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ISCR Case 05-05338.h1 — CASE

ISCR Case 05-05338.h1granted

Case Headnote

ISCR Case No. 05-05338.h1

grantedMay 30, 2006· Hon. Robert Robinson Gales· hearing

Summary

This case involved a 49-year-old naturalized U.S. citizen, originally from Indonesia, seeking a security clearance. Concerns were raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). Specifically, the Applicant was alleged to have retained his Indonesian citizenship after naturalization in 1999, indicating a preference for Indonesia, and possessed and used an Indonesian passport. He also had four siblings who were Indonesian citizens residing in Indonesia.

The Applicant mitigated the foreign preference concerns by surrendering his Indonesian passport and expressing a willingness to renounce his Indonesian citizenship. He stated that he maintained the passport for ease of travel within Indonesia, not out of preference for the Indonesian government.

Regarding foreign influence, it was established that no member of the Applicant's family had any connection or association with the Indonesian government, military, political, or intelligence entities, nor were they agents of a foreign government or in positions to be exploited. Based on these mitigating factors, the security clearance was GRANTED.

Why the Applicant Prevailed

Applicant surrendered his Indonesian passport and expressed willingness to renounce Indonesian citizenship.
No family members were found to be agents of a foreign power or in a position to be exploited.

Conditions Referenced

Disqualifying

E2.A3.1.2.1raisedExercise of Dual Citizenship
E2.A3.1.2.2raisedPossession And/or Use of a Foreign Passport
E2.A2.1.2.1raisedImmediate Family Member Is a Citizen Of, or Resident In, a Foreign Country

Mitigating

E2.A3.1.3.1appliedDual Citizenship Based Solely on Parents' Citizenship or Birth in a Foreign Country
E2.A3.1.3.4appliedIndividual Has Expressed a Willingness to Renounce Dual Citizenship
E2.A2.1.3.1appliedImmediate Family Members Are Not Agents of a Foreign Power

Key Rule Quoted

“The whole person concept is the heart of the analysis of whether an applicant is eligible for a security clearance.”

Procedural Posture

SOR issuedNov 29, 2005
Answer filedDec 29, 2005
Hearing heldMar 27, 2006
Decision dateMay 30, 2006

Cite For

Mitigation of Foreign Preference Through Renunciation of Citizenship
Evaluation of Foreign Influence Based on Family Members' Status
Application of the Whole Person Concept in Security Clearance Determinations

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 successfully mitigated concerns regarding foreign influence due to his family ties in Indonesia. Although the applicant has siblings who are Indonesian citizens, he has demonstrated a willingness to renounce his Indonesian citizenship and has surrendered his Indonesian passport. The judge ruled in favor of the applicant on all allegations under Guideline B, concluding that the applicant's ties do not pose a security risk.

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

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business · Community or Civic Involvement · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant has four siblings who are Indonesian citizens residing in Indonesia.	For Applicant	Sibling in Foreign Country Immediate Family	Indonesia HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
2.b	No member of Applicant's family has any connection or association with the Indonesian government, or its military, political, or intelligence entities, nor are they agents of a foreign government or in positions to be exploited by a foreign government.	For Applicant	Unspecified Foreign Relationship Immediate Family	Indonesia HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other

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

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The Applicant, a dual citizen of the U.S. and Indonesia, surrendered his Indonesian passport and expressed a willingness to renounce his Indonesian citizenship. The judge found that the Applicant mitigated the government's security concerns regarding foreign preference, leading to a favorable decision on all allegations under Guideline C.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant retained his Indonesian citizenship upon becoming a naturalized U.S. citizen in 1999, and acted in such a way as to indicate a preference for a foreign country--Indonesia.	For Applicant	Failure to Renounce or Surrender Foreign Status	Admitted	(e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law	(a) the foreign citizenship is not in conflict with U.S. national security interests (d) the exercise of the rights/privileges/obligations of foreign citizenship occurred before the individual became a U.S. citizen	Claimed Other
1.b	Applicant's actions clearly fall within foreign preference disqualifying condition (FP DC) E2.A3.1.2.1. (the exercise of dual citizenship), and FP DC E2.A3.1.2.2. (possession and/or use of a foreign passport).	For Applicant	Foreign Citizenship Acquisition or Application	Admitted	(e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law	(a) the foreign citizenship is not in conflict with U.S. national security interests (d) the exercise of the rights/privileges/obligations of foreign citizenship occurred before the individual became a U.S. citizen	Claimed Other
1.c	He maintained the passport, not out of any preference for the Indonesian government, but because using an Indonesian passport made it easier to travel within Indonesia.	For Applicant	Foreign Passport Possession or Use	Admitted	(e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law	(a) the foreign citizenship is not in conflict with U.S. national security interests (d) the exercise of the rights/privileges/obligations of foreign citizenship occurred before the individual became a U.S. citizen	Claimed Other

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

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

KEYWORD: Foreign Preference; Foreign Influence

DIGEST: Forty-nine year old Applicant was born in Indonesia of ethnic-Chinese parents. In 1990, he immigrated to the U.S., and became a naturalized U.S. citizen in 1999. His wife and two children, all naturalized U.S. citizens, reside with him in the U.S. The immigration applications of two sisters and one brother have already been approved by the U.S. A dual citizen, Applicant has already surrendered his Indonesian passport and has indicated a willingness to renounce his Indonesian citizenship. Applicant has mitigated the government's security concerns arising from possible foreign preference and foreign influence. Clearance is granted.

CASE NO: 05-05338.h1

DATE: 05/30/2006

DATE: May 30, 2006

In re:

-----------

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

Applicant for Security Clearance

ISCR Case No. 05-05338

DECISION OF CHIEF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

APPEARANCES

FOR GOVERNMENT

Melvin A. Howry, Esquire, Department Counsel FOR APPLICANT

Pro Se

SYNOPSIS

Forty-nine year old Applicant was born in Indonesia of ethnic-Chinese parents. In 1990, he immigrated to the U.S., and became a naturalized U.S. citizen in 1999. His wife and two children, all naturalized U.S. citizens, reside with him in the U.S. The immigration applications of two sisters and one brother have already been approved by the U.S. A dual citizen, Applicant has already surrendered his Indonesian passport and has indicated a willingness to renounce his Indonesian citizenship. Applicant has mitigated the government's security concerns arising from possible foreign preference and foreign influence. Clearance is granted.

STATEMENT OF CASE

On March 11, 2004, Applicant applied for a security clearance and completed a Security Clearance Application (SF 86). (1) On November 29, 2005, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, pursuant to 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. The SOR detailed reasons under Guideline C (foreign preference) and 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 determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn, written statement, dated December 29, 2005, Applicant responded to the SOR allegations and requested a hearing. Department Counsel indicated the government was ready to proceed on February 13, 2006, and the case was assigned to me on March 7, 2006. A notice of hearing was issued that same day, and the hearing was held, as scheduled, on March 27, 2006. During the hearing, one joint exhibit, five Government exhibits, four Applicant exhibits, and Applicant's testimony, were received. The transcript (Tr.) was received on April 7, 2006. RULINGS ON PROCEDURE

Department Counsel requested Official Notice be taken of the contents of the following documents: U. S. Department of State, Bureau of Consular Affairs, Travel Warning: Indonesia, dated November 18, 2005; and Human Rights Watch, World Report 2003: Asia: Indonesia, undated. Pursuant to Rule 201, Federal Rules of Evidence (F.R.E.), without any objections by Applicant, I took Official Notice as requested.

FINDINGS OF FACT

Applicant admitted all factual allegations pertaining to foreign preference under Guideline C (subparagraphs 1.a. through 1.c.) and foreign influence under Guideline B (subparagraphs 2.a. and 2.b.). 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 same, I make the following additional findings of fact:

Applicant is a 49-year-old employee of a defense contractor and he is seeking to obtain a security clearance, the level of which has not been divulged. He has been employed as a structural engineer (2) by the same government contractor since June 1996. (3) The executive director of his employer supports his application and has characterized him as a "very trustworthy and reliable employee." (4) He was married in July 1983. (5) His wife, born in Indonesia in 1956, became a naturalized U.S. citizen in November 1999. (6) They have two children, born in Indonesia in 1986 and 1988, both of whom are U.S. citizens. (7) Applicant, his wife, and their children reside in the U.S. (8)

He was born in the Republic of Indonesia (Indonesia) in 1956, but because of a law in place at that time, was not granted Indonesian citizenship. (9) Considered a non-Indonesian citizen and ethnic-Chinese by the Indonesian government because his father had been born in China in 1909 (and immigrated to Indonesia in about 1927), he was ineligible for Indonesian citizenship until the law regarding eligibility was changed in the early 1970's. (10) In 1979, Applicant applied for, and was granted, Indonesian citizenship. (11) He was raised in the traditional Chinese Confucian beliefs, rather than as a Muslim, (12)and educated in Indonesia. (13) He felt discriminated in education and employment because of his ethnicity and religion. (14) He was subjected to hatred and violence and his family was "treated as a cash cow for a corrupt government official." (15) In 1990, he immigrated to the U.S., (16) and became a naturalized U.S. citizen in October 1999. (17) As note above, Applicant's father was born in China in 1909, well before the revolution which resulted in the takeover by the Communists. Applicant's father died in 1972. (18) His mother, a first- generation Chinese, (19) born in Indonesia in 1924, (20) was a homemaker her entire life. (21) She is deceased. (22) Applicant has four siblings who are Indonesian citizens residing in Indonesia. (23) His oldest sister, born in 1953, (24) is an attorney/notary, (25) with two children, both of whom are students at universities in the U.S. (26) His younger sister, born in 1955, (27) works in a retail sales. (28) His brother, born in 1966, (29) is a painter-contractor in private industry. (30) The immigration applications of his two sisters and one brother have been approved by the U.S., and they are currently being processed by the U.S. Department of State. (31) His stepbrother, born in 1951, (32) is a painter-contractor in private industry, working with Applicant's brother. (33) The stepbrother has not applied for emigration. (34) No member of Applicant's family has any connection or association with the Indonesian government, or its military, political, or intelligence entities, nor are they agents of a foreign government or in positions to be exploited by a foreign government. (35) Applicant speaks with his siblings by telephone about once a month. (36)

Applicant was issued a U.S. passport in October 1999. (37) He obtained an Indonesian passport at some unspecified date before becoming a U.S. citizen, and had it renewed in February 2003. (38) That passport was scheduled to expire in February 2006. (39) He maintained the passport, not out of any preference for the Indonesian government, but because using an Indonesian passport made it easier to travel within Indonesia. (40) It was simply a matter of convenience. (41)

On August 16, 2000, the Assistant Secretary of Defense, Command, Control, Communications, and Intelligence (ASD/C3I) issued a passport policy "clarification" pertaining to Adjudicative Guideline C--foreign preference. The memorandum states, in pertinent part:

The purpose of this memorandum is to clarify the application of Guideline C to cases involving an applicant's possession or use of a foreign passport. The guideline specifically provides that "possession and/or use of a foreign passport" may be a disqualifying condition. It contains no mitigating factor related to the applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country. The only applicable mitigating factor addresses the official approval of the United States Government for the possession or use. The security concerns underlying this guideline are that the possession and use of a foreign passport in preference to a U.S. passport raises doubt as to whether the person's allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States. Therefore, consistent application of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government. (42) (Emphasis supplied)

After Applicant learned of the significance and negative impact of maintaining a foreign passport on his security clearance processing (43) or of holding dual citizenship, he expressed an intention of not renewing the passport as well as a willingness to renounce his Indonesian citizenship. (44) He surrendered the passport to the Indonesian consulate. (45) It was received by the consulate on March 25, 2006. (46) Applicant has no financial interests, property, or investments in Indonesia, (47) but does own a home outright in the U.S., (48) as well as three cars, stocks, and mutual funds of unspecified value. (49) Since becoming a U.S. citizen, Applicant has participated in the political process and has voted in the presidential elections. (50)

Since becoming a U.S. citizen in October 1999, Applicant has traveled to many countries for business and/or pleasure. He visited his family on three occasions, each time for a week or less, in January and September 2000 and in January 2003. (51)

Indonesia is a constitutional republic beset by civil turmoil, corruption, racial and religious violence, separatist conflicts, attacks on human rights defenders and tourists, and terrorist bombing incidents. The U.S. Department of State issued a travel warning in May 2005, and again in November 2005, cautioning against non-essential travel to Indonesia by U.S. citizens because of continuing terrorist attacks against foreigners in general, and Americans in particular. (52) There is a particular theme of longstanding anti-Chinese sentiment which views ethnic-Chinese as alien and disloyal, anti-Muslim, and "selfish rich," all of which supports anti-Chinese discrimination. (53) The parliament recently rejected a proposed constitutional amendment to include Islamic law in the constitution. (54) There was no evidence presented to indicate that Indonesia is an active collector of espionage, industrial espionage, or the acquisition of proprietary technology and economic information-trade secrets. Indonesia and the U.S. are allies in the fight against terrorism. (55)

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An administrative judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E.2.2., Enclosure 2, of the Directive, are intended to assist the administrative judge in reaching fair and impartial common sense decisions. Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an administrative judge should consider are: (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 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.

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 C--FOREIGN PREFERENCE: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.

GUIDELINE B--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.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns, pertaining to each of the adjudicative guidelines are set forth and discussed in the Conclusions section below.

Since the protection of the national security is the paramount consideration, the final decision in each case must be arrived at by applying the standard that the issuance of the clearance is "clearly consistent with the interests of national security" or "clearly consistent with the national interest." (56) For the purposes herein, despite the different language in each, I have concluded all of the standards are the same. 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 that are grounded on mere speculation or conjecture.

In the decision-making process, the burden of producing evidence initially falls on the government to establish a case which demonstrates, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the government's case, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk that an 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.

CONCLUSION

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

The government has established its case under Guideline C. Applicant retained his Indonesian citizenship upon becoming a naturalized U.S. citizen in 1999, and acted in such a way as to indicate a preference for a foreign country-- Indonesia. In doing so, he may be prone to provide information or make decisions harmful to the interests of the United States. In support of its contentions, the government has cited Applicant's active exercise of "dual citizenship" with Indonesia and the United States and his acceptance and renewal of an Indonesian passport. Applicant's actions clearly fall within foreign preference disqualifying condition (FP DC) E2.A3.1.2.1. (the exercise of dual citizenship), and FP DC E2.A3.1.2.2. (possession and/or use of a foreign passport).

As noted above, in August 2000, ASD/C3I issued a passport policy "clarification." Under that policy "clarification," it is clear the possession and use of the Indonesian passport falls within FP DC E2.A3.1.2.2. The ASD/C3I memo states there are no mitigating factors "related to an applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country," a phrase which I construe to relate solely to the use of a foreign passport, and not to mere possession of same. On the other hand, the memo "requires a clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government." In this instance, it is of substantial significance that he surrendered the Indonesian passport as soon as he learned of the significance and negative impact of maintaining a foreign passport on his security clearance processing. Applicant's Indonesian citizenship was derived from his birth in Indonesia. That fact brings this matter within Foreign Preference Mitigating Condition (FP C) E2.A3.1.3.1. (dual citizenship is based solely on parents' citizenship or birth in a foreign country). In this instance, the issue is not that Applicant is a dual citizen, but rather his previous possession and use of that foreign passport and other possible indicators of such a preference. Applicant's feelings toward, and relationship with, Indonesia are clearly conflicted. Although his family remains there, it is where ethnic-Chinese such as his family experienced discrimination in education and employment because of their ethnicity and religion (as non- Muslims). Applicant was subjected to official corruption, hatred, and violence, and to this day, has fears of reprisals. In addressing his future, as noted above, he indicated a willingness to relinquish his Indonesian citizenship, thus justifying the application of FP MC E2.A3.1.3.4. (individual has expressed a willingness to renounce dual citizenship). In light of the evidence presented, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated and overcome the government's case under Guideline C. Accordingly, allegations 1.a. through 1.c. of the SOR are concluded in favor of Applicant.

The government has established its case under Guideline B. Applicant has been portrayed as a person who is a potential security risk because members of his immediate family or persons to whom he is bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. This situation raises the potential for vulnerability to coercion, exploitation, or pressure, and the exercise of foreign influence that could result in the compromise of classified information.

The residence and citizenship of some of Applicant's family members are clearly a concern under Foreign Influence Disqualifying Condition (FI DC) E2.A2.1.2.1. (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), but the significance of that conclusion is mitigated by Foreign Influence Mitigating Condition (FI MC) E2.A2.1.3.1. (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).

None of Applicant's siblings meet the definition of "agent of a foreign power" under 50 U.S.C. § 438(6) and 50 U.S.C. § 1801(b). Similarly, none of them would be considered as an "agent of a foreign power" under the more expansive definition adopted by the Appeal Board. As noted above, those siblings who are not U.S. citizens reside and work in Indonesia, and all of them are employed in non-governmental capacities in the private sector. Furthermore, as noted above, the immigration applications of his two sisters and one brother have been approved by the U.S., and they are currently being processed by the U.S. Department of State.

The "whole person concept" is the heart of the analysis of whether an applicant is eligible for a security clearance. (57) In assessing whether an applicant is a security risk because of his or her relatives or associates in a foreign country, it is necessary to consider all relevant factors. In fact, the Appeal Board has repeatedly held:

Although the position of an applicant's foreign family members is significant and may preclude the favorable application of Foreign Influence Mitigating Condition 1, the totality of an applicant's conduct and circumstances (including the realistic potential for exploitation) may still warrant a favorable application of the relevant general factors. (58)

One factor which must be considered is "the potential for pressure, coercion, exploitation, or duress." In that regard, it is important to consider the character of the foreign power in question, including the government and entities controlled by the government, within the relevant foreign country. Nothing in Guideline B suggests it is limited to countries that are hostile to the United States. (59) In fact, the Appeal Board has cautioned against "reliance on overly simplistic distinctions between 'friendly' nations and 'hostile' nations when adjudicating cases under Guideline B." (60) Nevertheless, the relationship between a foreign government and the U.S. may be relevant in determining whether a foreign government or an entity it controls is likely to attempt to exploit a resident or citizen to against the U.S. through the applicant. It is reasonable to presume that a friendly relationship, or the existence of a democratic government, is not determinative, but it may make it less likely that a foreign government would attempt to exploit a U.S. citizen through relatives or associates in that foreign country.

Equally as important is the necessity of considering Applicant's vulnerability to exploitation through his relatives. Applicant--a naturalized U.S. citizen since 1999--is a mature individual with very close ties to the U.S. His wife and both their children are naturalized U.S. citizens residing with Applicant in the U.S. While the general discrimination towards ethnic-Chinese as well as the anti-Chinese sentiment in Indonesia cannot be overlooked, those conditions have existed for years, and except for some monetary demands by corrupt local officials, the family is generally not bothered because they maintain low profiles and are not involved in politics or activism. Moreover, two sisters and one brother have had their immigration applications approved by the U.S., and they are currently being processed by the U.S. Department of State.

Applicant owns no property overseas. His investments, mortgage-free home, and three cars are in the U.S. These facts fall within FI MC E2.A2.1.3.5. (foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities).

Because of Applicant's deep and long-standing relationships and loyalties in and to the U.S., as well as his animosity towards Indonesia, despite family ties with his siblings, he can be expected to resolve any conflict of interest in favor of the U.S. Consequently, I find the potential for pressure, coercion, exploitation, or duress has been minimized and does not constitute a security risk. Thus, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated and overcome the government's case with respect to Guideline B. Accordingly, allegations 2.a. and 2.b. of the SOR are concluded in favor of Applicant.

For the reasons stated, I conclude Applicant is suitable for access to classified information.

FORMAL FINDINGS

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

Paragraph 1., Guideline C: FOR APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Subparagraph 1.c.: For Applicant

Paragraph 2., Guideline B: FOR APPLICANT

Subparagraph 2.a.: For Applicant

Subparagraph 2.b.: For Applicant

DECISION

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

Robert Robinson Gales

Chief Administrative Judge

1. Government Exhibit 1 (Security Clearance Application, dated March 11, 2004).

2. Id. at 2.

3. Id.

4. Letter from company executive director, dated December 23, 2005, attached to Response to SOR, dated December 29, 2005.

5. Government Exhibit 1, supra note 1, at 2.

6. Id. at 4.

7. Id. at 3.

8. Id.

9. Government Exhibit 2 (Affidavit, dated February 3, 2005) at 2.

10. Id.

11. Id.

12. Tr. at 35.

13. Government Exhibit 2, supra note 9, at 2.

14. Tr. at 35.

15. Id.

16. Id.

17. Government Exhibit 1, supra note 1, at 1.

18. Government Exhibit 2, supra note 8, at 2.

19. Tr. at 35.

20. Government Exhibit 1, supra note 1, at 3.

21. Government Exhibit 2, supra note 9, at 3.

22. Government Exhibit 1, supra note 1, at 3.

23. Id. at 3-4.

24. Id. at 3.

25. Tr. at 46-47. 26. Applicant Exhibit B-2 (e-mail message, dated March 27, 2006); Applicant Exhibit B-3 (e-mail message, dated March 25, 2006).

27. Government Exhibit 1, supra note 1, at 4.

28. Government Exhibit 2, supra note 9, at 4.

29. Government Exhibit 1, supra note 1, at 3.

30. Government Exhibit 2, supra note 9, at 3.

31. Applicant Exhibit D (U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Notice of Action (Form I-797), dated August 24, 2005). There is a separate approval notice for each individual application.

32. Government Exhibit 1, supra note 1, at 4.

33. Government Exhibit 2, supra note 9, at 4.

34. Tr. at 49-50.

35. Government Exhibit 2, supra note 9, at 4; Response to SOR, dated December 29, 2005; Applicant Exhibit B-1 (letter from brother and stepbrother, dated arch 25, 2006); Applicant Exhibit B-2, supra note 26; Applicant Exhibit B-3, supra note 26.

36. Tr. at 53.

37. Government Exhibit 5 (U.S. passport, issued October 28, 1999).

38. Id. Government Exhibit 2, at 3.

39. Government Exhibit 4 (Indonesian passport, issued February 25, 2003) at 2.

40. Government Exhibit 2, supra note 9, at 4; Government Exhibit 1, supra note 1, at 5.

41. Tr. at 26.

42. Government Exhibit 6 (ASD/C3I memorandum, dated August 16, 2000).

43. Tr. at 44.

44. Response to SOR, supra note 35.

45. Tr. at 44-45.

46. Applicant Exhibit A (U.S. Postal Service Delivery Confirmation Receipt, dated March 25, 2006).

47. Tr. at 37, 55.

48. Id. at 52.

49. Id. at 56.

50. Id. at 51-52.

51. Response to SOR, supra note 35. 52. U. S. Department of State, Bureau of Consular Affairs, Travel Warning: Indonesia, dated November 18, 2005) at 1- 3.

53. Applicant Exhibit C (Human Rights Watch, Indonesia Alert: Economic Crisis Leads to Scapegoating of Ethnic Chinese, dated February 1998) at 1-4.

54. Human Rights Watch, World Report 2003: Asia: Indonesia, undated (printed from the internet January 31, 2006) at 1-2.

55. Id. at 10.

56. The Directive, as amended by Change 4, dated April 20, 1999, uses "clearly consistent with the national interest" (Sec. 2.3.; Sec. 2.5.3.; Sec. 3..2.; and Sec. 4.2.; Enclosure 3, Sec. E3.1.1.; Sec. E3.1.2.; Sec. E3.1.25.); Sec. E3.1.26.; and Sec. E3.1.27.), "clearly consistent with the interests of national security" (Enclosure 2, Sec. E2.2.3.); and "clearly consistent with national security" (Enclosure 2, Sec. E2.2.2.).

57. ISCR Case No. 03-11448 at 3-4 (App. Bd. Aug. 10, 2004); ISCR Case No. 02-09389 at 4 (App. Bd. Dec. 29, 2004).

58. ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) (footnotes omitted); accord ISCR Case No. 03-23259 at 3 (App. Bd. May 10, 2006).

59. See ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002); ISCR Case No. 00-0489 at 12 (App. Bd. Jan. 10, 2002).

60. ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002).

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Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

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Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

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FOOTNOTES