DATE: January 31, 2007
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SSN: -----------------------
Applicant for Security Clearance
ECISION OF ADMINISTRATIVE JUDGE
ROBERT J. TUIDER
APPEARANCES
FOR GOVERNMENT
John B. Glendon, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Although his family ties to Bangladesh raise a security concern, Applicant has successfully mitigated the concern because the totality of the facts and circumstances show his family ties do not pose an unacceptable risk of foreign influence or foreign preference. Clearance is granted.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On September 11, 2006, DOHA issued a Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of the Directive. Applicant answered the SOR in writing on September 28, 2006, and elected to have a hearing before an administrative judge.
Department Counsel indicated he was ready to proceed on October 18, 2006 and the case was assigned to me on October 26, 2006. DOHA issued a notice of hearing on November 9, 2006, scheduling the hearing for November 30, 2006. The hearing was conducted as scheduled to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.
The government offered eight documents. Three of those documents were admitted without objection as Government Exhibits (GE) 1 through 3. The remaining documents were administrative notice documents and were admitted without objection as Administration Notice Documents (AND) I through V. The Applicant offered three documents, which were admitted without objection as Applicant Exhibits (AE) A through C. I held the record open after the hearing to afford Applicant the opportunity to submit additional documents. The Applicant submitted two additional documents, which were admitted without objection as AE D and E. DOHA received the transcript on December 12, 2006.
FINDINGS OF FACT
Applicant's Answer to SOR admitted in part and denied in part the SOR allegations, and his Answer to SOR provided additional information. The information provided in his Answer to SOR is incorporated into my findings. After a thorough review of the pleadings, transcript, and exhibits, I make the following essential findings of fact:
Applicant testified during the hearing, and I find his testimony credible.
Applicant is a 40-year-old electronics technician, who has been employed by a defense contractor since January 2005. Tr. 74. He is a first-time applicant for a security clearance.
Applicant, as well as his parents and five siblings consisting of three brothers and two sisters, were born and raised in Bangladesh. Those family members all reside in the U.S. In April 1986, at age 20, Applicant immigrated to the U.S., sponsored by his father, who was already living in the U.S. Applicant became a naturalized U.S. citizen in September 1991. Applicant holds a U.S. passport issued in March 2004. He does not hold any other passports.
Applicant's father became a naturalized U.S. citizen in April 1991 and his mother became a naturalized U.S. citizen in August 2006. GE 1, AE B. At the time the SOR was issued, it was alleged Applicant's mother was a citizen of Bangladesh residing in the U.S. (SOR ¶ 1.a.). Applicant's mother has since become a U.S. citizen.
After arriving in the U.S., Applicant pursued his education earning a bachelor of science degree, majoring in electrical engineering, in May 1997.
Applicant's siblings became naturalized U.S. citizens as follows: 1. 51-year-old brother - naturalized in April 2002; 2. 45-year-old brother - naturalized in October 1993 (dual citizen of Bangladesh); 3. 43-year-old brother - naturalized in September 1991 (dual citizen of Bangladesh); 4. 40-year-old sister - naturalized June 1982; and 5. 37-year-old sister - naturalized in July 1993 (dual citizen of Bangladesh). Applicant's siblings who are dual citizens of Bangladesh formed the basis of SOR ¶ 1.d. Regarding his siblings who held dual citizenship, Applicant explained that he did not know whether they would retain their dual citizenship adding that his family members are "independent"and would choose their own course in this regard. Response to SOR.
At the time Applicant completed his security clearance application (SF-86) in January 2005, he responded to Question 3 he was a dual citizen of the U.S. and Bangladesh. Applicant reaffirmed his Bangladesh citizenship in March 1997 retaining his dual citizenship for the purpose of preserving real property interests in Bangladesh (SOR ¶ 2.a. and 2.b.). This occurred before he began his current employment with a defense contractor in January 2005. At his hearing, he provided documentation from the Consulate General of Bangladesh requesting cancellation of his dual nationality. AE A. Applicant is of the belief that this document cancels his Bangladesh citizenship. Tr. 68.
In May 1998, Applicant traveled to Bangladesh to marry his wife, a citizen of Bangladesh. His wife returned to the U.S. in April 1999 to live with Applicant and became a naturalized U.S. citizen in March 2003. Applicant and his wife have three children ages six, five, and three years of age, all born in the U.S. and are U.S. citizens. Before his May 1998 visit to Bangladesh, the only other time Applicant visited Bangladesh was in July to August 1989. Tr. 83.
Applicant's mother-in-law and father-in-law immigrated to the U.S. in December 2004 and currently live with Applicant and his wife (SOR ¶ 1.b.). They hold "green cards" and have taken all steps to become U.S. citizens, but must first complete the required waiting period before their applications can be processed further. Applicant's father-in-law was a farmer and his mother-in-law was and is a housewife. Applicant stated his in-laws plan to live in his home for approximately one year. Applicant's wife is pregnant with their fourth child and his in-laws will assist her in caring for an anticipated newborn as well as helping with the other three children and household work. Neither in-law worked for or was associated with the Bangladesh government. Tr. 79.
Applicant's has three brothers-in-law and one sister-in-law, who are resident citizens of Bangladesh (SOR ¶ 1.c.). The two oldest brothers-in-law are farmers and the third brother-in-law is a student. His sister-in-law is a housewife, who is married to an attorney-husband. None of Applicant's in-laws are employed by or associated with the Bangladesh government. Applicant has not seen his in-laws living in Bangladesh since he got married in 1998. Since then, Applicant has not communicated with his in-laws in Bangladesh in any manner. His wife speaks to her siblings on average of once a month by telephone and it is through her contact with his in-laws that he remains informed of their well being. Tr. 37-38. Applicant's three brothers-in-law all live in the same house, and his sister-in-law lives with her husband in their own home.
Applicant maintained two bank accounts containing nominal amounts in Bangladesh, which he opened in 1998 when he returned to Bangladesh to get married (SOR ¶ 1.e.). One bank account was closed due to inactivity and the second bank account with an approximate balance of $200.00 will be closed in the near future as a result of inactivity. Tr. 55-57. Applicant has not received bank statements from either bank and stated he has no interest in maintaining future bank accounts in Bangladesh.
The SOR alleged Applicant had an interest in a townhouse in Bangladesh valued at approximately $30,000.00 in which his cousins currently reside (SOR ¶ 1.f.), and undeveloped property (farm land) in Bangladesh valued at approximately $600.00 (SOR 1.g.). At hearing, Applicant corrected the record stating he held a one-quarter interest in the Bangladesh townhouse leaving his interest valued at approximately $5,000.00, and a one-half interest in the undeveloped Bangladesh property leaving his interest valued at approximately $300.00. Tr. 60-62.
As indicated above, the SOR alleged Applicant was retaining his Bangladesh citizenship to preserve his ownership in his townhouse and real estate in Bangladesh (SOR ¶ 2.b.). As also indicated above, Applicant requested the Bangladesh government to cancel his Bangladesh citizenship thus precluding his ability to own property in Bangladesh. Applicant also submitted a document that he prepared purporting to transfer all his Bangladesh real property interests to his older brother. AE C. (2)
Applicant owns his own home in the U.S., owns an automobile, maintains a checking and savings account, has a 401k retirement plan through work, and a work sponsored life insurance policy. Applicant estimates his net worth in the U.S. approximates $600,000.00. Tr. 87-88. Applicant exercises his right to vote in the U.S., and pays state and federal income taxes.
Applicant's supervisor submitted a letter describing his duties, which indicate he is making a valid contribution to the defense industry and added his daily duties require him to have a security clearance. AE E.
The government submitted several documents for administrative notice purposes pertaining to Bangladesh. Those documents cover a number of topics, but salient points include that Bangladesh is one of the world's poorest and most densely populated countries, with a population of 146 million people and a per capita GDP of $456. Bangladesh obtained its independence from Pakistan in 1971, and pursuant to its 1972 constitution, it has a democratic parliamentary form of government. With its relatively new status as an independent country, it suffers from a dysfunctional political system, weak governance and pervasive corruption. The security situation in Bangladesh is volatile. While U.S. relations with Bangladesh are excellent, and Bangladesh has become a valuable U.S. ally in the "Global War on Terrorism," Bangladesh has witnessed the emergence of a dangerous terrorist group, the JMB, which has the goal of imposing a fundamentalist Islamic society on Bangladesh. The JMB has identified the governments of the U.S. and the United Kingdom as alleged enemies of Islam. See AND I through V.
The Adjudicative Guidelines in the Directive are not a set of inflexible rules of procedure. Instead they are to be applied by administrative judges on a case-by-case basis with an eye toward making determinations that are clearly consistent with the interests of national security. In making overall common sense determinations, administrative judges must consider, assess, and analyze the evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines, but in the context of factors set forth in section E 2.2.1. of the Directive. The government has the burden of proving any controverted fact(s) alleged in the SOR, and the facts must have a nexus to an Applicant's lack of security worthiness.
The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance.
As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 528 (1988), "no one has a 'right' to a security clearance." As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to "United States citizens . . . whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Executive Order 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.
Initially, the Government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. All that is required is proof of facts and circumstances which indicate an applicant is at risk for mishandling classified information, or that an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, then the applicant has the ultimate burden of establishing his security suitability with substantial evidence in explanation, mitigation, extenuation, or refutation, sufficient to demonstrate that despite the existence of guideline conduct, it is clearly consistent with the national interest to grant or continue his security clearance.
Security clearances are granted only when "it is clearly consistent with the national interest to do so." See Executive Orders 10865 § 2 and 12968 § 3.1(b). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive ¶ E2.2.2 "The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." See Egan, 484 U.S. at 531. Doubts are to be resolved against the applicant.
CONCLUSIONS
Under Guideline B, 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.
Common sense suggests that the stronger the ties of affection or obligation, the more vulnerable a person is to being manipulated if the relative, cohibitant, or close associate is brought under control or used as a hostage by a foreign intelligence or security service. Concerning family ties, the language of Guideline B does not require a conclusion that an unacceptable security concern exists based solely on an applicant's family ties in a foreign country. (3) An administrative judge must consider the record evidence as a whole in deciding if the facts and circumstances of an applicant's family ties pose an unacceptable security concern under Guideline B. (4)
Under SOR, subparagraph 1, based on the record evidence as a whole, the government established a case under Guideline B. The concern being that Applicant's mother-in-law and father-in-law are citizens of Bangladesh and reside in the U.S., that his three brothers-in-law and sister-in-law are resident citizens of Bangladesh, and two of his brothers and one of his sisters are dual citizens of Bangladesh and the U.S. residing in the U.S.
Evidence Applicant presented at hearing establishes that since the SOR was issued his mother has become a U.S. citizen, that one of his bank accounts in Bangladesh has been closed and the remaining bank account in Bangladesh is about to be closed, that Applicant has taken steps to transfer his real property interest in Bangladesh to his older brother, and that he has filed the necessary documents to renounce his Bangladesh citizenship precluding him from owning real property in Bangladesh. These facts mitigate concerns raised in SOR ¶¶ 1.a., 1.e., 1.f., and 1.g.
Potentially disqualifying conditions raised under Guideline B include: 7(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; 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 sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information; and 7(d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk or foreign inducement, manipulation, pressure, or coercion.
Applicable mitigating conditions applicable under Guideline B are: 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, group, organization, or government and the interests of the U.S.; and 8(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.
Since arriving in the U.S. in 1986, some 20 years ago at age 20, Applicant has focused his life on assimilating into his adopted country. After arriving in the U.S., he earned his college degree, became a U.S. citizen, and embarked on a successful career. During the 20 years he has lived in the U.S., he has only returned to Bangladesh two times, the first time in 1989 and the second time in 1998 to get married. After getting married, his wife joined him in the U.S. and she too became a U.S. citizen. Since their marriage, they have become parents to three U.S. born children and are expecting their fourth child. Applicant exercises his rights of U.S. citizenship to include voting and has accumulated U.S. based net worth estimated at $600,000.00.
Applicant has done everything within his ability to comply with the DoD Directive to mitigate any potentially disqualifying conditions to include requesting cancellation of his Bangladesh citizenship, allowing his two nominal Bangladesh bank accounts to lapse, and executing a document transferring his nominal real property interests in Bangladesh to an older brother. Applicant is of the further belief that canceling his Bangladesh citizenship had the collateral affect of precluding him from owning real property in Bangladesh. Applicant's contact with his in-laws in Bangladesh is vicariously maintained through his wife's monthly telephone contact with them.
Applicant's father-in-law living in the U.S. was a farmer, are his two brothers-in-law in Bangladesh are also farmers. His mother-in-law living in the U.S. was and is a housewife, and so is his sister-in-law living in Bangladesh. His other brother-in-law living in Bangladesh is a student. None of his immediate family members or in-laws are associated with a political, scientific, commercial, or other activity that would benefit from obtaining United States national security information. Applicant through word and action as well as through his demeanor has manifested his loyalty to the U.S. Given these circumstances, there is not a reasonably foreseeable risk (5) that his family ties might be exploited.
Any Bangladesh property interests valued at approximately $5,300.00 that Applicant held before transferring them to his older brother is insignificant when compared to his assets in the United States. His parents, all of his siblings, his wife, three children, and father-in-law and mother-in-law all live in the U.S. In short, Applicant's whole life is based in the United States. These are examples of ties that bind most members of a participatory democracy such as the United States. His substantial ties to the United States reinforce and lend credibility to Applicant's pledge that he would resist and report any potential foreign influence or pressure by either coercive or non-coercive means. I conclude Guideline B in favor of Applicant.
Under Guideline C for foreign preference, a security concern may exist when an individual acts in 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.
Although Applicant reaffirmed his Bangladesh citizenship in 1997 after becoming a U.S. citizen for the purpose of preserving his real property interest, he has since taken definitive action to address this concern by requesting the Bangladesh government to cancel his citizenship. Additionally, he prepared a document transferring this property interest to his older brother. Record evidence clearly supports the notion that Applicant has taken tangible steps to divest himself of any property interests held in Bangladesh.
A potentially disqualifying condition under Guideline C is 10(5) using foreign citizenship to protect financial or business interests in another country. Applicable is mitigating condition 11(b) the individual has expressed a willingness to renounce dual citizenship. As discussed above, Applicant has not only met mitigating condition 11(b), he has exceeded it by requesting his Bangladesh citizenship be cancelled. I conclude Guideline C in favor of Applicant.
In summary, the record evidence demonstrates Applicant has all the indicators of an industrious, mature, responsible, and trustworthy individual. After weighing the record evidence as a whole, it is my commonsense determination that the facts and circumstances show Applicant's ties to Bangladesh do not pose an unacceptable risk or concern of foreign influence or foreign preference. In reaching my decision, I have considered the whole-person concept and the appropriate factors and guidelines in the Directive. And I have weighed the record evidence as a whole, and conclude the favorable evidence outweighs the unfavorable evidence. Under the totality of the facts and circumstances, I conclude Applicant has met his burden.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline B: FOR THE APPLICANT
Subparagraph 1.a.: For the Applicant
Subparagraph 1.b.: For the Applicant
Subparagraph 1.c.: For the Applicant
Subparagraph 1.d.: For the Applicant
Subparagraph 1.e.: For the Applicant
Subparagraph 1.f.: For the Applicant
Subparagraph 1.g.: For the Applicant
Paragraph 2. Guideline C: FOR THE APPLICANT
Subparagraph 2.a.: For the Applicant
Subparagraph 2.b.: For the Applicant
DECISION
In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted.
Robert J. Tuider
Administrative Judge
1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.
2. It is uncertain what efficacy, if any, this document will have if presented to the cognizant Bangladesh government officials.
3. ISCR Case No. 98-0419 (April 30, 1999) at p. 5.
4. Id.
5. Consistent with the whole-person concept, the security-clearance process is about risk management. With a few notable exceptions (for example 10 U.S.C. § 986), it is not a black-and-white process, but it depends upon adjudicators and administrative judges to make a fair and impartial commonsense determination on a case-by-case basis.