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                              DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 12-11502
)
Applicant for Security Clearance )
Appearances
For Government: 
Jeff Nagel, Esquire, Department Counsel
For Applicant: 
Sean M. Bigley, Esquire
August 20, 2015
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Decision
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GOLDSTEIN, Jennifer I., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigation Processing (e-
QIP) on March 12, 2012. On January 26, 2015, the Department of Defense issued a
Statement of Reasons (SOR) detailing the security concerns under Guideline B
(Foreign Influence). 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 adjudicative guidelines
(AG) effective within the Department of Defense for SORs issued after September 1,
2006. 
 
Applicant submitted an Answer (AR) to the SOR on March 11, 2015, and
requested a hearing before an administrative judge. I received the case assignment on
June 16, 2015. A notice of hearing was issued on June 19, 2015, and I convened the
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hearing as scheduled on July 10, 2015. The Government offered Hearing Exhibits (HE)
I and II, and Government Exhibit (GE) 1. GE 1 was received without objection. Applicant
testified on his own behalf, called one witness, and submitted HE A and Applicant
Exhibits (AE) A through F. AE A through F were also admitted without objection. DOHA
received the transcript (Tr.) of the hearing on July 20, 2015. The record was left open
for the submission of additional administrative notice material, and on July 13, 2015,
Applicant’s counsel presented  two additional exhibits, marked AE G and H. Department
Counsel filed no objections and AE G and H were admitted into the record. Based upon
a review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Procedural Ruling
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to the Republic of India (India), contained in HE I. Applicant’s
counsel raised various objections to the admissibility of some of the governmental
documents referenced, but not provided, by Department Counsel in support of his
request. Applicant’s counsel was particularly concerned with the age of some
documents. (Tr. 18.) Applicant’s counsel also submitted an administrative notice request
contained in HE A at hearing. (Tr. 22.) His requests and the referenced documents were
not admitted into evidence but were included in the record. The facts administratively
noticed are set out in the Findings of Fact, below. 
Findings of Fact
Applicant is 51 years old, married, and has two minor children that are both U.S.
citizens. He immigrated to the United States in 1987 and was naturalized as a U.S.
citizen in 2000. He possesses a master’s degree from an American university. He has
been employed by a defense contractor since 2005, and seeks a security clearance in
connection with his employment in the defense industry. This is his first application for a
security clearance. (GE 1; Tr. 64-66, 68-70.)
Applicant was part of a minority community in India. During a vacation to another
Indian city in 1984, he was brutally beaten by a mob of locals who used racial slurs
during their attack. Applicant lost consciousness and was seriously injured. He still
bears physical facial scars from the attack. He explained:
The incident left a scar on my heart and mind. Riots and killings of
minorities like Sikhs, Muslims, and Christians are common place in the
country. This incident reaffirmed my resolve to get out of India and start a
new life in USA. I moved to USA in 1987 and have never once thought of
going back to settle in India. My kids, my wife and my life and my loyalty
are here. (AE G.)
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He left India for the United States as a result of this incident. Applicant presented
documentation to support his claims regarding the violence against his minority that
occurred in India in 1984. (AE H.) He testified that he does not “fit in” in India. (TR. 35-
38.)
The Government alleges that Applicant is ineligible for clearance because he has
foreign contacts and interests that could lead to the exercise of poor judgment,
unreliability or untrustworthiness on his part, or make him vulnerable to pressure or
coercion. Applicant admitted subparagraphs 1.a and 1.b in the SOR. He denied SOR
subparagraphs 1.c and 1.d. (AR.)
Applicant’s mother is a citizen and resident of India. She is 84 years old. She
worked as an English professor in a semi-private university in India, but is now retired
from that position. She is supported by a pension from the Indian government. Applicant
visits her annually in India. He uses his American passport to travel to India. He speaks
to his mother frequently to inquire about her health. Applicant’s father passed away in
2007. (GE 1; Tr. 48-49.)
Applicant’s mother-in-law and father-in-law are also citizens and residents of
India. Applicant’s father-in-law is a retired landscaper for a city government in India. His
mother-in-law is a homemaker. They are supported by the pension his father-in-law
earned from the city government for which he worked. His wife talks to her parents by
phone once a week, although Applicant only talks to them once or twice a year on
holidays. Applicant’s wife discusses her children and the health of her parents during
their conversations. Applicant’s wife also visits her parents once each year in India. (GE
1; Tr. 28-34, 49.)
When Applicant’s father passed away in 2007, he and his sister inherited real
estate in India from their father. They sold the plot they inherited because it was not
located close to their mother, and reinvested the money into four different properties in
India, where their mother could monitor them. At most, the properties were worth
approximately $500,000, but Applicant’s share was only $250,000. The rupee has since
declined significantly against the dollar, and the value of the properties has declined.
Applicant has tried to sell all four properties for the past two years. He has successfully
divested himself of his share of three of the properties and provided documentation of
their sale. The remaining property, an office space, is currently being leased to a tenant,
but will be sold at the termination of the lease. He receives no part of the rent. Applicant
testified his share of that property is only about $78,000. Additionally, that property is
not titled in Applicant’s name. He plans to use the funds from the sale of that property to
finance his daughter’s college education in the United States, but testified that he has
money saved in a 529 savings plan for her college tuition in case he loses his share of
his investment in India. He has no intent to invest in India in the future. He also has a
bank account in India valued at $200. His wife has a one-third interest in forest land she
inherited, valued at approximately $1,666. (AE D; AE E; Tr. 39-47, 63-65, 68.)
1All of the following statements are supported by the documents submitted by the Department Counsel in HE
I or Applicant’s counsel in HE A, in support of their requests for administrative notice and the referenced
documents or attachments. 
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In 2002 Applicant was diagnosed with an autoimmune disorder. He was told he
only had two-to-five years to live, unless he had a kidney transplant. He was placed on
his state’s kidney transplant list in 2005 and told there would be a five-year wait. His
family members were unable to donate a kidney to him due to compatibility issues. He
went on dialysis. His physician informed him that a hospital in Pakistan had successfully
done a kidney transplant for another patient and that he should investigate that option.
Applicant traveled to Pakistan in December 2007 and had a kidney transplant. He was
hospitalized for one week in Pakistan. After the transplant, Applicant crossed the
boarder into India and planned to travel back to the United States. However, he
developed a severe infection that required his hospitalization in India from December
2007 to January 2008. When he recuperated enough to travel, he flew to the United
States and was hospitalized here. He discussed his plans to get a kidney transplant in
Pakistan with his employer and they expressed no concerns. He was in regular contact
with his employer during his six-month recovery. (Tr. 50-56.)
Applicant has over one million dollars worth of assets in the United States,
consisting of real estate, bank savings, stocks, bonds, mutual funds, and personal
property. His sister is a citizen of the United States, residing in Singapore. He and his
wife are active in their children’s parent-teacher associations. They volunteer for
community activities. He testified his entire social circle is in the United States. (GE 1;
AE F; Tr. 38, 47, 73.)
Applicant’s coworkers wrote letters of support on his behalf. He is said to have a
strong work ethic, and to be honest, loyal, and trustworthy. He is highly regarded by his
peers and his program offices. (AE C.)
Administrative Notice
Applicant has contacts with India. Accordingly, it is appropriate to discuss the
current situation concerning India and the United States.1 India is the most populous
democracy in the world. There have been incidents in the past when parties in the United
States attempted to export military or dual-use technologies to India. There have been
numerous and recent cases concerning export enforcement, economic espionage, theft
of trade secrets, and embargo-related criminal prosecutions involving the government of
India, private companies, and individuals in India. In addition, there is a history of political
differences between the United States and India. Finally, there are concerns with
widespread human rights problems and terrorist activity, particularly in northwest India.
(HE I.)
However, this year the President of the United States and the Prime Minister of
India signed the “Dehli Declaration of Friendship.” The Office of the Press Secretary at
the White House issued a press release about the Declaration. India has emerged as a
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growing partner and President Obama indicated “we see India’s emergence as good for
the United States and good for the world.” President Obama issued a press release that
indicated the United States and India collaborate on economic growth, advancements in
energy and climate change, defense, and homeland security. Both countries renewed
the “2005 Framework for the U.S.-India Defense Relationship” in 2011. India’s
tremendous economic growth offers a key market for U.S. exports and India is among
the “fastest growing investors in the United States.” Trade between the two nations is
strong. (HE A.)
Policies
Security clearance decisions are not made in a vacuum. When evaluating an
applicant’s suitability for a security clearance, the administrative judge must consider the
adjudicative guidelines. In addition to brief introductory explanations for each guideline,
the adjudicative guidelines list potentially disqualifying conditions and mitigating
conditions, which are to be used as appropriate 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 AG ¶ 2(a) describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense 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. In addition, the administrative judge may also rely on
his or her own common sense, as well as knowledge of the law, human nature, and the
ways of the world, in making a reasoned decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that, “Any 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.
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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance 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
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classified information. Security clearance decisions include, by necessity, consideration
of the possible risk that 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.
 
Finally, as emphasized in Section 7 of Executive Order 10865, “Any determination
under this order adverse to an applicant shall be a determination in terms of the national
interest and shall in no sense be a determination as to the loyalty of the applicant
concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access
to classified or sensitive information).  
Analysis
It is the Government's responsibility to present substantial evidence to support the
finding of a nexus, or rational connection, between the applicant's conduct and the
granting or continued holding of a security clearance. If such a case has been
established, the burden then shifts to the applicant to go forward with evidence in
rebuttal, explanation or mitigation, which is sufficient to overcome or outweigh the
Government's case. The applicant bears the ultimate burden of persuasion in proving
that it is clearly consistent with the national interest to grant him or her a security
clearance.
Paragraph 1 (Guideline B - Foreign Influence)
The concern under Guideline B is expressed as follows at 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.
AG ¶ 7 describes conditions that could raise a security concern and may be
disqualifying. The following three conditions are potentially:
(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;
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(d) 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; and
(e) 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. 
Applicant’s mother and in-laws are citizens and residents of India. He travels to
India annually, and spent time recuperating there after his kidney transplant. He also
shares living quarters with his wife, who has ties to her parents in India. Disqualifying
conditions AG ¶¶ 7(a) and 7(d) require both the presence of foreign contacts and a
heightened risk. I find there is sufficient evidence regarding terrorist activities in India and
the Indian government’s human rights abuses to establish a heightened risk. I find AG ¶¶
7(a) and 7(d) apply.  
Additionally, although he divested himself of the majority of his assets in India, he
still has a financial interest in an office space in India valued at $78,000. Applicant has
sufficient financial interests in India to raise this concern. AG ¶ 7 (e) applies.
 
Applicant has provided compelling evidence to show that the following mitigating
conditions under AG ¶ 8 also apply to this case, given his particular background: 
(a) the nature of the relationships with foreign persons, the country in which
these people 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.; 
(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; and
(f) the value or routine nature of the foreign business, financial, or property
interests is such that they are unlikely to result in a conflict and could not
be used effectively to influence, manipulate, or pressure the individual.
Applicant proved that he is a conscientious and patriotic citizen, and member of
the defense industry. He has lived in the United States for more than 28 years. His wife
and children are U.S. citizens. He has substantial family and financial ties in the United
States that significantly outweigh his contacts and sole remaining investment in India.
His mother and in-laws are low-visibility pensioners in India. That status, along with the
absence of any significant Government or political affiliation, plus the improved U.S.
relations with India, minimize any heightened risk of exploitation from their presence
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there. The testimony and record show that Applicant has completely and fully assimilated
into the American way of life. He understands and appreciates what the United States
has provided him: an advanced education, a successful career, and a good life free of
the discrimination he faced in India. As stated, his net worth in the United States is over
one million dollars. Based on my analysis of the available information, Applicant has
overcome the adverse inference arising from his property and family members’ presence
in India. There is no conflict of interest for Applicant. Given the history of discrimination
he faced in India and his deep longstanding relationships in the United States, he can be
expected to resolve any conflicts in favor of the U.S. interest. Guideline B is found for
Applicant.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of the applicant’s
conduct and all the circumstances. 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. The 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) 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.      
I considered the potentially disqualifying and mitigating conditions in light of all the
facts and circumstances surrounding this case. My Guideline B analysis is applicable to
the whole-person analysis as well. I have also specifically examined the relationship
between the United States and India, which has improved dramatically, particularly this
year. The evidence shows that Applicant is a patriotic American citizen. Applicant
testified eloquently, emotionally, and at great length about the importance to him of being
a citizen of the United States. He is highly respected for his integrity and honesty by
those that provided reference letters for him. Accordingly, based on the available
evidence, I find that there is little or no “potential for pressure, coercion, exploitation, or
duress” as set forth in AG ¶ 2(a)(8). Using the whole-person standard, Applicant has
mitigated the security significance of his alleged foreign influence and is eligible for a
security clearance. 
On balance, it is concluded that Applicant has successfully overcome the
Government's case opposing his request for a DoD security clearance. Accordingly, the
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evidence supports a finding for Applicant as to the factual and conclusionary allegations
expressed in Paragraph 1 of the Government's Statement of Reasons.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR, as
required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline B: FOR APPLICANT
Subparagraphs 1.a through 1.d: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant Applicant eligibility for a security clearance.
Eligibility for access to classified information is granted.
                                              
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Jennifer I. Goldstein
Administrative Judge