1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02347 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ GARCIA, Candace Le’i, Administrative Judge: No foreign preference security concerns are raised by Applicant’s surrendered Indian passport. Applicant mitigated the foreign influence security concerns raised by her family in India, to include her father’s retired service with the Indian army. Eligibility for access to classified information is granted. Statement of the Case On September 12, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline C, foreign preference, and Guideline B, foreign influence. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.1 1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Applicant answered the SOR on September 30, 2016, and elected to have her case decided on the written record in lieu of a hearing. The Government’s written case was submitted on October 18, 2016. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on October 24, 2016. Applicant did not respond. The case was assigned to me on August 8, 2017. The Government exhibits identified as Items 1 through 3 are admitted in evidence without objection. Department Counsel requested that I take administrative notice of certain facts about India. The request was included in the record as Item 4. The request is not admitted in evidence but I have taken administrative notice of the facts contained in Item 4. The facts administratively noticed are summarized in the Findings of Fact, below. Findings of Fact Applicant is a 28-year-old quality assurance tester employed by a defense contractor since December 2015. She obtained a high school diploma in India in 2006, and a bachelor’s degree from an Indian university in 2009. She has never held a DOD security clearance. She is married to an Indian-born, naturalized U.S. citizen, and she has two minor children, both of whom are native-born U.S. citizens. Applicant and her husband have owned their home in the United States since 2013.2 Applicant was born in India to Indian parents. She immigrated to the United States in 2010. She was naturalized as a U.S. citizen in July 2014, and she obtained a U.S. passport in August 2014. She renounced her Indian citizenship and surrendered her Indian passport, issued to her in December 2009 with an expiration date of December 2019, in September 2014. She used her U.S. passport when she traveled to India in December 2014.3 Applicant’s mother, father, two brothers, sister, and two sisters-in-law are citizens and residents of India. In November 2015, Applicant filed an I130 Petition for Alien Relative, sponsoring the permanent residency to the United States of her mother, father, two brothers, and sister. As of August 2016, the petitions were approved and pending further processing by the U.S. Department of State National Visa Center.4 Applicant’s mother is a 54-year-old housewife. She has never been affiliated with the Indian government or military. Applicant’s father is a 55-year-old farmer. He served in the Indian army from 1980 until he retired in 1997. Since his retirement, he has not been affiliated with the Indian military. Applicant communicates with her parents once 2 Items 1-3. 3 Items 1-3. 4 Items 1-3. 3 monthly, by telephone, written correspondence, and electronically. She visited them in India in December 2012 and December 2014.5 Applicant’s two brothers, sister, and two sisters-in-law in India are not affiliated with the Indian government or military. As of September 2016, one brother worked on the family farm and the other brother was studying in New Zealand. Her sister works as a clerk in a convent school. Her two sisters-in-law are housewives, and Applicant telephones them seven to eight times yearly.6 Applicant and her husband sponsored his parents to live with Applicant and her family in the United States. Her father-in-law has lived in the United States since 2010, and her mother-in-law since 2015. Her family in India are looking forward to moving to the United States as well. Applicant does not have any foreign assets. She promptly reports all foreign travel to her employer. She stated that her allegiance lies with the United States.7 India The Office of the National Counterintelligence Executive in its 2009 to 2011 report to Congress stated that the intelligence services, private sector, and citizens of dozens of countries, including U.S. allies and partners, target sensitive U.S. economic information and technology. It identified in its 2008 annual report to Congress on foreign economic collection and industrial espionage, India and seven other countries as being involved in economic and industrial espionage. An earlier version of the report named India as among the most active collectors of U.S. economic and proprietary information. The most heavily targeted sectors include aeronautics, information systems, lasers and optics, sensors, and marine systems. The information and communications technology sector will likely remain one of the highest priorities of foreign collectors, and foreign entities are expected to continue their efforts to collect information on the full array of military technologies in use or under development. The U.S. Department of Justice has identified numerous recent criminal cases concerning export enforcement related to proprietary defense information, economic espionage, theft of trade secrets, and embargo-related criminal prosecutions involving both the government of India and private companies and individuals in India. Illegal technology transfers, even to private Indian entities, are a significant concern because foreign government entities have learned to capitalize on private-sector technology acquisitions. Anti-Western terrorist groups, including some on the U.S. Government’s list of 5 Items 1-3. 6 Items 1-3. 7 Items 1-3. 4 foreign terrorist organizations, are active in India. Throughout 2015, India continued to experience terrorist attacks, including operations launched by terrorist groups based in Pakistan. In its March 2017 worldwide travel caution, the U.S. Department of State continued to warn U.S. citizens that India continues to experience terrorist and insurgent activities that may affect U.S. citizens directly or indirectly. India also continues to experience significant human rights abuses. The U.S. Department of State reported in March 2017 that India’s most significant human rights problems were police and security forces abuses, including extrajudicial killings, torture, and rape; corruption which remained widespread and contributed to ineffective responses to crime, including those against women and children; and societal violence based on gender, religious affiliation, and caste or tribe. Other human rights problems included disappearances, hazardous prison conditions, arbitrary arrest and detention, and lengthy pretrial detention. Rape, domestic violence, dowry-related deaths, honor killings, sexual harassment, and discrimination against women and girls remain serious problems. Crimes against women are common. Contributing to these abuses is a lack of accountability for misconduct at all levels of government, resulting in a culture of widespread impunity. 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 national security eligibility 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. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 5 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 Executive Order 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 EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline C, Foreign Preference The security concern for foreign preference is set out in AG ¶ 9: 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 provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual's judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship. The guideline notes the following conditions that could raise security concerns under AG ¶ 10: (a) applying for and/or acquiring citizenship in any other country; (b) failure to report, or fully disclose when required, to an appropriate security official, the possession of a passport or identity card issued by any country other than the United States; (c) failure to use a U.S. passport when entering or exiting the U.S.; 6 (d) participation in foreign activities, including but not limited to: (1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and (2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests; (e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law; and (f) an act of expatriation from the United States such as declaration of intent to renounce U.S. citizenship, whether through words or actions. None of the disqualifying conditions above apply. I find SOR ¶ 1.a in Applicant’s favor. Guideline B, Foreign Influence The security concern for foreign influence is set out in AG ¶ 6: Foreign contacts and interests, including, but not limited to, business, financial, and property 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. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are potentially applicable in this case: (a) contact, regardless of method, 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; (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 7 individual’s desire to help a foreign person, group, or country by providing that information or technology; and (e) shared 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. The nature of a nation’s government, its relationship with the United States, 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 United States. 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). AG ¶ 7(a) requires substantial evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government. Applicant’s parents, two brothers, sister, and two sisters-in-law are citizens and residents of India. Her father served in the Indian army from 1980 until he retired in 1997. Her family in India creates a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. AG ¶¶ 7(a), 7(b), and 7(e) have been raised by the evidence. Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable: (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 United States; (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; and 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. Applicant maintains contact with her family in India. Accordingly, AG ¶¶ 8(a) and 8(c) are not established for the reasons set out in the above discussion of AG ¶¶ 7(a) and 7(b). Applicant has made the United States her home since she immigrated here in 2010. She renounced her Indian citizenship and surrendered her Indian passport in September 2014, after she was naturalized as a U.S. citizen and was granted a U.S. passport. She used her U.S. passport to travel to India in December 2014. Her husband is a naturalized U.S. citizen. Her two children were born in the United States. Her parents-in-law live with her, after she and her husband sponsored their move to the United States from India. She has no foreign assets. She and her husband have owned their home in the United States since 2013. While Applicant’s father served in the Indian military, he retired in 1997 and has not since had any affiliations with the Indian military. As of August 2016, Applicant’s petition to sponsor her mother, father, two brothers, and sister to the United States was approved and pending further processing. Applicant met her burden to demonstrate that she would resolve any conflict of interest in favor of the U.S. interest. AG ¶¶ 8(b) is established. 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 relevant 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. 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 and Guideline C in my whole-person analysis. Applicant’s ties to India are outweighed by her ties in the United States. I am confident that she will resolve any conflict of interest in favor of the United States. 9 After weighing the disqualifying and mitigating conditions under Guideline B and Guideline C, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by her foreign family connections. Accordingly, I conclude she has carried her burden of showing that it is clearly consistent with the national interest to grant her eligibility for access to classified information. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline C: For Applicant Subparagraph 1.a: For Applicant Paragraph 2, Guideline B: For Applicant Subparagraphs 2.a-2.b: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. _______________________ Candace Le’i Garcia Administrative Judge