DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 07-16052 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Emilio Jaksetic, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
CREAN, Thomas M., Administrative Judge: 
 
Applicant submitted her Electronic Questionnaire for Investigations Processing 
(e-QIP) on November 2, 2006.  On May 27, 2008, the Defense Office of Hearings and 
Appeals (DOHA) issued a Statement of Reasons (SOR) for Applicant detailing security 
concerns for foreign influence under Guideline B and foreign preference under 
Guideline C.  The action was taken under Executive Order 10865, Safeguarding 
Classified Information within Industry (February 20, 1960), as amended; Department of 
Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review 
Program (January 2, 1992), as amended (Directive), and the revised adjudicative 
guidelines (AG) promulgated by the President on December 29, 2005, and effective 
within the Department of Defense for SORs issued after September 1, 2006.  
  
 Applicant answered the SOR in writing on June 9, 2008.  She admitted the 
factual allegations in the SOR but denied that the facts created security concerns.  She 
elected to have the matter decided on the written record in lieu of a hearing.  
Department Counsel submitted the Government’s written case on August 27, 2008.  
Applicant received a complete file of relevant material (FORM) on September 12, 2008, 
and was provided the opportunity to file objections, and submit material to refute, 
 
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extenuate, or mitigate the disqualifying conditions.  Applicant did not submit additional 
information.  The case was assigned to me on October 24, 2008.  Based on a review of 
the case file, pleadings, and exhibits, eligibility for access to classified information is 
denied. 
 
Procedural Issues 
 
 Department Counsel in the FORM asked that administrative notice be taken of 
certain facts concerning Nigeria (Item 5).  I have considered the request and the 
documents provided by Department Counsel.  Administrative notice is taken of the facts 
as noted below in the Findings of Fact. 
 
Findings of Fact 
 
 After a thorough review of the pleadings and exhibits, I make the following 
essential findings of fact.  Applicant admitted the factual allegations in the SOR with 
explanation.   
 
 Applicant is 34 years old and has been a consultant for a defense contractor for 
over two years.  For the two years before working for the defense contractor, she 
worked as a project administrator for another defense contractor.  She received her 
undergraduate degree from a Nigerian university and a master's degree from a United 
States university.  She is divorced with no children.  Applicant admits her mother and 
father are citizens and residents of Nigeria.  Applicant admits one of her sisters is a 
citizen of Nigeria but a resident of the Netherlands.  It is noted that in her e-QIP 
Applicant stated that this sister is a citizen of the Netherlands.  Since Applicant admitted 
to the SOR allegation that her sister was a citizen of Nigeria and a resident of the 
Netherlands, I find that the sister is a citizen of Nigeria residing in the Netherlands.  
Another sister is a citizen of Nigeria but a resident of the United States (Item 3, e-QIP, 
dated November 2, 2006; Item 2, Response to SOR, dated June 27, 2008).    
  
 There is no direct information when Applicant came to the United States.  She 
reports that she graduated with an undergraduate degree from a Nigerian university in 
December 1997.  She reports living in the United States commencing in January 1998.  
I find that she arrived in the United States in January 1998.  Applicant became a United 
States citizen on March 23, 2004.  Applicant also admits she has dual citizenship with 
Nigeria (See Item 3, e-QIP, dated November 2, 2006).   
 
 Applicant admits that her mother and sisters "mean the world to her" and that she 
keeps in contact with them.  She feels that she is doing only what a responsible 
daughter and sister would do.  Her family in Nigeria raised her and gave her the 
opportunity to come to the United States for an education and a career.  She maintains 
her Nigerian citizenship because her mother is still alive and as the oldest daughter she 
has the responsibility to settle her affairs in the future.  Neither of her parents are 
members of political organizations nor do they own property in Nigeria.  Applicant has 
 
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been in the United States for over 11 years and has not returned to Nigeria since she 
left (Case File, Response to SOR, dated June 9, 2008). 
 
 Applicant admits she still has a Nigerian passport.  The passport was issued to 
her in July 15, 1999, and expired on July 24, 2004.  Applicant admits that she still has 
possession of this Nigerian passport even though it has expired.  She wants to retain 
the Nigerian passport so she can go to Nigeria to resolve her mother's affairs upon her 
death.  She will use the passport to prove she was a Nigerian citizen and to ease the 
administrative requirements for her to enter Nigeria. She last used it in November 2003 
when she visited her sister in the Netherlands.  She is not willing to destroy or otherwise 
return the passport (Item 4, Interrogatories, dated March 10, 2008). 
 
 Applicant feels she has not indicated a preference for Nigeria over the United 
States.  She holds the United States in high esteem.  She has gained from being a 
resident and citizen of the United States.  Her ties to Nigeria merely show that she has a 
past.  Applicant points out that she has a good background investigation, her finances 
are in order, and she has no criminal record.  She has a graduate degree and owns her 
own house in the United States.  She is a law abiding citizen that just happens to have 
family ties to Nigeria.  Her mother has obtained a United States residency card and 
anticipates relocating to the United States soon (Case file, Response to SOR, dated 
June 9, 2008).   
 
 Applicant takes great pride in working in and being a citizen of the United States.  
She learned a lot working with military and civilian personnel.  She sees the great pride 
citizens have in the United States and what military personnel give up for this country.  
She is proud Americans are usually the first to respond to disasters.  She does not 
believe her dual citizenship should prevent her from having access to classified 
information (Case File, Response to SOR, dated June 9, 2008). 
 
 Nigeria is Africa’s most populated country.  Nigeria became independent from 
Great Britain in 1960, and has a constitutional parliamentary government.  The country 
was ruled by the military until 1999 when there was a democratic election bringing back 
civilian rule. (Item 5, FORM Exhibit 1, Background Note: Nigeria, United Stated 
Department of State, dated July 2008)  The Department of State continuously issues 
travel warnings because of chaos and lawlessness in Nigeria.  Lawlessness in Nigeria 
leads to car bombings, kidnapping of foreigners, and violent crimes.  Violence is 
particularly acute in the Niger Delta region.  Religious tension between Muslims and 
Christians results in occasional acts of communal violence.  Al-Qaida leadership has 
expressed interest in overthrowing the government.  Road and air travel are dangerous. 
(Item 5, Travel Warning Nigeria, dated October 30, 2007)  An additional warning 
concerning militant activities was recently issued by the United States Embassy in 
Nigeria.  It noted that militant groups are expanding their target areas with possible 
targets being expatriate personnel, western businesses or facilities, and areas visited by 
tourists and foreigners.  Personnel were advised to increase security and remain vigilant 
(Item 5, Warden Message, dated June 26, 2008). 
 
 
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 The government’s human rights record is poor and government officials commit 
serious human rights abuses.  These include the abridgment of rights to change 
government, politically motivated killings by security forces, use of excessive force and 
torture, restriction on free speech and press, and other physical human rights abuses. 
(Item 5, Country Reports on Human Rights Practices-2007, Nigeria, dated March 11, 
2008)   
 
 Nigeria has made progress in a fragile democracy.  Nigeria is one of the United 
States’ key strategic partners in Africa.  It became a major player in Africa helping to 
negotiate settlements with other countries and plays a vital role in peacekeeping 
operations.  Nigeria remains relatively stable although ethnic and religious clashes in 
part of the country are common. (Item 5, CRS Report to Congress, Nigeria: Current 
Issues, January 30, 2008) 
 
 There have been improved and strong ties between Nigeria and the United State 
since June 1998.  Bilateral relationships have continued to improve and there is good 
cooperation on many important foreign policy goals.  The Nigerian government has lent 
strong support to the United States government’s counter-terrorism efforts since 
September 11, 2001.  Nigeria has played a leading role in forging an anti-terrorism 
consensus among states in Sub-Saharan Africa. (Item 5, Background Notes on Nigeria, 
dated July 2008, at 11-12)  There is no evidence Nigeria has exploited its citizens to 
obtain classified information from United States citizens. 
 
Policies 
 
When evaluating an Applicant’s suitability for a security clearance, the 
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition 
to brief introductory explanations for each guideline, the adjudicative guidelines list 
potentially disqualifying conditions and mitigating conditions, which are useful in 
evaluating an Applicant’s eligibility for access to classified information. 
 
These guidelines are not inflexible rules of law. Instead, recognizing the 
complexities of human behavior, these guidelines are applied in conjunction with the 
factors listed in the adjudicative process. The Administrative Judge’s over-arching 
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 
2(c), the entire process is a conscientious scrutiny of a number of variables known as 
the “whole person concept.” The Administrative Judge must consider all available, 
reliable information about the person, past and present, favorable and unfavorable, in 
making a decision. 
 
The protection of the national security is the paramount consideration. AG ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for access to 
classified information will be resolved in favor of national security.” In reaching this 
decision, I have drawn only those conclusions that are reasonable, logical and based on 
the evidence contained in the record. Likewise, I have avoided drawing inferences 
grounded on mere speculation or conjecture. 
 
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Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The 
Applicant has the ultimate burden of persuasion as to obtaining a favorable security 
decision.  
 
A person who seeks access to classified information enters into a fiduciary 
relationship with the Government predicated upon trust and confidence. This 
relationship transcends normal duty hours and endures throughout off-duty hours. The 
Government reposes a high degree of trust and confidence in individuals to whom it 
grants access to classified information. Decisions include, by necessity, consideration of 
the possible risk the Applicant may deliberately or inadvertently fail to protect or 
safeguard classified information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
classified information. 
 
Analysis 
 
Guideline B: Foreign Influence 
 
 There is a security concern because foreign contacts and interests may indicate 
the individual has divided loyalties, may be manipulated or induced to help a foreign 
person, group, organization, or government in a way that is not in the U.S. interests, or 
is vulnerable to pressure or coercion by any foreign interests.  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 consideration 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) 
 
 Applicant's parents are citizens and residents of Nigeria.  Her sisters are citizens 
of Nigeria but one resides in the United States and the other in the Netherlands.  There 
is no direct evidence of the extent and frequency of Applicant's contact with her parents 
or sisters but she does state that the family is very close.  Since they are close, there 
must be contact between them.  The government has established that there is a 
heightened risk of foreign exploitation, inducement, manipulation, pressure, and 
coercion in Nigeria because Nigeria is a country with a poor human rights record and 
much lawlessness in the country necessitating a continuous and increased travel 
warning issued by the United States Government.  There have been kidnappings and 
killings of foreigners in Nigeria, particularly oil industry workers.  Applicant's parents in 
Nigeria raise security concerns under Foreign Influence Disqualifying Conditions (FI 
DC) AG ¶ 79(a) "Contact with a foreign family member, business or professional 
associate, friend, or other person who is a citizen of or resident in a foreign country if 
that contact creates a heightened risk of foreign exploitation, inducement, manipulation, 
pressure, or coercion"; and FI DC AG ¶ 7(b) "Connections to a foreign person, group, 
government, or country that create a potential conflict of interest between the 
 
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individual’s obligation to protect sensitive information or technology and the individual’s 
desire to help a foreign person, group, or country by providing that information".  There 
is no security concern for her sisters who are citizens of Nigeria but live in the United 
States and the Netherlands.  There is no heightened risk of foreign exploitation, 
inducement, manipulation, pressure, or coercion since they are not located in Nigeria. 
 
 I have considered Foreign Influence Mitigating Conditions AG ¶ 8(a) "the nature 
of the relationships with foreign persons, the country in which these persons are 
located, or the positions or activities of those persons in that country are such that it is 
unlikely the individual will be placed in a position of having to choose between the 
interests of a foreign individual, group, organization, or government and the interest of 
the U.S."; AG ¶ 8(b) "there is no conflict of interest, either because the individual’s 
sense of loyalty or obligation to the foreign person, group, government, or country is so 
minimal, or the individual has such deep and longstanding relationships and loyalties in 
the U.S., that the individual can be expected to resolve any conflict of interest in favor of 
the U.S. interest".  I have not considered AG ¶ 8(c) "Contact or communication with 
foreign citizens is so casual or infrequent that there is little likelihood that it could create 
a risk for foreign influence or exploitation".  There is no evidence presented by Applicant 
that contact with her parents is casual or infrequent.  This mitigating condition has not 
been raised by Applicant.  In fact because of Applicant's concern and feeling for her 
mother, it is assumed that the contact is frequent and not casual. 
 
 Under the old adjudicative guidelines, a disqualifying condition based on foreign 
family members could not be mitigated unless an applicant could establish that the 
family members were not “in a position to be exploited.”  The Appeal Board consistently 
applied this mitigating condition narrowly, holding that its underlying premise was that 
an applicant should not be placed in a position where she is forced to make a choice 
between the interest of her family member and the interest of the United States.  (See, 
ISCR Case No. 03-17620, App. Bd., Apr. 17, 2006; ISCR Case No. 03-24933, App. Bd. 
Jul. 28, 2005; ISCR Case No. 03-02382, App. Bd. Feb. 15, 2005; and ISCR Case No. 
03-15205, App. Bd. Jan. 21. 2005).  Thus, an administrative judge was not permitted to 
apply a balancing test to assess the extent of the security risk.  Under the new 
guidelines, however, the potentially conflicting loyalties may be weighed to determine if 
an applicant can be expected to resolve any conflict in favor of the United States 
interest. 
 
 In determining if Applicant’s family in Nigeria causes security concerns, I 
considered that Nigeria is an ally of the United States, has a defense agreement with 
the United States, and is one of the United States’ substantial trading partners.  While 
Nigeria has had a poor human rights record, I considered that Nigeria is improving its 
human rights position and its people enjoy basic freedoms.  There are no indications the 
government of Nigeria or any group of terrorists or lawless entities in Nigeria have 
targeted United States citizens or relatives of United States citizens to provide economic 
or other sensitive information.  While Nigeria is a country friendly to the United Stares, it 
could engage in espionage against United States interests.  Friendly countries may 
have profound disagreements with the United States or have engaged in espionage 
 
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against United States economic, scientific, or technical interest.  A friendly relationship 
is not determinative, but it makes it less likely that a foreign government would attempt 
to exploit a United States citizen through relatives or associates in that country.  Nigeria 
is not a hostile country, nor is its interests inimical to the United States.  The United 
States and Nigeria are large democracies, enjoy good relations, and are trading 
partners.  It is reasonable to consider that Nigeria would not take any action to 
jeopardize their friendly position with the United States because of their need for trade 
and defense assistance from the United States.  It would be considered an act 
unfriendly to the Nigerian interest with the United States to coerce its citizens with 
relatives in the United States to pressure their United States relatives to provide 
economic or other espionage information against the interest of the United States.  
While none of the considerations by themselves dispose of the issue, they are all 
factors to be considered in determining Applicant’s vulnerability to pressure or coercion 
from her family members in Nigeria. 
 
 Applicant has raised Foreign Influence Mitigating Conditions (FI MC) ¶ 8(a).  
Applicant states that her parents are not members of any political organization and do 
not own property in Nigeria.  There is no information presented by Applicant to establish 
where her parents live in Nigeria, their occupations, or what benefits are received from 
the Nigerian government.  She has not established her family members in Nigeria are 
ordinary citizens leading normal lives or that her family members’ living conditions, life 
style, and professions will likely not place her in a position to choose between the 
interests of her family and the interests of the United States.  FI MC ¶ 8(a) does not 
apply. 
 
 Applicant has raised FI MC ¶ 8(b) "there is no conflict of interest either because 
the individual’s sense of loyalty or obligation to the foreign person, group, government, 
or country is minimal, or the individual has such deep and longstanding relationships 
and loyalties in the U.S., that the individual can be expected to resolve any conflict of 
interest in favor of the U.S. interest".  Applicant’s vulnerability to duress is important.  
Applicant has been in the United States for over 11 years and a United States citizen for 
about four years.  Applicant’s assets are in the United States including her house, and 
she has no financial interest in Nigeria.  Applicant has not returned to Nigeria since she 
left the country.  However, Applicant has not demonstrated that she is not vulnerable to 
duress.  Applicant has a strong sense of loyalty or obligation to his parents in Nigeria.  
She has a connection and relationship to the United States, but she has not established 
that it is not stronger than the parent/child bond and sense of obligation she has to her 
parents in Nigeria.  She has not demonstrated that her feeling of loyalty to the United 
States will overcome her strong feelings and relationship with her parents in Nigeria.  FI 
MC ¶ 8(b) does not apply.  Applicant has not met her heavy burden to mitigate that her 
parents in Nigeria do not cause a security concern.   
 
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 she may be prone to provide information or make 
 
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decisions that are harmful to the interests of the United States (AG ¶ 9).  Applicant has 
an expired Nigerian passport in her possession that she refuses to relinquish or destroy.  
She will use the passport to facilitate her entry into Nigeria to settle her mother's affairs.  
She claims to be a dual citizen of Nigeria and the United States.  These actions raise 
Foreign Preference Disqualifying Condition (FP DC) AG ¶ 10(a) "Exercise of any right, 
privilege, or obligation of foreign citizenship after becoming a United States citizen or 
through the foreign citizenship of a family member.  This includes but is not limited to: 
(1) possession of a current foreign passport."  This security concern applies even 
though the passport is not current because Applicant intends to use the passport to 
facilitate her entry into Nigeria. 
 
Applicant is a dual citizen of Nigeria because she was born in Nigeria.  Foreign 
Preference Mitigating Condition (FP MC) AG 11(a) "Dual citizenship is based solely on 
parents' citizenship or birth in a foreign country" applies.  The United States Supreme 
Court has recognized a right under the United States Constitution for United States 
citizens to have a dual citizenship with another country (Afroyim v. Rusk, 387 U.S. 253 
(1967).  Eligibility for a security clearance must be determined by application of the 
disqualifying conditions for foreign preference to the factual circumstances.  The 
President in promulgating the disqualifying conditions could have specified that dual 
citizenship by itself was a security concern, but he did not.  The rule promulgated is for 
a security concern based on an exercise of dual citizenship.  Applicant has exercised 
her dual citizenship.  She maintains a foreign passport for future use to facilitate her 
actions to settle her mother's affairs.  Applicant also raised Foreign Preference 
Mitigating Conditions (FP MC) AG ¶ 11(b) "The individual has expressed a willingness 
to renounce dual citizenship", and FP MC AG ¶ 11(e) "The passport has been 
destroyed, surrendered to the cognizant security authority, or otherwise invalidated."  
These mitigating conditions do not apply.  Even though Applicant's Nigerian citizen is 
based on her birth in Nigeria, she is not willing to renounce her dual citizenship but 
affirmatively acknowledges that she is a dual citizen of Nigeria.  She retains possession 
of her Nigerian passport even though it has expired, and she affirmatively states she will 
not relinquish or destroy the passport.  Applicant has not mitigated security concerns for 
foreign preference raised by her exercise of foreign citizenship based on her possession 
of a Nigerian passport. 
  
“Whole Person” Analysis  
 
 Under the whole person concept, the Administrative Judge must evaluate an 
applicant’s security eligibility by considering the totality of the applicant’s conduct and all 
the circumstances. An administrative judge should consider the nine adjudicative 
process factors listed at AG ¶ 2(a):  
 
(1) the nature, extent, and seriousness of the conduct; (2) the 
circumstances surrounding the conduct, to include knowledgeable 
participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) extent to which 
 
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participation is voluntary; (6) the presence or absence of rehabilitation and 
other permanent behavioral changes; (7) the motivation for the conduct; 
(8) the potential for pressure, coercion, exploitation, or duress; and (9) the 
likelihood of continuation or recurrence. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant a security clearance 
must be an overall common sense judgment based upon careful consideration of the 
guidelines and the whole person concept.  
 
 I considered that Applicant came to the United States to enhance her education 
and that she has worked with defense contractors in support of the United States.  I 
considered that she has never returned to her native Nigeria since leaving and arriving 
in the United States over 11 years ago.  I considered the security situation in Nigeria 
created by terrorist groups requiring expanded travel warnings.  Applicant failed to 
present information that her contacts with her foreign citizen and resident parents do not 
create a security concern.  Access to classified information is denied. 
 
Formal Findings 
 
 Paragraph 1, Guideline C:  AGAINST APPLICANT 
 
  Subparagraph 1.a:  Against Applicant 
  Subparagraph 1.b:  Against Applicant 
  Subparagraph 1.c:  Against Applicant 
 
 Paragraph 2, Guideline B:  AGAINST APPLICANT 
 
  Subparagraph 1.a:  Against Applicant 
  Subparagraph 1.b:  Against Applicant 
  Subparagraph 1.c:  For Applicant 
  Subparagraph 1.d:  For Applicant 
  Subparagraph 1.e:  Against Applicant (as to mother only) 
 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge