1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01701 ) Applicant for Security Clearance ) Appearances For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ DAM, Shari, Administrative Judge: Applicant was born in Kenya. He became a naturalized U.S. citizen in 2002. He has numerous family members who are citizens and residents of Kenya. He has a current Kenyan passport that he uses to travel to and from Kenya. Applicant failed to present sufficient evidence to mitigate the foreign preference and foreign influence security concerns resulting from his connections to Kenya. Eligibility for access to classified information is denied. Statement of the Case On December 14, 2015, Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP). On June 17, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR), alleging security concerns under Guideline C, Foreign Preference, and Guideline B, Foreign Influence. The action was taken under 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 after September 1, 2006. The SOR detailed reasons why DOD could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant Applicant a security clearance. 2 Applicant answered (Answer) the SOR in writing on July 18, 2016, and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) assigned the case to me on September 19, 2016, and issued a Notice of Hearing on September 29, 2016, scheduling the hearing for October 19, 2016. The hearing convened as scheduled. The Government offered Exhibits (GE) 1 through 4 into evidence. Applicant testified and offered one exhibit (AE) A. All exhibits were admitted without objections. The record closed at the end of the hearing. DOHA received the transcript of the hearing (Tr.) on November 3, 2016. Findings of Fact Applicant did not specifically admit or deny the facts alleged in the SOR in his Answer. During his testimony, he admitted all facts alleged in the SOR. (Tr. 13-14.) His admissions, including those made in a December 21, 2015 Counterintelligence Focused Security Screening Questionnaire (CFSSC) and Interview, are incorporated as findings of fact. (GE 3.) Applicant, age 46, was born in Kenya in 1969. He was raised in Kenya and attended high school there. In 1995 he immigrated to the United States, having won a residency green card through a lottery. He became a naturalized U.S. citizen in August 2002. He served on active duty in the U.S. Navy from 1996 to 2000, at which time he received an honorable discharge as a petty officer 3rd class, and transferred to the U.S. Navy Reserve where he served until 2001. He served in the Army National Guard from 2001 to 2003, and left with an honorable discharge at a rank of E-4. From 2007 to the present, Applicant has worked for a public school system. In 2012 he earned a bachelor’s degree from a U.S. university. In 2015 he applied for a linguist position with a defense contractor. (Tr. 19-21, 52; GE 2, 3.) In February 2003 Applicant traveled to Kenya. He remained there until December 2003 during which time he married his wife, a Kenyan citizen and resident. He stayed with his mother, a Kenyan citizen and resident during this visit. (GE 3.) His wife subsequently became a naturalized U.S. citizen and resident. They have six children, one of whom was born in Kenya. All of the children are U.S. citizens and residents. (Tr. 17-18, 26.) Applicant does not own any property in Kenya. He recently purchased his first home in the United States. (Tr. 39.) He has a retirement account in the United States. (Tr. 51.) Applicant’s father is deceased. His elderly mother is a citizen and resident of Kenya. Applicant has sent her about $5,000 over the past several years. He gives her $300 or $400 a year and speaks to her every weekend. She has visited him twice in the United States. (Tr. 27-31.) Applicant has two brothers, two sisters, two sisters-in-law, and one-brother-in-law, all of whom are citizens and residents of Kenya. One brother is a member of the Kenyan parliament. He was formerly an ambassador to a Middle East country. Applicant speaks to this brother once a week and visits him when he is in Kenya. (Tr. 42-44.) Applicant’s other brother was an employee of a Kenyan governmental agency; he is a business owner now. Applicant speaks to him once a week and visits him when he is in Kenya. (Tr. 47.) Applicant’s sisters are homemakers 3 and their husbands work in private industry. He talks to his sisters less frequently, but at least annually. He speaks to two sisters-in-law and one brother-in-law annually. They are citizens and residents of Kenya. (Tr. 42; 45-47; GE 3; Answer.) Applicant’s mother-in-law is deceased. His father-in-law is a U.S. citizen, residing in Kenya. Applicant’s wife has six half-siblings, who are citizen residents of Kenya. (Tr. 27-28.) Applicant does not spend much time with these in-laws while visiting Kenya. (Tr. 38.) He does have annual contact with them. (GE 3.) Applicant has a current Kenyan passport, which was issued in May 2012 and will expire in May 2022. He has held a Kenyan passport since 1994, including after becoming a U.S. citizen in 2002. (GE 3.) He uses the Kenyan passport to travel to and from Kenya because it allows him to travel without obtaining a visa, paying fees, or completing documents. (Tr. 40-42.) He used that passport for visits to Kenya in 2003, 2007, 2008, 2010, 2011, 2013, 2014, 2015, and 2016. He intends to return to Kenya in the summer of 2017. He stays with his mother when he visits Kenya. Sometimes, he volunteers to work with Kenyan youth while there. (Tr. 33-38.) He also used his Kenyan passport to travel to Tanzania in 2013, and Rwanda and Somalia in 2014 because of its convenience in entering and exiting those countries without a visa or paying fees. He uses his current U.S. passport for travel to other countries. (Tr. 41; GE 1.) He said that he would not use the Kenyan passport if it interfered with obtaining employment with the U.S. Government. (Tr. 45.) In summarizing his case, Applicant said that he served the United States honorably while in the armed forces. He believes he would be an asset for the U.S. Government in its work in the Middle East because of his Kenyan background, military training, and linguistic skills. He asserted his love for this country. (Tr. 54-55.) Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used 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 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context 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 4 classified information will be resolved in favor of the 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. Directive ¶ E3.1.15 states that, “[t]he 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 applying for access to classified information seeks to enter 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. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny 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 Guideline C, Foreign Preference AG ¶ 9 sets forth the security concern involving foreign preference: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. AG ¶ 10 describes two conditions that could raise a security concern and may be disqualifying in this case: (a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport; and 5 (b) action to acquire or obtain recognition of a foreign citizenship by an American citizen. Applicant was born in Kenya. He came to the United States in 1995 and became a U.S. citizen in 2002. Based on his Kenyan citizenship, he has maintained a Kenyan passport since becoming a U.S. citizen. He renewed his current passport in 2012 and it expires in 2022. He has used the Kenyan passport at least nine times since 2003 to travel to and from Kenya and other countries, in order to avoid paying fees and having to obtain additional travel documents. The evidence raises the above disqualifying conditions and shifts the burden to Applicant to rebut, extenuate, or mitigate the security concern. AG ¶ 11 provides a condition that could mitigate security concerns in this case: (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. Applicant’s Kenyan passport has not been destroyed, surrendered to his security authority, or otherwise invalidated. The evidence does not establish mitigation under AG ¶ 11(e). Foreign Influence1 AG ¶ 6 explains the security concerns pertaining to foreign influence as follows: Foreign contacts and interest 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 sets out a condition that could raise a security concern and may be disqualifying in this case: (b) 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. 1Department Counsel chose not to seek administrative notice or offer other evidence concerning whether Kenya was known to target United States’ citizens to obtain protected information and/or is associated with a risk of terrorism; thus, no finding of heightened risk based on those factors is appropriate. 6 Applicant’s ongoing relationship with his mother, two brothers, and two sisters, who are citizens and residents of Kenya, create a potential conflict of interest for him. As a member of the Kenyan parliament, one of his brothers has a close connection to the Kenyan government. Another brother also had a close connection to the Kenyan government. These relationships are sufficiently close in nature to raise a security concern about his obligation or desire to assist those family members by providing sensitive or classified information, if faced with coercion from an outside source. In addition, he has two sisters-in-law, and one brother-in-law who are citizens and residents of Kenya. His father-in-law is a U.S. citizen, residing in Kenya. There is sufficient evidence to establish the above disqualifying condition under AG ¶ 7(b) based on these many relatives residing in Kenya. AG ¶ 8 lists conditions that could mitigate foreign influence security concerns. The three with potential application in mitigating the above security concerns in this case are: (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 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 (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation. AG ¶ 8(a) does not provide mitigation under the facts in this case. Applicant’s mother and siblings are citizens and residents of Kenya. One brother is a member of the Kenyan parliament and a former ambassador. His other brother is a former employee of a Kenyan government agency. That evidence raises the possibility that should adverse forces learn of Applicant’s work for the U.S. Government, the well-being of Applicant’s family members could be threatened to the point that Applicant would confront a choice between his family’s interests and those of the United States. AG ¶ 8(b) has some application. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.,” such that he “can be expected to resolve any conflict of interest in favor of the U.S. interest.” Applicant has lived in the United States since 1995 and became a citizen in 2002. His wife is a naturalized U.S. citizen. His six children are U.S. citizens. He has some economic ties to the United States, including a financial interest in a recently purchased 7 piece of real estate and money in a 401(k). He attended a U.S. university. He has worked for a public school system for ten years. He honorably served in the U.S. military for about seven years. In sum, Applicant’s has some strong connections to the United States. However, those connections to the United States do not sufficiently outweigh his ties or affection for his family in Kenya, which are demonstrated by his financial support for his mother and frequent visits there to see family members. The evidence does not clearly establish that if Applicant were placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States, that he would choose the United States. AG ¶ 8(c) does not apply. Since leaving Kenya in 1995, Applicant has maintained ongoing frequent contact with his mother and brothers, who are citizens and residents of Kenya. He also has regular but less frequent contact with his sisters and in-laws. Since 2003 he has visited his family at least nine times, and intends to return to Kenya in 2017. His mother has visited him in the United States. These contacts are neither casual nor infrequent. 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 relevant 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 facts and circumstances surrounding this case. Some mitigating evidence weighs in favor of granting Applicant a security clearance. He is an intelligent and articulate person, who has lived in the United States since 1995 and served in Navy and National Guard. He has worked for a public school system for the past ten years. He obtained a degree from a U. S. university. He has financial interests in the United States. He lives with his wife and six children, all of whom are U.S. citizens. Out of his sense of patriotism for the United States, Applicant would like to assist the U.S. Government’s endeavors as a linguist in the Middle East. 8 Five circumstances weigh against Applicant in the whole-person analysis. First, Applicant has at least nine family members who are citizens and residents of Kenya. They include his mother, two brothers, and two sisters, two sisters-in-law, one brother- in-law, and a father-in-law. One brother is a member of the Kenyan parliament and another brother is a former employee of a Kenyan governmental agency. Applicant has ongoing connections to those family members. Foreign entities could attempt to use Applicant’s family members to obtain protected information and compromise Applicant’s responsibilities to the United States. Second, Applicant had numerous connections to Kenya before he immigrated to the United States in 1995. He spent his formative years in Kenya and attended high school there. Third, he visits Kenya frequently and stays for long periods. Fourth, Applicant has maintained an active Kenyan passport since becoming a U.S. citizen. He uses that passport when he travels there and to surrounding countries because it provides logistical and financial conveniences for him. Fifth, while his loyalty and connections to family members in Kenya are positive familial traits, as is his volunteer work with Kenyan youth, for security clearance purposes these connections are more significant and persuasive than the factors in favor of granting him a security clearance. After weighing the disqualifying and mitigating conditions, and all facts and circumstances in the context of the whole-person, Applicant has not sufficiently mitigated the security concerns arising under Guideline C and Guideline B. Overall, the record evidence leaves me doubt as to Applicant’s eligibility and suitability for a security clearance. 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 through 1.c: Against Applicant Paragraph 2, Guideline B: AGAINST APPLICANT Subparagraphs 2.a through 2.e: Against Applicant 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. __________________ Shari Dam Administrative Judge