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ISCR Case 16-04041.h1 — CASE

ISCR Case 16-04041.h1granted

Case Headnote

ISCR Case No. 16-04041.h1

grantedJul 1, 2016· Hon. Matthew E. Malone· hearing

Summary

This case involved a 36-year-old naturalized U.S. citizen, originally from Taiwan, seeking a security clearance. Concerns were raised under Guideline B (Foreign Influence) due to her grandmother and a friend residing in Taiwan, and under Guideline C (Foreign Preference) because she maintained Taiwanese citizenship with plans to retire there. These issues triggered Disqualifying Condition AG ¶ 7(a).

However, the judge applied Mitigating Conditions AG ¶ 8(a) and AG ¶ 8(b). It was determined that the applicant's contacts in Taiwan had no government or official organizational ties, thus not posing a significant risk of foreign influence. Furthermore, the applicant had resided in the U.S. for over half her life, mitigating concerns about divided allegiance.

Crucially, the applicant had also held a security clearance for nearly ten years without any reported issues. Based on these factors, the judge concluded that her dual citizenship did not indicate a preference for Taiwan over the U.S., and her relationships did not present a security risk. Consequently, the applicant's security clearance was granted.

Why the Applicant Prevailed

The applicant's familial contacts in Taiwan have no ties to the government or any official organization.
The applicant has lived in the U.S. for more than half her life, mitigating concerns of divided allegiance.
The applicant has held a security clearance for nearly ten years without issues.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members

Mitigating

AG ¶ 8(a)appliedNature of Relationships with Foreign Persons
AG ¶ 8(b)appliedMinimal Conflict of Interest

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedFeb 5, 2017
Answer filed—
Hearing held—Applicant requested a decision without a hearing.
Decision dateJan 10, 2018

Cite For

Mitigation of Foreign Influence Concerns Due to Lack of Government Ties
Non-disqualifying Nature of Dual Citizenship Without Evidence of Preference
Whole-person Assessment in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated security concerns related to foreign influence due to her relationships with citizens of Taiwan. The applicant's ties to her grandmother and a friend in Taiwan were deemed not to pose a significant risk, leading to a decision in favor of the applicant for the security clearance.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Home or Property · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s grandmother is a citizen of Taiwan and resides there.	For Applicant	Parent in Foreign Country Immediate Family	Taiwan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b	Applicant’s friend is a citizen of Taiwan and resides there.	For Applicant	Friend in Foreign Country Friend	Taiwan HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(a) relationships such that a conflict between foreign and U.S. interests is unlikely (b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's ongoing possession of Taiwanese citizenship and her ties to citizens of Taiwan did not pose a security risk. The applicant's relationships were deemed unlikely to create a conflict of interest with U.S. national interests, leading to a favorable decision under Guideline C.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
2.a	Applicant maintains Taiwanese citizenship because she plans to retire in Taiwan.	For Applicant	Foreign Citizenship Acquisition or Application	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline C). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) [NAME REDACTED] ) ISCR Case No. 16-04041 ) ) ) Applicant for Security Clearance

For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se

03/29/2018 ______________

STATEMENT OF CASE

______________

MALONE, Matthew E., Administrative Judge:

Applicant mitigated the security concerns raised by associations with citizens of Taiwan who reside there. Available information also mitigated the security concerns about Applicant’s ongoing possession of Taiwanese citizenship. Applicant’s request for a security clearance is granted.

Statement of the Case

Applicant first received a security clearance in July 2009. On September 10, 2015, she submitted an Electronic Questionnaire for Investigations Processing (EQIP) to renew her eligibility for a security clearance required for her job with a defense contractor. After reviewing the results of the ensuing background investigation, adjudicators for the Department of Defense (DOD) could not determine that it is clearly consistent with the interests of national security to continue Applicant’s access to classified information.1 On February 5, 2017, DOD issued to Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns addressed at Guideline B (Foreign Influence) and Guideline C (Foreign Preference).2 Applicant timely responded to the SOR and requested a decision without a hearing. On September 5, 2017, Department Counsel issued a File of Relevant Material (FORM)3 in support of the SOR. Applicant received the FORM on September 13, 2017 and had 30 days to file a response to the FORM. Applicant timely responded to the FORM and the record closed on October 12, 2017. I received this case for decision on January 10, 2018.

FINDINGS OF FACT

Under Guideline B, the SOR alleged that Applicant’s grandmother (SOR 1.a) and a friend (SOR 1.b) are citizens of Taiwan and reside in Taiwan. Under Guideline C, it was alleged that Applicant maintains Taiwanese citizenship because she plans to retire in Taiwan. (SOR 2.a) Applicant admitted these allegations, and provided additional information as part of her response. In addition to her admissions, I make the following findings of fact.

Applicant is 36 years old. She was born and raised in Taiwan until immigrating to the United States with her mother in 1998, at age 16. Applicant completed high school in the United States and attended a well-known U.S. college, earning a bachelor’s degree in electrical engineering in June 2006, a month after becoming a naturalized U.S. citizen. Applicant has a valid U.S. passport, first issued in May 2006, and renewed for ten years in October 2015. She travels extensively to Taiwan and other countries as part of her work. Applicant has never married and lives in the United States with her mother, who also is a naturalized U.S. citizen, and who retired in about 2007. (FORM, Items 4 and 6)

Applicant has worked for her current employer since 2006 and received a security clearance in July 2009. In her previous clearance application, and during the ensuing background investigation, she disclosed the same contacts that are at issue here. Applicant’s grandmother is 90 years old and has no ties to any foreign government. Applicant’s friend is a longtime association from school, currently employed in Taiwan as a teacher. As Applicant discussed in a personal subject interview (PSI) in 2008, she has frequent contact with her grandmother and her friend. Neither has expressed any interest in Applicant’s work. (FORM, Items 3 – 5)

Applicant still has Taiwanese citizenship. The last time she exercised that citizenship was when she possessed a Taiwanese passport, which she has relinquished to her facility security officer (FSO). Applicant never used her Taiwanese passport instead of her U.S. passport, even when traveling to Taiwan. (FORM, Items 3, 5 and 6) During Applicant’s 2008 PSI, she stated she did not want to relinquish her Taiwanese citizenship because her mother might wish to return to Taiwan after retiring and Applicant might want to go with her. During Applicant’s 2016 PSI, Applicant stated she wants to maintain the option of retiring to Taiwan and wants to retain her Taiwanese citizenship for that purpose. The record does not show that Applicant has any financial assets or property outside the United States, or that she has taken any tangible actions in preparation for retirement to Taiwan or anywhere else. (FORM, Items 3, 5, and 6)

Based on the information presented about Taiwan, I take administrative notice of the following facts:

Taiwan is an island nation governed through a multi-part democracy. Since its separation from the mainland Chinese government of the Peoples Republic of China (PRC) nearly 70 years ago,4 Taiwan has become an industrialized economic entity and a leading producer of high-technology goods. In 1979, the U.S. formally recognized the PRC as the sole legal government of China. However, the United States has maintained cultural, commercial, and military relations with Taiwan. Maintaining strong relations with Taiwan is a major U.S. goal. The United States does not officially support Taiwanese independence, but it does support Taiwan’s membership in international organizations such as the World Trade Organization (WTO), the Asia-Pacific Economic Cooperation (APEC) forum, and the Asian Development Bank. The United States also is committed to helping Taiwan maintain its defensive capabilities, and has sold the Taiwanese defensive military equipment and weapons, including destroyers, anti-submarine aircraft, and diesel submarines.

Notwithstanding the close ties between our two countries, Taiwan continues to target the United States, among others, as part of its long-standing use of aggressive economic and information espionage activities. As such, even though Taiwan is an open society, its aggressive activities in this regard create a heightened risk that Applicant might be coerced or manipulated through ties to her grandmother and friend.

POLICIES

Each security clearance decision must be a fair, impartial, and commonsense determination based on examination of all available relevant and material information,5 and consideration of the pertinent criteria and adjudication policy in the adjudicative guidelines. Decisions must also reflect consideration of the factors listed in ¶ 2(d) of the new guidelines. Commonly referred to as the “whole-person” concept, those factors are:

(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

4 The PRC does not recognize Taiwan, and insists there is only “one China.” In 1949, Taiwan was populated 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.

The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an applicant. However, specific applicable guidelines should be followed whenever a case can be measured against them as they represent policy guidance governing the grant or denial of access to classified information. A security clearance decision is intended only to resolve whether it is clearly consistent with the national interest6 for an applicant to either receive or continue to have access to classified information. Department Counsel must produce sufficient reliable information on which DOHA based its preliminary decision to deny or revoke a security clearance for an applicant. Additionally, Department Counsel must prove controverted facts alleged in the SOR.7 If the Department Counsel meets its burden, it then falls to the applicant to refute, extenuate, or mitigate the case for disqualification.8

Because no one is entitled to a security clearance, an applicant bears a heavy burden of persuasion to establish that it is clearly consistent with the national interest for the applicant to have access to protected information.9 A person who has access to such information enters into a fiduciary relationship with the Government based on trust and confidence. Thus, there is a compelling need to ensure each applicant possesses the requisite judgment, reliability, and trustworthiness of one who will protect the nation’s interests as his or her own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access to classified information in favor of the Government.10

ANALYSIS

Foreign Influence

Applicant’s ties of affection to her grandmother and childhood friend reasonably raised a security concern because of Taiwan’s aggressive pursuit of economic and technology information from the United States. That concern is broadly articulated at AG ¶ 6, as follows:

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.

More specifically, the record requires application of the following disqualifying condition at AG ¶ 7(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.

By contrast, the record also requires application of the following AG ¶ 8 mitigating conditions:

(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; and

(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.

Applicant’s contacts in Taiwan have no ties to the government or any other official organization there. Her affection for them is greatly outweighed by the fact she has lived in the U.S. more than half her life. Further, these same facts were examined during her previous background investigation and were not deemed disqualifying. Applicant has held a security clearance as a U.S. citizen for almost ten years without any apparent problems. On balance, available information supports a conclusion that the security concerns under this guideline are mitigated.

Foreign Preference

The security concern under this guideline is stated at 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 Government bases its intent to revoke Applicant’s security clearance on her stated reluctance to relinquish her foreign citizenship because she might want to retire to Taiwan. There is no indication she might retire soon (she is still in her 30s) or that she has begun making financial preparations in Taiwan so she could execute such a plan. At best, these circumstances comprise a future interest in Taiwan that may or may not come to fruition. Additionally, there is no current bar to retaining foreign citizenship absent some motive to do so that might pose a security risk. That is not present here. I conclude the record evidence as a whole does not establish a prima facie case for disqualification under Guideline C in its current form, because simply maintaining dual citizenship is not a disqualifying circumstance.

In addition to my evaluation of the facts and application of the appropriate adjudicative factors under Guidelines B and C, I have reviewed the record before me in the context of the whole-person factors listed in AG ¶ 2(d). A fair and commonsense assessment of all available information bearing on Applicant’s continued suitability for access to classified information supports a conclusion in favor of the Applicant.

FORMAL FINDINGS

Formal findings 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.b: For Applicant

Paragraph 2, Guideline C: FOR APPLICANT

Subparagraphs 2.a: For Applicant

CONCLUSION

In light of all available information, it is clearly consistent with the interests of security for Applicant to have access to classified information. Applicant’s request for a security clearance is granted.

MATTHEW E. MALONE Administrative Judge

FOOTNOTES

1 Required by Executive Order 10865, as amended. See also Directive, Section E3.1.1. 2 See Directive, Enclosure 2. At the time they issued the SOR, DOD adjudicators applied the adjudicative guidelines implemented by the Department of Defense on September 1, 2006. On December 10, 2016, the Director of National Intelligence issued a new version of the adjudicative guidelines, to be effective for all adjudications on or after June 8, 2017. In this decision, I have considered and applied the new adjudicative guidelines. My decision in this case would have been the same under either version. 3 See Directive, Enclosure 3, Section E3.1.7. The FORM included seven documents (Items 1 - 7) proffered in support of the Government’s case. Item 7 is an administrative notice request supported by four documents (Enclosures I - IV) by refugees fleeing a civil war in China. That same year, Communists in mainland China established the People’s Republic of China (PRC), and a separate, independent government was established in Taiwan.

5 See Directive, 6.3. 6 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 7 Directive, E3.1.14. 8 Directive, E3.1.15. 9 See Egan, 484 U.S. at 528, 531. 10 See Egan; Adjudicative Guidelines, ¶ 2(b).