KEYWORD: Foreign Influence; Foreign Preference; Personal Conduct; Criminal Conduct DIGEST: Applicant emigrated to the United States in 1988. He was born and grew up in Nigeria. He became a naturalized U.S. citizen in 2003, and received his U.S. passport shortly thereafter. Applicant’s use, renewal, and possession of a current Nigerian passport pose an unacceptable security concern. Moreover, he deliberately falsified his security clearance application. His favorable information is not sufficient to mitigate the security concerns. Clearance is denied. CASENO: 06-12972.h1 DATE: 08/03/2007 DATE: August 3, 2007 ) In re: ) ) ------------------------ ) ISCR Case No. 06-12972 SSN: ----------- ) ) Applicant for Security Clearance ) ) DECISION OF ADMINISTRATIVE JUDGE JUAN J. RIVERA APPEARANCES FOR GOVERNMENT See E xecu t ive O rd er 1 0 8 6 5 , Sa fegua rd ing C lassi f ied In fo rm a t ion W ith in Indus try (F eb . 2 0 ,1 1 9 6 0 , as am end ed , and D ep artm ent o f D efense D irec t ive 52 2 0 .6 , D efense In d u s tr ia l P erso n n e l Secu ri ty C lea ra n ce R ev iew P ro g ra m ( Jan . 2 , 19 9 2 ) (D irec tive) , a s am end ed and rev ised . O n A ugus t 30 , 20 0 6 , the U nd er S ec re ta ry o f D efense (In te ll igence ) pub l ished a memo randum d irec ting app l ica tion o f rev ised A d judica tive G uid e l ines to a l l ad jud ica t io ns and o ther de te rmina t io ns m ad e und er the D irec tive and D ep artm ent o f D efense (D o D ) R egula t ion 52 0 0 .2 -R , P e rso n n e l S ec u ri ty P ro g ra m (R egula tion ) , da ted January 1 9 8 7 , as am end ed , in which the SO R was issued on o r a f ter Sep tem ber 1 , 20 0 6 . Francisco Mendez, Esquire, Department Counsel FOR APPLICANT Pro Se SYNOPSIS Applicant emigrated to the United States in 1988. He was born and grew up in Nigeria. He became a naturalized U.S. citizen in 2003, and received his U.S. passport shortly thereafter. Applicant’s use, renewal, and possession of a current Nigerian passport pose an unacceptable security concern. Moreover, he deliberately falsified his security clearance application. His favorable information is not sufficient to mitigate the security concerns. Clearance is denied. STATEMENT OF THE CASE On September 21, 2005, Applicant submitted a security clearance application (GE 1, Electronic Questionnaires for Investigations Processing). On October 11, 2006, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a statement of reasons (SOR) alleging facts and security concerns under Guideline B (Foreign Influence), Guideline C (Foreign Preference), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The SOR informed Applicant that DOHA adjudicators could not make a preliminary affirmative finding that it is clearly consistent with the national interest to grant him access to classified information and submitted the case to an administrative judge for a security determination. On December 20, 2006, Applicant answered the SOR and requested a1 hearing. The case was assigned to me on May 2, 2007. On June 4, 2007, I convened a hearing at which the government presented five exhibits, marked GE 1-5, to support the SOR. Applicant testified on his own behalf, and presented two witnesses and five exhibits, marked AE 1-5. DOHA received the transcript (Tr.) on June 14, 2007. FINDINGS OF FACT Applicant admitted the factual allegations in SOR ¶¶ 1.a – 1.b, and 2.a – 2.c, with explanations. He denied that he deliberately falsified his security clearance application as alleged in SOR ¶¶ 3.a – 3.b, and ¶ 4.a. His admissions are incorporated herein as findings of fact. After a thorough review of all evidence of record, I make the following additional findings of fact: Applicant is a 47-year-old security officer, working for a government contractor. He was born, raised, and educated in Nigeria (GE 1). He has never been married and has no children. He completed primary and secondary education in a small town in Nigeria. At around age 20, he moved to a large city in Nigeria, and from approximately 1980 to 1986, worked for a private bank and played soccer. In 1988, at the age of 29, he emigrated to the United States (Tr. 32). From 1988 to 2005, Applicant worked at an American Christian academy teaching English, mathematics, social studies, science, physical education, and bible studies to children in first to eight grades. In 1994, he began attending an American university and received a bachelor’s degree in English in 2002. Applicant became a naturalized U.S. citizen in October 2003, and received his U.S. passport shortly thereafter. He completed a master’s degree in business administration (human resources) in 2005. In September 2005, he was hired by his current employer, a government contractor, and issued an interim security clearance. His company provides security to a sensitive U.S. agency. He requires access to classified information to retain his job (Tr. 8). Applicant has one brother and one sister who are citizens and residents of Nigeria. His brother is 67 years old, and he is a widow. Applicant’s brother is retired. He served as a medic in the Nigerian armed forces for more than 10 years prior to his retirement (Tr. 42-43). Applicant did not know whether his brother was an officer. He only remembered his brother worked as a health care provider. Applicant claimed he did not know what is his brother’s current occupation, if any. Applicant’s sister is 57 years old, and a widow. She retired from her job at a private television station. He calls his siblings once or twice a month, and provides financial support to both. Applicant believes it is his obligation as a brother and as a Christian to help his siblings. He has been sending his siblings $100-$200 every two to three months for many years. They divide the money among themselves based on their needs (Tr. 44-47). Section 17.d of Applicant’s September 2005 security clearance application, required him to disclose whether within the preceding seven years he had an active passport issued to him by a foreign government. Applicant answered “No,” and failed to disclose that he was in possession of a valid Nigerian passport. He renewed his passport in August 2000, and the new passport had an expiration date of August 2005. Applicant again renewed his Nigerian passport on or about August 2005, and it now has an expiration date in August 2010. He brought his active Nigerian passport to the hearing. Consistent with his prior statements, Applicant testified he was willing and ready to surrender his Nigerian passport. Applicant explained he answered “No” to Section 17.d, because he mistakenly believed his country of birth, Nigeria, was not a foreign country. Because he was born in Nigeria, to him Nigeria is not a foreign country. He did not know that for purposes of the security clearance application, any passport from any nation except the United States is considered a foreign passport (Tr. 54). Section 18 of Applicant’s September 2005 security clearance application, required him to list any foreign countries he had visited during the preceding seven years. He disclosed his travel to Germany from April 2004 to May 2005; to Germany and Poland during August 2004; and to the United Kingdom during August 2002. Applicant failed to disclose he traveled to Nigeria in August 2000, July 2001, and April 2004. In January 2006, Applicant was interviewed by a government investigator concerning the possession of an active Nigerian passport and his foreign travel. Following that interview, he sent an e-mail (dated January 2006) to the investigator clarifying his foreign travel (AE 1). The e-mail shows Applicant traveled to Finland and Nigeria during July-August 2001; to Denmark and Germany during July 2002; to Nigeria during April-May 2004; and to Germany and Poland during August 2004. His last foreign travel was to Poland in June 2006 (GE 2). In a letter to DOHA, dated September 12, 2006, Applicant disclosed that in 2002 he traveled through London to Nigeria for a family visit (GE 3). Applicant testified that the information in his security clearance application had several mistakes that he tried to correct. Specifically, he meant to write 2004 as the year he traveled to Nigeria to attend his mother’s funeral. He also explained that he did not disclose any trips to Nigeria because, since he was born in Nigeria, he did not consider Nigeria a foreign country (Tr. 58). In 2004, Applicant’s mother passed away. In April 2004, he traveled to Nigeria using both his U.S. passport and his Nigerian passport. He explained he did not have the time to go through the process of requesting a visa in order to attend his mother’s funeral. While holding his interim clearance, Applicant had access to classified information. There is no evidence to show Applicant failed to comply with the rules and procedures for handling classified information (Tr. 158). His interim clearance was withdrawn as a result of the security concerns under adjudication. The government has not alleged, and the evidence does not show, Applicant is anything other than a loyal U.S. citizen. Applicant strongly averred he is a loyal U.S. citizen with personal, professional, and financial commitments in the United States. He promised to defend and take arms for the United States against any enemies. He emigrated to the United States seeking the many opportunities offered and a better quality of life. He is a law-abiding person, and would not knowingly violate the laws of the United States. He was improved his lifestyle while in the United States by attending college and advanced education. Additionally, he has made positive contributions to the community through his services with a Christian church. He participated in the church’s outreach program visiting the needy, the elderly, and State prisons (Tr. 31). Applicant’s witnesses and references, most of them pastors and members of his Church, have known him for 10 to 15 years. They consider Applicant an excellent teacher, a model citizen, and role model. Applicant has established a reputation for D ire c t ive , S ec tio n 6 .3 . s ta te s, “E a ch c le ara nc e d ec is io n m ust b e a fa ir and im p a rt ia l co m m o n2 sense d e te rm ina t io n ba sed up o n co ns id era t io n of a l l the re levan t and m ate r ia l in fo rma tio n and the p ert ine n t cr i ter ia and ad jud ica t ion po l icy in enc losure 2 . . .” A G ¶ 2 (a ) . s ta te s, “ . . . T he a d jud ic at io n p ro c ess is the c are fu l we igh ing o f a num b e r o f3 var iab les kno wn as the who le p erso n c o ncep t . A va i lab le , r e l iab le in fo rma tio n a b o ut the p erso n , p as t and presen t, favorab le and unfavorab le , shou ld be conside red in reach ing a de te rmina tion . . . .” being trustworthy, honest, caring, and for having high moral standards. He is not considered the type of person who would falsify a security clearance application or violate the law. 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 abuses including politically motivated and extrajudicial killings, torture, arbitrary arrest and detention, infringement on privacy rights, freedom of speech, and press. Areas of the country are marked by serious 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 strong 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 Directive sets forth adjudicative guidelines which must be considered in evaluating an Applicant’s eligibility for access to classified information. Foremost are the disqualifying and mitigating conditions under each adjudicative guideline applicable to the facts and circumstances of the case. However, the guidelines are not viewed as inflexible ironclad rules of law. The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an Applicant. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3 of the Directive, and the2 whole person concept. Having considered the record evidence as a whole, I conclude3 Guideline B (Foreign Influence), Guideline C (Foreign Preference), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) are the applicable relevant adjudicative guidelines. BURDEN OF PROOF See D e p a rtm e n t o f th e N a v y v . E g a n , 48 4 U .S . 51 8 , 53 1 (19 8 8 ) .4 D irec tive , ¶ E 3 .1 .32 .1 ; ISC R Case N o . 02 -1 2 1 9 9 a t 3 (A p p . B d . Ap r . 3 , 200 6) (Subs tan tia l5 ev idence is suc h re levan t ev idence as a reaso nab le m ind m igh t accep t as ad e q u a te to sup p o rt a c o nc lus io n in l igh t o f a l l the c o ntra ry ev id e nc e in the re co rd .) ; IS C R C a se N o . 9 8 -0 7 6 1 a t 2 (A p p . B d . D ec . 27 , 19 9 9 ) (Sub s tan t ia l ev id ence is m o re than a sc in t i l la , bu t less tha n a p rep o nd erance o f the ev id ence . ) . E g a n , su p ra n . 4 , a t 5 2 8 , 5 3 1 .6 See Id ; A G ¶ 2 (b) .7 The purpose of a security clearance decision is to resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s eligibility for access to classified information. The government has the initial burden of proving4 controverted facts alleged in the SOR. To meet its burden, the government must establish a prima facie case by substantial evidence. The responsibility then shifts5 to the applicant to refute, extenuate or mitigate the government’s case. Because no one has a right to a security clearance, the applicant carries the ultimate burden of persuasion. 6 A person who has access to classified information enters into a fiduciary relationship with the government based on trust and confidence. The government, therefore, has a compelling interest to ensure each applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or her own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access to classified information in favor of protecting national security.7 The scope of an administrative judge’s decision is limited. Nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. Executive Order 10865, § 7. CONCLUSIONS Under Guideline B (Foreign Influence), the government’s concern is that 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. A G ¶ 7 se ts ou t co nd i t io ns tha t co u ld ra ise a securi ty co ncern a n d m a y b e d is q ua l i fying in th is case , inc lud ing : See IS C R C a se N o . 0 3 -0 2 3 8 2 a t 5 (A p p . B d . F eb . 1 5 , 2 0 0 6 ) ; IS C R C a se N o . 9 9 -0 4 2 4 (A p p .8 B d . Feb . 8 , 20 0 1 ) . (a ) co n ta c t w ith a fo re ig n fa m ily m e m b e r, b u sin e ss o r p ro fe s s io n a l a sso c ia te , fr ie n d , or o th er p erson wh o is a c it izen o f o r re siden t in a fo re ign coun try i f tha t con tac t c re a te s a h e ig h te n ed r isk o f fo re ig n ex p lo i ta t io n , in d u c em e n t, m a n ip u la tio n , p re ssu re , o r co e rc io n ; (b ) co nn ec tio ns to a fo re ig n p erso n , g ro up , g overn m en t, o r co un try th a t c r ea te a po ten t ia l con f l ic t o f in te rest be tw een the ind iv idu a l’s ob liga tion to pro tec t s ens it ive in fo rm a tio n o r te ch n o lo g y a n d th e in d iv id u a l’s d es ir e to h e lp a fo re ig n p erso n , g ro u p , o r co u n try b y p ro v id in g th a t in fo rm a tio n ; T he mere possess ion o f c lose family t ie s w ith a pe rson in a fo re ign co un t ry i s no t , a s a ma tte r o f law, d isqua l ifying unde r G uid e l ine B . H o wever , if on ly one re la t ive l ives in a fo re ign co untry, and a n a p p l ic a n t ha s co n ta cts with tha t re la tive , th is fa c to r a lo ne is su ffic ie nt to c re a te the p o te ntia l fo r fo re ign in fluence and co u ld po ten t ia l ly resu lt in the co m p rom ise o f c lassif ied in fo rma tio n . 8 A p p lican t has f req uent c o n tac ts and a c lo se re la t ionsh ip o f affec t ion and /o r o b l iga t ion with h is s ib l in g s , w h o a re res id en ts and c i t izens o f N iger ia . T hese co n tac ts c rea te a r isk o f fo re ign p ressure o r a ttemp ted exp lo i ta t ion because the re is a lways the po ss ib i l i ty tha t N ige rian agen ts o r c r imina ls may exp lo i t the op p o rtun i ty to o b ta in in fo rm ation ab o ut the U nited S ta tes . H is co nnec t ion to his fam ily m em b ers a lso c rea te a po ten t ia l co nfl ic t o f in te re st because his re la t ionsh ip s a re su ffic ien t ly c lo se to ra ise a secur i ty conce rn abo u t h is des ire to he lp them by p rov id ing sensi t ive o r c la ss if ied info rm ation . 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 ) th e n a tu re o f th e re la t io n sh ip s w i th fo re ign perso n s , th e co u n try in w h ich th ese p erson s are loca ted , o r the po si t ion s or ac tiv i t ie s o f tho se person s in tha t coun try are such th a t i t i s u n like ly the ind iv idu a l w il l be p la ce d in a po s it io n o f ha ving to ch o o se b e tw e en th e in te r es ts o f a fo re ig n in d iv id u a l , g ro u p , o rg a n iza tio n , o r g o ve rn m e n t a n d the in terests o f th e U .S .; (b ) th e re is n o co n fl ic t o f in te re st , e i th e r b ec a u se th e in d iv id u a l ’ s se n se o f lo y a lty o r o b lig a tio n to th e fo re ig n p erso n , g ro u p , g o ve rn m e n t, o r c o u n tr y i s so m in im a l, o r th e ind iv idu a l ha s su ch deep an d lon g sta n d ing re la t ion sh ips a n d loya l t ie s in the U .S . , th a t th e in d iv id u a l ca n b e ex p ec te d t o r e so lv e a n y c o n fl ic t o f in te re st in fa v o r o f th e U .S . in te re st; a n d (c ) co n ta c t o r co m m u n ica tio n w ith fo re ig n c i t izen s is so ca su a l a n d in freq u e n t th a t th e re is l i t t le l ik e l ih o o d th a t i t co u ld cre a te a r i s k fo r fo re ig n in f lu e n ce o r e xp lo i ta t io n . A fte r co nsid e ring the to ta li ty o f the fa c ts an d c i r cum sta nc es in A p p lic an t’s ca se , I co nc lud e tha t m it iga ting co nd it io n A G ¶¶ 8 (a ) and (b ) ap p ly. A p p lic an t ha s s tro ng fe e l ings o f a ffe c t io n and a stro ng sense o f o b l iga t ion to his s ib l ings. T he c lo seness o f the re la t ionsh ip is sho wn by A p p lican t’s te lep ho ne co n tac ts with h is s ib l ings, the f inanc ia l sup p o rt p ro v ided to them , and his t rave ls to N ige ria . N o tw iths ta nd ing , A p p lic an t es ta b lishe d i t is un lik e ly h e wil l b e p la ce d in a p o si t io n o f h a v in g to cho o se be tween the in te res ts o f h is fam ily and the in te res ts o f the U nited S ta tes . I do no t T he focus is no t the coun try o r i ts peop le , bu t i ts ru le rs and the na tu re o f the gove rnmen t they9 im p o se . T h is ap pro ach reco gnizes tha t i t m akes sense to trea t each co untry in acco rd ance with the le v e l o f sec uri ty co ncern o r th rea t i t p re sen ts to the U nited S ta tes . b e l ieve A p p lican t ’ s r e la t ionsh ip with h is fam ily in N iger ia c rea tes a he igh tened r isk fo r fo re ign influence o r exp lo i ta t io n . In deciding whether Applicant’s family members are in a position to be exploited, I considered Nigeria’s form of government. Nigeria is a developing9 country that, so far, posses 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. A G ¶ 8 (b ) ap p l ies b ecause A p p lican t has d eve lop ed a s u ff ic ien t re la t ionsh ip and loya l ty to the U n ited S ta te s , tha t he can be expec ted to r eso lve any confl ic t o f in te re st i n fav o r o f the U n ited S ta te s’ in te re st . H e has l ived in the U n i ted S ta te s fo r app rox ima te ly 19 yea rs . H e is a na tu ra lized U .S . c i t izen and a l l o f h is f inanc ia l and b usiness in te res ts a re in the U nited S ta tes . A p p lican t h as es tab lished h im se lf as a n A m e r ic a n . H e w o rked hard as a teacher a t the C hr is tian schoo l , and a t the univers i ty co m p le t ing h is b ache lor ’s and m as te r ’s d egree s . H e co n tinues th is t rack record of d i l igen t lab o r in his curren t em p loym ent . U nd er G uid e l in e C ( Fo re ign P re ference) , when an ind ivid ua l ac ts in such a way as to ind ica te a p re fe re nc e fo r a fo re ign co untry o ve r the U nite d S ta te s, the n he o r she m a y b e p r o ne to p ro v id e info rm a tio n o r m ake d e cis io ns tha t a re ha rm ful to the in te re st o f the U nite d S ta te s. A G ¶ 9 . A p p lican t becam e a na tura l i z e d U .S . c i t izen in 2 0 0 3 and was issued a U .S . passp o rt sho rt ly th e r ea fte r . H e use d h is N ige ria n p a ssp o r t to t ra ve l to N ige ria in 2 0 0 4 , b e ca use he d id no t h a v e th e t im e to go th ro ugh the p ro cess o f req uest ing a v isa . H e a lso renewed h is N iger ian p assp o r t in 2 0 0 5 . A t h is he ar ing , he w as in p o sse ss io n o f a curre nt N ige ria n p assp o r t tha t d o es no t exp ire un ti l 2 0 1 0 . Fo re ign p re ference d isq ua l i fying co nd i t io n A G ¶ 1 0 : (a ) ex erc ise o f a n y r ig h t , p r iv ile g e , o r o b lig a tio n o f fo re ig n c i t izensh ip a f ter b eco m in g a U .S . c i t izen or th rou g h th e fo re ig n c i t izensh ip o f a fa m ily m em b er . Th is in c lud es b u t is no t l im ited to : (1 ) po ssess io n o f a c u rr en t fo re ign pa sspo r t , ap p l ies . A fte r conside r ing a ll the fo re ign p refe rence mit iga ting cond i t io n un d e r AG ¶ 11 , I f ind tha t none o f the mit iga ting co nd i t io ns app ly. Ap p l icant u sed and r enewed h is fo re ign passpo r t a fte r b e co m ing a U .S . c i t iz en , and re ce iv ing h is U .S . p assp o r t . A t h is he ar ing , he w as s t i l l in p o sse ss io n o f h is fo re ign passpo r t . H e p resen ted no evidence to show tha t h is u se o f t he fo re ign passpo r t was approved by a cogn izant secur i ty au tho r i ty , tha t he has expressed a wil l ingness to renounce h i s dual c it iz ensh ip , o r tha t h is p assp o r t ha s b ee n d es tro ye d , sur re nd e re d , o r o the rw ise inva lid a te d . A p p lican t’s te s t imo ny (and his p r io r s ta tem ents) ind ica ted tha t he ha s b een wil ling to re linqu ish his N ige rian passpo r t , tha t nobod y to ld h im to su rrende r h is N ige rian passpo r t , o r tha t there was a p rob lem with h im u s ing h is N iger ian p assp o r t . N o twiths tand ing h is asse r t io ns , A p p lican t was co nfro n ted ab o ut his p o sse ssio n and use o f a fo re ign passp o rt a t least three t im e s , i .e . , by a go ve rnm en t in v es t iga to r (G E 2 ) , thro ugh the D O H A inter ro ga to r ies , and by the SO R al legat io ns . A p p lica nt is 47 years o ld , and ho ld s a b a c h e lo r’s in E ng lish and a m aster ’s d eg ree in b us iness ad m inis t ra t ion . H e was p ro v ided a co p y o f the D irec t ive o u t l in in g the go vernm ent’s sec uri ty co ncerns . H e knew o r sho uld have kno wn o f th e g o v e rn m en t’s secu r i ty co ncerns ra ised by h is use AG & 30. 10 I am requ ired to co ns id er Ap p lican t =s o vera l l que s tio n a b le b e h av io r when eva lua t ing the11 se r io usness o f the co nd uc t a l leged in the SO R to de te rm ine fac to rs such as the ex ten t to which his b e h avio r is recen t; the l ike l iho o d of recur rence ; A p p lican t =s exp lana tio ns co ncern ing the c ircum stance s o f the inc iden ts a l leged ; and his rehab i l ita t ion . See I S C R C a s e N o . 0 4 -0 9 9 5 9 a t 3 (A p p . B d . M a y 1 9 , 2 0 0 6 ) . and po ssessio n of a cur ren t fo re ign pa ssp o r t and how to m it iga te them . H e has fa i l ed to m it iga te the securi ty co ncerns ra ised und er G uide l ine C . Under Guideline E (Personal Conduct), 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. AG & 15. Regarding SOR ¶ 3.a, Applicant admitted he failed to disclose that during the seven years preceding his security clearance application he traveled to Nigeria (in 2000), to Finland and Nigeria (during July-August 2001); to Denmark, Germany, and Nigeria (in 2002), and Nigeria (in 2004). Applicant testified he failed to disclose his travels to Nigeria because he believed Nigeria was not a foreign country and the United States was aware of his country of origin and that he had a Nigerian passport. Concerning SOR ¶ 3.b, Applicant admitted he failed to disclose that he had a valid Nigerian passport during the seven years preceding his security clearance application. He vehemently denied, however, that his omission was deliberate or with the intent to mislead the government. Applicant testified he mistakenly did not consider his country of birth a foreign country and failed to disclose he had a valid Nigerian passport. He believed the United States government was aware of his possession of a Nigerian passport because it was stamped numerous times by immigration authorities when he departed and entered the United States. Considering Applicant’s age, maturity, work history, level of education, travel history, and his demeanour and testimony, I find his omissions were deliberate. Analyzing the evidence as a whole, Applicant’s explanations concerning his failure to disclose the foreign countries visited and his possession of a Nigerian passport are not credible. Under Guideline J (Criminal Conduct), criminal activity creates doubt about a person=s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person=s ability or willingness to comply with laws, rules, and regulations. As discussed under Guideline E, above, Applicant deliberately10 falsified his security clearance application. His falsification is material and a violation of 18 U.S.C. ' 1001, a felony. Disqualifying Condition (DC) ¶ 31(a): a11 single serious crime or multiple lesser offenses and DC ¶ 31(c): allegation or admission of criminal conduct regardless of whether the person was formally charged, formally prosecuted or convicted, apply. ISC R Case N o . 03 -04 14 7 a t 3 (A pp . B d . N o v . 4 , 2 0 0 5) (quo t ing ISC R Case N o . 02 -01 09 3 a t1 2 4 (Ap p . B d . D ec . 11 , 20 0 3 ) . D o rfm o n t v . B ro w n , 91 3 F .2d 13 9 9 , 14 0 1 (9 C ir . 19 9 0 ) .1 3 t h After considering all the Criminal Conduct Mitigating Conditions under AG ¶ 32, I find they are not applicable to Applicant’s case. Applicant misconduct is recent, and not enough time has transpired for him to establish sufficient evidence of successful rehabilitation. In addition to the enumerated disqualifying and mitigating conditions as discussed previously, I have considered the general adjudicative guidelines related to the whole person concept under AG ¶ 2(a). “Under the whole person concept, the Administrative Judge must not consider and weigh incidents in an applicant’s life separately, in a piecemeal manner. Rather, the Judge must evaluate an applicant’s security eligibility by considering the totality of an applicant’s conduct and circumstances.” The directive lists nine adjudicative process factors (factors)12 which are used for “whole person” analysis. Additionally, other “[a]vailable, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.” AG ¶ 2(a). Ultimately, the clearance decision is “an overall common sense determination.” AG ¶ 2(c). Applicant’s testimony and his character reference statements show Applicant is a loyal U.S. citizen. There is no evidence he has ever taken any action which could cause potential harm to the United States. He takes pride in being an American citizen and would take up arms against those who try to harm the United States. He has worked diligently for his Christian church and for a defense contractor. Notwithstanding his favorable evidence, considering the totality of the facts and circumstances, including his background, education, maturity, work history, and outstanding character, Applicant failed to mitigate the security concerns raised by his behavior. “Because of the extreme sensitivity of security matters, there is a strong presumption against granting a security clearance. Whenever any doubt is raised . . . it is deemed best to err on the side of the government’s compelling interest in security by denying or revoking [a] clearance.” After weighing the disqualifying13 and mitigating conditions, all the facts and circumstances, in the context of the whole person, I conclude he has not mitigated the foreign preference, personal conduct, and criminal conduct security concerns. 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 C: AGAINST APPLICANT Subparagraphs 1.a – 1.b Against Applicant Paragraph 2, Guideline B: FOR APPLICANT Subparagraphs 2.a – 2.c For Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraphs 3.a – 1.b Against Applicant Paragraph 4, Guideline J: AGAINST APPLICANT Subparagraph 4.a Against Applicant DECISION In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant. Clearance is denied. Juan J. Rivera Administrative Judge