1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00874 ) Applicant for Security Clearance ) Appearances For Government: Benjamin R. Dorsey, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MURPHY, Braden M., Administrative Judge: Applicant mitigated the security concerns about her family connections to Nigeria under Guideline B, foreign influence. Applicant’s eligibility for a security clearance is granted. Statement of the Case On July 11, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under foreign influence. The action was taken under Executive Order (EO) 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 effective within the DOD for SORs issued after September 1, 2006. Applicant answered the SOR on July 26, 2016, and elected to have her case decided on the written record in lieu of a hearing. On August 26, 2016, Department 2 Counsel submitted the Government’s file of relevant material (FORM), along with documents identified as Items 1 through 5. Applicant received the FORM on September 1, 2016. Applicant was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant replied on September 26, 2016, and submitted three attachments. The FORM Response and the attachments are marked as Applicant’s Exhibits (AE) A through D. AE A, B and D are admitted without objection.1 Applicant did not object to any of the Items offered by the Government. The SOR and the answer (Items 1 and 2) are the pleadings in the case. Items 3 and 4 are admitted without objection. Item 5 and AE C are the parties’ requests for administrative notice. The case was assigned to me on April 27, 2017. Request for Administrative Notice Both parties submitted written requests that I take administrative notice of certain facts about Nigeria.2 Without objection, I have taken administrative notice of the facts contained in the requests that are supported by source documents from official U.S. Government publications. The facts are summarized in the Findings of Fact, below. Findings of Fact Applicant admitted the SOR allegations. Her admissions and other comments are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact. Applicant is 40 years old. She was born in Nigeria. She immigrated to the United States in 2007, after finishing college in Nigeria. She has lived in the United States ever since. Applicant became a U.S. citizen in 2014. She was married from 2011 to 2013. She has no children. She earned a master’s degree in 2014 from a university in the United States. She worked for a telecommunications company from 2008 to 2014. She was unemployed for a period after earning her master’s degree. Applicant has worked in information technology for a defense contractor since March 2015. She completed a security clearance application in connection with that employment.3 Applicant’s mother (SOR ¶ 1.a) is a Nigerian citizen. She moved to the United States in December 2015, and is now a permanent U.S. resident. She lives with one of Applicant’s sisters in the United States. Applicant’s mother is in her sixties. She is a retired homemaker.4 Applicant maintains regular, frequent contact with her mother.5 1 AE B is another copy of the Government’s FORM. It is therefore duplicative, but is nonetheless admitted. 2 Item 5; AE C. 3 Item 2. 4 Answer; Items 3, 4; AE A. 5 Answer; AE A. 3 Applicant has three sisters who are citizens and residents of Nigeria. (SOR ¶ 1.c). One sister is a married mother of two children. Her husband works for an oil company. The second sister is an administrative assistant for a private company. The third sister is a student.6 Applicant’s brother (SOR ¶ 1.b) is also a citizen and resident of Nigeria. He is currently an engineering student at a Nigerian university.7 These siblings all reside in southern coastal Nigeria.8 Applicant returned to Nigeria in 2010 for her father’s funeral. She returned for memorial services in 2011 and again in December 2013. She returned in April 2014 to help her mother prepare to move to the United States. Applicant has not visited Nigeria since then.9 Applicant was in monthly contact with her siblings before her mother relocated. As the oldest daughter, she felt a responsibility to monitor her mother’s care, particularly when her mother fell ill. Since her mother’s move, Applicant communicates with them less frequently, mostly on birthdays and holidays. Applicant’s siblings are between the ages of 25 and 38 and are financially independent. Applicant does not provide them financial support. Applicant’s hope is that her siblings will be able to immigrate to the United States, as she, her sister, and her mother have done.10 Applicant provided letters of recommendation from four character references: her pastor; a U.S. government employee who knows her well; her former professor, and a former co-worker. All of her references attested to Applicant’s responsibility, value to her community, and loyalty to the United States. All expressed their belief that were Applicant ever presented with a conflict of interest between the United States and another interest, she would resolve that conflict in the best interests of the United States.11 Nigeria is a federal republic located in Western Africa. It is the largest economy and most populous country in Africa.12 Since gaining its independence, Nigeria has faced many challenges, including terrorist activity, sectarian conflicts, entrenched 6 Answer. 7 AE A, Answer, Items 3, 4. 8 AE A. 9 AE A. 10 AE A. 11 AE D. 12 AE C. 4 corruption, and widespread mistrust of the government. Nigerian security forces, particularly the police, have been accused of serious human rights abuses.13 Boko Haram, a U.S.-designated Foreign Terrorist Organization, has grown increasingly active and deadly in its attacks against state and civilian targets, primarily northern Nigerian states. In 2014, the group’s abduction of almost 300 schoolgirls drew international attention.14 The United States has established a strategic dialogue with Nigeria to address issues of mutual concern. The United States is the largest foreign investor in Nigeria. The United States seeks to help improve the economic security, stability and well-being of Nigerians by strengthening democratic institutions, improving transparency and accountability and professionalizing security forces.15 In general, the security situation in Nigeria remains fluid and unpredictable. The U.S. State Department warns U.S. citizens to avoid travel to a number of Nigerian states because of the risk of kidnapping, robberies, and other armed attacks.16 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 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 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. 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 13 Item 5. 14 Item 5. 15 AE C. 16 Item 5. The State Department’s most recent travel warning for Nigeria advises that these concerns remain. See https://travel.state.gov/content/passports/en/alertswarnings/nigeria-travel-warning.html. (U.S. State Department Travel Warning for Nigeria, issued April 5, 2017). 5 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, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and 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 that an applicant may deliberately or inadvertently fail to 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. Section 7 of Exec. Or. 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline B, Foreign Influence AG ¶ 6 expresses the security concern regarding foreign influence: 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. I have considered all of them and the following are potentially applicable: 6 (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 (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. AG ¶ 7(a), requires evidence of a “heightened risk.” The “heightened risk” required to raise this disqualifying condition is a relatively low standard. It denotes a risk greater than the normal risk inherent in having a family member living under a foreign government or owning property in a foreign country. The totality of Applicant’s family ties to a foreign country as well as each individual family tie must be considered. 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.”17 The nature of Applicant’s relationship to her family members, coupled with Nigeria’s serious human rights issues, the threat of terrorism, and the government’s inability to stem corruption, raise a heightened risk that Applicant might be subject to foreign exploitation, inducement, manipulation, pressure, and coercion through her family members. It also creates a potential conflict of interest. AG ¶¶ 7(a) and 7(b) have been raised by the evidence. I have analyzed the facts and considered all of the mitigating conditions under AG ¶ 8 and conclude the following are potentially applicable: (a) the nature of the relationship 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 and 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 interests in favor of the U.S. interests; and 17 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 7 (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. Applicant’s mother has relocated to the United States, and is a permanent U.S. resident. This significantly lessens the risk that Applicant might be subject to exploitation, coercion, or duress through her mother, though she remains a Nigerian citizen. Applicant’s siblings are not employed with the Nigerian government. They do not reside near any area that terrorists are known to operate. Nigeria is not known to conduct intelligence operations against the United States. Indeed, Nigeria’s economy and stability is heavily dependent on aid and investment from the United States. However, in light of the matters accepted for administrative notice, AG ¶ 8(a) has limited applicability. Applicant met her heavy burden of persuasion in establishing the applicability of AG ¶ 8(b) to her circumstances. She left Nigeria in 2007 to further her education in the United States. She has created a life for herself in the United States, earning a graduate degree, beginning a promising professional career, and forming strong relationships with those she has come in contact with through school, church, and work. She has strong ties to her community here. Most of Applicant’s siblings remain in Nigeria, but she has not returned since before her mother moved to the United States in 2015. Applicant can be expected to resolve any conflict of interest in favor of the best interests of the United States. AG ¶ 8(b) applies. Now that her mother has relocated to the United States, Applicant has infrequent contact with her siblings, on birthdays and holidays. Applicant does not provide them financial support. She has not visited Nigeria since 2014. AG ¶ 8(c) applies. 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. 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. 8 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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. After carefully weighing the evidence, both favorable and unfavorable, and considering the whole-person factors set forth in AG ¶ 2(a), I find that Applicant mitigated the heightened concerns raised by her family connections to Nigeria. The record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under Guideline B, foreign influence. 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 B: FOR APPLICANT Subparagraphs 1.a-1.c: 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’s eligibility for a security clearance. Eligibility for access to classified information is granted. _____________________________ Braden M. Murphy Administrative Judge