: For the Applicant

1.d.: For the Applicant

1.e.: For the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interests to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson

Administrative Judge

FOOTNOTES

FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se