1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) REDACTED ) ISCR Case No. 16-02099 ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MENDEZ, Francisco, Administrative Judge: Applicant presented sufficient evidence to mitigate alleged security concerns raised by his relatives and financial interests in the United Kingdom (U.K.). He also mitigated alleged foreign preference concerns. Clearance is granted. Statement of the Case On July 27, 2016, the Department of Defense (DoD) Consolidated Adjudications Facility (CAF) sent Applicant a Statement of Reasons (SOR) alleging security concerns under the foreign influence and foreign preference guidelines.1 Applicant answered the SOR and requested a determination on the written record (Answer). On October 24, 2016, Department Counsel prepared the Government’s written case, known as a file of relevant material (FORM), and sent it to Applicant. With the FORM, Department Counsel forwarded to Applicant four exhibits (Items 1 – 4) that the Government offers for admission into the record. Applicant submitted a response to the 1 Pursuant to Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, and DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). The CAF applied the previous version of adjudicative guidelines, which were in force from September 1, 2006 to June 7, 2017. 2 FORM (Response), and submitted three documents for admission into the record (Exhibits A – C). The offered exhibits are admitted into the record without objection.2 On July 1, 2017, I was assigned Applicant’s case. The record closed on July 7, 2017, when I received confirmation that Applicant remained sponsored for a clearance. Findings of Fact Applicant, 47, was born in the U.K. He and his wife, who have been married for 20 years, immigrated to the United States in 2000. They became U.S. citizens in 2014, and their two children were born in the United States. Applicant holds two master’s degrees, one from a school in the U.K. and another from a U.S. school. He is the managing partner of his own U.S. firm. He is seeking a security clearance to work on a multi-national contract (no U.K. involvement). Applicant has a number of relatives (parents, sibling, in-laws, and an aunt) who are citizens and residents of the U.K. He also owns real estate in the U.K., which is currently worth an estimated $200,000. The property is Applicant’s and his wife’s former home in the U.K., which they purchased for about $50,000. They currently rent the property. Applicant has other financial interests in the U.K. totaling about $500,000, primarily consisting of professionally managed retirement accounts. These retirement accounts consist of mutual fund investments in U.S. and U.K. stocks. Applicant cannot access the funds held in these accounts until he reaches retirement age. Applicant and his wife own their home in the United States. They also own another U.S. property. Their U.S. real estate holdings are worth approximately $2 million. Applicant’s U.S. bank accounts and investment accounts total another $2 million. He formed a U.S. domestic corporation in 2012 in the state in which he resides. This is the business he currently owns and operates. Applicant fully reported the information about his foreign relatives, financial interests, and travel on his security clearance application. He also reported his dual citizenship and that he held a foreign passport, which he received before becoming a U.S. citizen. Since becoming a U.S. citizen, Applicant has only traveled internationally using his U.S. passport. He discussed these matters fully during a security clearance interview. He subsequently returned his U.K. passport to U.K. authorities. 2 Applicant did not raise an objection to any of the exhibits offered by the Government. However, he did note in his Response that the summary of his security clearance interview (Item 4) contained inaccurate information. The inaccurate information is irrelevant to the security concerns at issue and, thus, any potential concerns as to the reliability of the exhibit are rendered moot. Nevertheless, I have considered Applicant’s Response in assessing the amount of weight to give the interview summary. ISCR Case No 03-21434 at 5 (App. Bd. Feb. 20, 2007) (“the DOHA process encourages Judges to err on the side of initially admitting evidence into the record, and then to consider . . . what, if any, weight to give to that evidence.”). See also ISCR Case No. 14-06011 (App. Bd. Dec. 9, 2015) (“The weight that a Judge assigns to evidence is a matter within his or her discretion.”). 3 Law, Policies, and Regulations “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Individuals are eligible for access to classified information “only upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2. On December 10, 2016, the Director of National Intelligence issued Security Executive Agent Directive 4 (SEAD-4), revising the adjudicative guidelines. These revised adjudicative guidelines are applicable to all security clearance decisions issued on or after June 8, 2017. Accordingly, I have applied the revised adjudicative guidelines (“AG”). ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DoD policy and standards). When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. AG ¶ 2. Department Counsel must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Applicants are responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven . . . and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. Administrative Judges must remain fair and impartial, and conduct all hearings in a timely and orderly manner. Judges must carefully balance the needs for the expedient resolution of a case with the demands of due process. Therefore, an administrative judge will ensure that an applicant: (a) receives fair notice of the issues, (b) has a reasonable opportunity to address those issues, and (c) is not subjected to unfair surprise. Directive, ¶ E3.1.10; ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014). In evaluating the evidence, a judge applies a “substantial evidence” standard, which is something less than a preponderance of the evidence. Specifically, substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive, ¶ E3.1.32.1. Any doubt raised by the evidence must be resolved in favor of the national security. AG ¶ 2(b). See also SEAD-4, ¶ E.4. Additionally, the Supreme Court has held that responsible officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531. 4 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. 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 an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Analysis Guideline B, Foreign Influence Foreign contacts and interests . . . are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. 3 A person is not automatically disqualified from holding a security clearance because they have relatives and financial interests in a foreign country. Instead, in assessing an individual’s potential vulnerability to foreign influence, an administrative judge considers the foreign government involved; its relationship with the United States; its intelligence-gathering history; the country’s human rights record; and other pertinent factors. See generally AG ¶ 6. See also ISCR Case No. 05-03250 at 4 (App. Bd. Apr. 6, 2007) (factors an administrative judge should consider in foreign influence cases). In assessing the security concerns at issue, I considered all the Guideline B disqualifying and mitigating conditions, including the following: AG ¶ 7(a): contact, regardless of method, with a foreign family member, . . . if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;4 AG ¶ 7(b): connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology; 3 AG ¶ 6. 4 Department Counsel concedes that Applicant’s contact with his relatives in the U.K. do not raise a heightened risk of foreign exploitation. Counsel, however, then goes on to argue that such a risk potentially exists due to a purported 2002 incident involving the public disclosure of U.S. classified information by the British parliament. No evidence or matter for administrative notice was offered regarding this alleged incident. See FORM at 2-3. I have not considered this portion of counsel’s argument, as he is arguing (purported) facts not in evidence. 5 AG ¶ 7(f): substantial business, financial, or property interests in a foreign country . . . that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest; 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 . . . and the interests of the United States; AG ¶ 8(b): there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; AG ¶ 8(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(e): the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and AG ¶ 8(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. In the instant case, the foreign country at issue is the U.K., which is generally regarded as the United States’ closest ally and both countries share a special relationship. They are the leading democracies and a model for other nations to emulate when it comes to the rule of law and the protection of individual rights and liberties. Nonetheless, foreign influence security concerns are not wholly resolved simply because the country at issue is a friendly one, for even friendly nations can disagree on matters that they consider vital to their national interest and not all cases of espionage against the United States have involved hostile nations.5 Applicant’s familial and financial connections to the U.K. are not insignificant. However, when compared and contrasted to the personal and professional bonds that Applicant has established in the United States, these foreign connections are not enough to raise a true security concern. Of note, Applicant and his wife permanently immigrated to the United States nearly 20 years ago. They started a family in the United States and their children, who were born and raised in the United States are now teenagers. Applicant started a successful business in the United States and the majority 5 ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002). 6 of his wealth is held in the United States. In light of the preceding and considering the country at issue, Applicant can be expected to resolve any potential conflict of interest involving his foreign connections in favor of the United States. Furthermore, Applicant fully reported his foreign relatives, financial interests, and travel on his security clearance application. He then voluntarily agreed to a security clearance interview, where he discussed these matters fully. No evidence was submitted that he or any of his family members have any connection to any foreign government or are indebted to any foreign government or entity. After reviewing the entire record and weighing the evidence, both favorable and unfavorable, I find that all the above listed mitigating conditions apply. Applicant met his heavy burden of proof and mitigated the alleged security concerns arising from his relationship to his relatives and financial interests in the U.K. Guideline C, Foreign Preference A security concern arises when an individual acts in such a way as to indicate a preference for a foreign country over the United States. Such action may indicate that the person may provide information or make decisions that are harmful to the Untied States. However, foreign citizenship by itself does not raise a security concern under Guideline C, unless the foreign citizenship is in conflict with U.S. national security interests or the person attempted to conceal the information about his foreign citizenship. See generally AG ¶ 9. Applicant’s dual citizenship and past possession of a U.K. passport do not raise a foreign preference security concern. No evidence was presented that he has exercised any right or privilege of foreign citizenship, or accepted any foreign benefit. Moreover, he self-reported his dual citizenship, foreign passport, and other foreign connections. He surrendered the U.K. passport to U.K. authorities. Accordingly, the Guideline C allegation is also decided in Applicant’s favor. Overall, the record evidence leaves me with no questions or doubts about Applicant’s present eligibility for a security clearance.6 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 (Foreign Influence): FOR APPLICANT Subparagraphs 1.a – 1.e: For Applicant Paragraph 2, Guideline C (Foreign Preference): FOR APPLICANT Subparagraph 2.a: For Applicant 6 In reaching this conclusion, I considered the whole-person concept. See AG ¶ 2. 7 Conclusion In light of the record evidence, it is clearly consistent with the interest of national security to grant Applicant eligibility for access to classified information. Applicant’s request for a security clearance is granted. ____________________ Francisco Mendez Administrative Judge