DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 10-04255 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Julie Mendez, Esq., Department Counsel 
For Applicant: Joseph Testan, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
LYNCH, Noreen A., Administrative Judge: 
 
This case involves security concerns raised under Guideline B (Foreign 
Influence). Eligibility for access to classified information is granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on November 23, 2009. On 
April 26, 2011, the Defense Office of Hearings and Appeals (DOHA) sent him a 
Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny his 
application, citing security concerns under Guideline B. DOHA acted 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 
adjudicative guidelines (AG) implemented by the Department of Defense on September 
1, 2006.  
 
 Applicant received the SOR and timely requested a hearing before an 
administrative judge. The case was assigned to me on June 16, 2011. DOHA issued a 
notice of hearing on June 27, 2011, scheduling the hearing for July 26, 2011.  
 
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Government Exhibits (GX) 1 and 2 were admitted in evidence without objection. 
Applicant testified, presented the testimony of two witnesses, and submitted Applicant’s 
Exhibits (AX) A through J, which were admitted without objection. DOHA received the 
transcript (Tr.) on August 2, 2011. 
 
Administrative Notice 
 
Department Counsel requested that I take administrative notice of relevant facts 
about India. The request and supporting documents are attached to the record as HX I. 
Applicant did not object to documents. (Tr. 13) I took administrative notice as requested 
by Department Counsel. The facts administratively noticed are set out below in my 
findings of fact. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted the factual allegations in the SOR 
under Guideline B (Foreign Influence) and offered explanations. He provided additional 
information to support his case. His admissions in his answer and at the hearing are 
incorporated in my findings of fact.  
 
 Applicant is a native of India. He received his undergraduate degree in India. He 
did not serve in the military in India. He came to the United States in 1990 on a student 
visa and obtained an advanced degree from an American university in 1992. In 2001, 
Applicant obtained another graduate degree in computer science. He has almost 20 
years experience in the field of information technology, and has been with his current 
employer since 2010. Applicant has held a security clearance since 2006. (AX F) He 
became a naturalized U.S. citizen in July 2002, (GX 1). Immediately after Applicant 
obtained his U.S. citizenship, he surrendered his Indian passport and renounced his 
Indian citizenship. (Tr. 37)  
 
Applicant’s wife also is a native of India. They were married in March 1998, and 
they have one son. His wife came to the United States in 2002. (Tr. 42) She became a 
naturalized U.S. citizen in 2008.  
 
 Applicant’s son is a U.S. citizen. He was born in Canada and came to the United 
States in 2002. He was never an Indian citizen (Tr. 44) Under Indian law, dual 
citizenship is not recognized. (AX F) Applicant never applied for a special status for his 
son, such as the Overseas Citizens of India Program or the Person of Indian Origin 
Program. (AX A) 
 
Applicant’s parents are citizens and residents of India. His father, who is 67 years 
old, owned a small business. His mother, who is 62 years old, is a homemaker. They 
are not aware of Applicant’s work or his application for a security clearance. (Tr. 49) 
They do not speak English. They have no affiliation with the government. Applicant 
speaks to them on the phone every few weeks.  He visited them in 2007 and 2009 for 
about ten days each trip. (Tr. 68) 
 
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 Applicant’s three sisters are citizens and residents of India. Two sisters are 
married homemakers. His third sister is mentally ill and is cared for by Applicant’s 
mother.  Neither his sisters nor brothers-in-law know that Applicant is seeking a security 
clearance. Applicant does not have extensive contact with his brothers-in-law, but he 
speaks to his two sisters once every two or three weeks. His unmarried sister lives with 
his mother. Applicant speaks to her when he calls his mother. (Tr. 47) He also does not 
have contact with his sister-in-law. (Answer to SOR) Applicant’s wife speaks to her 
sister on the phone once a month. (Tr. 64) 
 
 Applicant’s father-in-law is a citizen and resident of India. His father-in-law is 
retired. Applicant’s father-in-law does not depend on Applicant and his wife for financial 
support. (Tr. 45) Applicant speaks to his father-in-law once a year or less. His wife calls 
him once every two or three months. (Tr.66) 
 
  Applicant and his wife own a home in the United States. The value of the home 
is approximately $400,000. He and his wife have savings and retirement accounts worth 
about $100,000 or more. (AX I) Their real estate in the United States is jointly owned. 
(AX J)  Applicant has a college savings plan for his son. (AX G) 
 
 Applicant explained at the hearing that he came to the United States to receive 
an education.  He plans to live the rest of his life in the United States, and raise and 
educate his children in the United States. He has roots in the United States both 
professionally and personally. His wife and son are with him in the United States. His 
wife is established in a career. His son is in middle school and participates in many 
activities. His family attends a local temple. Applicant has worked his adult life in the 
United States and has deep and long-term relationships. He has held a clearance and 
handled sensitive information, providing service to the U.S. Government through his 
work with government contractors. Applicant was credible when he explained that if in 
the unlikely situation that there would be pressure on him or his family, he would 
immediately contact his facility security officer. (Tr. 49)  
 
 Applicant’s team manager recommends him for a security clearance. He testified 
at the hearing that Applicant is dependable and does an excellent job. (Tr. 17)  
Applicant possesses excellent skills, work ethic, and experience. Applicant is a valued 
member of the team. In sum, Applicant is described as honest, forthright, reliable, and 
of the highest character. (Tr. 20) 
 
 The Director of the defense contract group for whom Applicant works, has known 
Applicant since 2009. She described Applicant as having unique technology skills and 
expertise. (Tr. 25) He has had access to confidential data and has not had any incidents 
with failing to protect such data. His clients describe him as a hard worker who follows 
through on given tasks. (Tr. 26) Applicant is conscientious about deadlines and is well 
regarded by his peers. Applicant has been involved in some challenging projects and 
received positive feedback.  
 
 
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 Applicant submitted twelve letters of recommendation from peers, friends, and 
former supervisors who have known him since 1995. He is admired for his sense of 
dedication, responsibility, and good sense of judgment. He is a loyal citizen and a 
responsible member of the community. (AX B) 
 
 India is a multiparty, federal, parliamentary democracy, with a bicameral 
parliament and a population of approximately 1.1 billion. Its political history since it 
gained independence from Great Britain in 1947 has included several armed conflicts 
with Pakistan, assassinations of two prime ministers, sporadic outbreaks of religious 
riots, and violent attacks by several separatist and terrorist groups in different parts of 
the country. There is a continuing threat from terrorism throughout the country, including 
attacks on targets where U.S. citizens or Westerners are known to congregate or visit.  
 
 India’s size, population, and strategic location give it a prominent voice in 
international affairs. India has always been an active member of the United Nations. 
Starting this year, it is a non-permanent member of the Security Council, and it seeks a 
permanent seat on the Security Council. 
The United States and India have differences over India’s nuclear weapons 
programs, the pace of India’s economic reforms, and India’s bilateral strategic 
partnership with Iran. Nevertheless, the United States recognizes that India is important 
to U.S. strategic interests. The strategic partnership between the United States and 
India is based on shared values such as democracy, pluralism, and the rule of law. 
Since 2002, the United States and India have held a series of substantive combined 
exercises involving all military services.  
The United States is India’s largest foreign investment partner. Since December 
2006, direct civilian nuclear commerce with India has been permitted. The two countries 
have a common interest in the free flow of commerce and resources, including through 
the vital sea lanes of the Indian Ocean. 
The United States and India share a common interest in fighting terrorism and in 
creating a strategically stable Asia. They are seeking to foster bilateral relations by 
establishing working groups to address (1) strategic cooperation; (2) energy and climate 
change; (3) education and development; (4) economics, trade, and agriculture; and (5) 
science and technology, health, and innovation.  
 
 In the past, India had long-standing military supply relationships with the Soviet 
Union, and Russia remains India’s largest supplier of military systems and spare parts. 
India is one of many countries engaged in economic intelligence collection and 
industrial espionage directed at the United States. The United States has longstanding 
economic issues with India regarding protection of intellectual property rights and trade 
in dual-use technology. There have been numerous incidents of international 
businesses illegally exporting, or attempting to export restricted, dual-use technology 
from the United States to India. 
 
 
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 The Indian Government generally respects the rights of its citizens, but there are 
serious problems involving abuses by police and security forces. Corruption in the 
police force is pervasive, and police officers often act with impunity. Abuses by police 
and security forces have occurred primarily in criminal investigations and efforts to 
suppress separatist and terrorist groups. There is no evidence that India uses torture or 
abuse against its citizens to extract economic intelligence.  
 
 India does not recognize dual citizenship. Foreign citizens entering India are 
required to obtain a visa. Travelers entering on tourist visas are not allowed reentry 
within two months, unless they obtain specific permission. Non-citizens of Indian origin 
may obtain a “person of Indian origin” (PIO) card, which allows unlimited travel to and 
from India.  
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available, reliable information about the person, 
past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk the applicant may deliberately or inadvertently fail to safeguard classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about potential, rather than actual, risk of compromise of classified information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 
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 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline B, Foreign Influence 
 
 The SOR alleges Applicant’s mother is a citizen and resident of India (¶ 1.a), 
Applicant’s father is a citizen and resident of India (¶ 1.b), his three sisters are citizens 
and residents of India (¶ 1.c), Applicant father-in-law is a citizen and resident of India (¶ 
1.d), Applicant’s three brothers-in-law are citizens and residents of India (¶ 1.e). It also 
alleges Applicant’s sister in-law is a citizen and resident of India (¶ 1.f). 
 
 The security concern under this guideline is set out in AG ¶ 6: 
 
Foreign contacts and interests may be a security concern if the individual 
has divided loyalties or foreign financial interests, 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. 
 
 Four disqualifying conditions under this guideline are relevant to this case.  First, 
a disqualifying condition may be raised by “contact with a foreign family member, 
 
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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.” AG ¶ 7(a). Second, a disqualifying 
condition may be raised by “connections to a foreign person, group, government, or 
country that create a potential conflict of interest between the 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.” AG ¶ 7(b). Third, a security 
concern may be raised if an applicant is “sharing living quarters with a person or 
persons, regardless of citizenship status, if that relationship creates a heightened risk of 
foreign inducement, manipulation, pressure, or coercion.” AG ¶ 7(d). Fourth a security 
concern also may be raised by “a substantial business, financial, or property interest in 
a foreign country, or in any foreign-owned or foreign-operated business, which could 
subject the individual to heightened risk of foreign influence or exploitation.” AG ¶ 7(e). 
 
 Guideline B is not limited to countries hostile to the United States. “The United 
States has a compelling interest in protecting and safeguarding classified information 
from any person, organization, or country that is not authorized to have access to it, 
regardless of whether that person, organization, or country has interests inimical to 
those of the United States.”  ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).  
 
 Furthermore, “even friendly nations can have profound disagreements with the 
United States over matters they view as important to their vital interests or national 
security.” ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 
2002). Finally, we know friendly nations have engaged in espionage against the United 
States, especially in the economic, scientific, and technical fields. Nevertheless, the 
nature of a nation’s government, its relationship with the U.S., and its human rights 
record are relevant in assessing the likelihood that an applicant’s family members are 
vulnerable to government coercion. The risk of coercion, persuasion, or duress is 
significantly greater if the foreign country has an authoritarian government, a family 
member is associated with or dependent upon the government, or the country is known 
to conduct intelligence operations against the U.S. In considering the nature of the 
government, an administrative judge must also consider any terrorist activity in the 
country at issue. See generally ISCR Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) 
(reversing decision to grant clearance where administrative judge did not consider 
terrorist activity in area where family members resided). 
 
 Applicant has lived and worked in the United States since 1990. He is a 
naturalized U.S. citizen. Applicant’s wife and son reside in the United States. His son is 
a U.S. citizens and his wife is a U.S. citizen. His son is not a dual citizen with India. 
Neither Applicant nor his wife and son have any special status with India. 
 
Applicant’s parents, three sisters and brothers-in-law are citizens and residents 
of India. His wife’s mother, father, and sibling are citizens and residents of India. 
A[T]here is a rebuttable presumption that a person has ties of affection for, or obligation 
to, the immediate family members of the person's spouse.@ ISCR Case No. 01-03120, 
 
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2002 DOHA LEXIS 94 at * 8 (App. Bd. Feb. 20, 2002). Applicant has not rebutted this 
presumption.  
 
After considering the totality of Applicant’s family ties to India as well as each 
individual tie, I conclude that Applicant’s family ties are sufficient to raise a heightened 
risk of foreign exploitation, inducement, manipulation, pressure, or coercion. Applicant 
speaks to his father-in-law once or twice a year on the phone. He speaks to his family 
on the phone every few weeks. His wife speaks to her family on occasion. Based on all 
these circumstances, I conclude that AG ¶¶ 7(a), (b), and (d) are raised. Applicant’s 
financial interests in India are non existent. I conclude that AG ¶ 7(e) is not an issue. 
 
 Security concerns under this guideline can be mitigated by showing that “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 interests of 
the U.S.” AG ¶ 8(a). India engages in economic and industrial espionage, and it has 
been involved in incidents involving illegal importation of restricted, dual-use technology 
from the United States. Applicant’s parents are citizens and residents of India. His 
siblings are citizens and residents of India. His father-in-law, brothers-in-law, and sister-
in-law are citizens and residents of India. For these reasons, I conclude that AG ¶ 8(a) 
is not established.  
 
 Security concerns under this guideline can be mitigated by showing “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.” AG ¶ 8(b). 
Applicant has held a security clearance without incident for many years. He has worked 
with government contractors during this time. Applicant’s financial interests are totally in 
the United States. He and his wife have personal assets, including a home, in the 
United States worth more than $500,000. Applicant and his wife surrendered their 
Indian passports and use their U.S. passports. They have not taken advantage of the 
convenience of an Indian PIO card. I conclude that Applicant would resolve any conflict 
between the interests of the United States and his family in India in favor of the United 
States. Thus, I conclude that AG ¶ 8(b) is established.  
 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
conduct and all relevant 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 
 
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participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) the extent to 
which 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 eligibility for a 
security clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. I have incorporated my 
comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 
2(a) were addressed under that guideline, but some warrant additional comment. 
 
 Applicant is a naturalized U.S. citizen who has lived in the United States since 
1990. He and his wife reside in the United States with their son who is a U.S. citizen. 
His wife is a U.S. citizen. He was articulate, candid, sincere, and credible at the hearing. 
He and his wife still have cultural, family, and emotional attachments to India, but they 
see the United States as the future home for their family. Applicant has been successful 
in the defense contracting business for many years. He has held a security clearance. 
His current employer recommends him for his professionalism and integrity.  
 
 Applicant chose to leave his home and emigrate from India in search of an 
education and career opportunities. He wants to provide for his family in the United 
States. He has worked hard in the information technology field and has received praise 
for his work ethic and accomplishments. Applicant purchased a home and has 
maintained excellent credit. He has a net worth of more than $500,000. His family 
intends to remain in the United States.  
 
 India is a partner of the United States in the global war on terrorism. While 
terrorism and some domestic unrest exist within some areas of India, none of it appears 
to threaten the enclave in which Applicant’s family and property are located. There is no 
evidence any of the individuals at issue are involved with, or under scrutiny, by interests 
antithetical to the United States. Applicant has not returned to India since 2009. 
 
 Regarding Applicant’s life in the United States, he is a contented American 
citizen, with a stable family, social, and professional life. His life is focused here. He is 
admired by his peers. He and his wife intend to continue their lives in the United States. 
There is no evidence indicating that he may be manipulated or induced to help a foreign 
power or interest. He credibly stated he would report any attempts to influence him to 
security. In light of these facts and the country at issue, I find that Applicant successfully 
mitigated foreign influence concerns.  
 
 After weighing the disqualifying and mitigating conditions under Guideline B, and 
evaluating all the evidence in the context of the whole person, I conclude Applicant has 
mitigated the security concerns based on foreign influence. Accordingly, I conclude he 
 
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has carried his burden of showing that it is clearly consistent with the national interest to 
grant him eligibility for access to classified information. 
 
     Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline B (Foreign Influence):   FOR APPLICANT 
 
  Subparagraphs 1.a-1.f:     For Applicant 
 
Conclusion 
 
 I conclude that it is clearly consistent with the national interest to grant Applicant 
eligibility for a security clearance. Eligibility for access to classified information is 
granted. 
 
 
 
 
Noreen A. Lynch 
Administrative Judge