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ISCR 16-04056.h2: Guideline B security clearance hearing, granted (2018) · CASE

ISCR Case 16-04056.h2granted

Case headnote

ISCR Case No. 16-04056.h2

grantedSep 12, 2018· Hon. Noreen A. Lynch· hearing

Summary

A 50-year-old naturalized U.S. citizen and systems engineer, originally from Taiwan, was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons cited that the applicant's parents and sister are citizens and residents of Taiwan, as are his wife's mother and her siblings. These family ties raised disqualifying conditions under Adjudicative Guidelines Paragraphs 7(a) and 7(b).

However, the judge found that the applicant successfully mitigated these concerns. He demonstrated strong ties to the U.S. through his immediate family and his naturalization as a U.S. citizen. Furthermore, he has no financial interests in Taiwan and has surrendered his Taiwanese passport.

The judge concluded that the applicant's frequent communication with his family in Taiwan does not create a heightened risk of foreign influence, applying mitigating conditions under Adjudicative Guidelines Paragraphs 8(a), 8(b), and 8(c). Ultimately, the security clearance was granted.

Why the applicant prevailed

The applicant demonstrated strong ties to the U.S. through his immediate family and naturalization as a U.S. citizen.
He has no financial interests in Taiwan and has surrendered his Taiwanese passport.
The applicant's frequent communication with family in Taiwan does not create a heightened risk of foreign influence.

Conditions referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons Creating Potential Conflict of Interest

Mitigating

AG ¶ 8(a)appliedThe Nature of the Foreign Contacts
AG ¶ 8(b)appliedThe Applicant's Commitment to the U.S. and Lack of Foreign Influence
AG ¶ 8(c)appliedThe Applicant's Family Ties in the U.S.

Key rule quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural posture

SOR issuedFeb 10, 2017
Answer filedMar 10, 2017
Hearing heldFeb 23, 2018
Decision dateSep 12, 2018Decision on remand.

Cite for

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Family Ties in Security Clearance Determinations
Criteria for Evaluating Foreign Contacts and Interests in Security Clearance Cases.

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 50: “Applicant is a 50-year-old systems engineer employed by a defense contractor since 2009.”
Tenure: ~9 years: “Applicant is a 50-year-old systems engineer employed by a defense contractor since 2009.”
Held a clearance before: No: “He has not previously held a clearance.”

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 foreign influence security concerns related to family connections in Taiwan. The applicant's relationships with family members were deemed not to pose a security risk, leading to the granting of eligibility for access to classified information.

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. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business · Intent to Remain in U.S. · Renounced or Surrendered Foreign Citizenship or Passport

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) ) ISCR Case No. 16-04056 ) Applicant for Security Clearance )

For Government: Daniel Crowley, Esquire, Department Counsel For Applicant: Pro se

09/12/2018 __________

Decision On Remand __________

LYNCH, Noreen A., Administrative Judge:

Applicant mitigated foreign influence security concerns relating to her connections to family who are citizens and residents of Taiwan. Eligibility for access to classified information is granted.

History of the Case

On January 13, 2016, Applicant completed and signed a Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 1) On February 10, 2017, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive); and the adjudicative guidelines (AG), which became effective on September 1, 2006.1 The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for her, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. Specifically, the SOR set forth security concerns arising under the foreign influence guideline.

On March 10, 2017, Applicant responded to the SOR and requested a hearing. On November 9, 2017, the case was assigned to me. On December 19, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for February 23, 2018. (HE 1) Applicant’s hearing was held as scheduled.

During the hearing, Department Counsel offered one exhibit; Applicant offered five exhibits; there were no objections; and all proffered exhibits were admitted into evidence. (Tr. 9-10; GE 1; Applicant Exhibit (AE) A-AE E). On March 5, 2018, DOHA received a transcript of the hearing.

On May 25, 2018, I issued a decision granting Applicant a security clearance. On September 6, 2018, the DOHA Appeal Board remanded the case to me for a new decision. See ISCR Case No. 16-04056 (App. Bd. Sept. 6, 2018). After careful consideration of the Appeal Board’s comments and directions, I have revised my decision, applied the Appeal Board’s directions, and again grant Applicant a security clearance.

PROCEDURAL RULINGS

Department Counsel offered summaries for administrative notice concerning foreign influence security concerns raised by Applicant’s connections to Taiwan with supporting attachments. (HE 4) Administrative or official notice is the appropriate type of notice used for administrative proceedings. See ISCR Case No. 16-02522 at 2-3 (App. Bd. July 12, 2017); ISCR Case No. 05-11292 at 4 n. 1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004) and McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n. 4 (3d Cir. 1986)). Usually administrative notice at ISCR proceedings is accorded to facts that are either well known or from government reports. See Stein, ADMINISTRATIVE LAW, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice). Department Counsel’s requests for administrative notice are granted. Findings of Fact2

Applicant admitted the allegations of the SOR. His parents and his sister are citizens and residents of Taiwan. His wife’s mother and her siblings are citizens and residents of Taiwan. Applicant is a 50-year-old systems engineer employed by a defense contractor since 2009. He has not previously held a clearance.

Applicant was born in Taiwan in February of 1968. He grew up there and was educated in Taiwan until he obtained his undergraduate degree. He served in the Taiwan military from 1992 to 1994. (Tr. 14) In 1995, Applicant came to the United States on a work-study program. (Tr. 14) He attended graduate school and obtained two graduate degrees, one in 1997 and the other in 1999. (GE 1) He married in 2001 in the United States. His wife was born in Taiwan, but is a naturalized U.S. citizen. His two sons are native-born U.S. citizens. (AE A) Applicant and his wife became naturalized U.S. citizens in June 2012. He surrendered his Taiwanese passport to his security officer. (GE 1)

Applicant’s 76-year-old mother and 81-year-old father are citizens and residents of Taiwan. They are both retired. His sister is a tutor and her husband is a tutor as well. (Tr. 21) Applicant’s mother-in-law is a retired teacher. His sister-in-law works for a nonprofit organization. Applicant has many relatives who live in Canada. (GE 1) None of his relatives know about his work or the fact that he is in the process of obtaining a security clearance. He contacts with family living in Taiwan is as follows: weekly with his parents; every other month with his sister; about every month with his mother-in-law and brother-in-law; and every six months with his sister-in-law. (Tr. 19-22)

Applicant traveled to Taiwan once a year in the past and more recently once every other year to visit family. (Tr. 23) He has no financial interests in Taiwan. He and his wife own a home in the United States, which is valued at about $530,000. Applicant’s oldest son is heavily involved in youth sports, such as hockey and baseball. His youngest son is involved in the arts.

Applicant submitted letters of recommendation. They attest to his traits as an excellent family man and a man of service to his community. He is well liked and respected in the neighborhood, and no one has ever seen any suspicious behavior. (AE B and C) The youth director of his church wrote that Applicant is professional, skilled, and extremely competent. He supports the community and volunteers in many areas of the church. He is widely respected by students and senior members of the church. (AE D)

Applicant’s 2017 performance evaluation reveals an employee who has done an excellent job in various areas, and has provided invaluable input and ideas. He fulfills his role well. He learns quickly and is always professional, helpful, punctual, and available on stand-by when needed. (AE E) Applicant acknowledged that his family is in Taiwan and he realizes the security concern. Because his two sons and his wife are here in the United States, he believes they are a bigger influence than his relatives in Taiwan. (Tr. 17) He further noted that he took an oath when he became a U.S. citizen, that he would obey all laws of the United States. (Tr. 17-18) The Naturalization Oath of Allegiance to the United States of America states:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.3

When questioned, he stated that he would not be pressured into divulging any information, and that he would talk to his facility officer. He also stated that his authority is the U.S. Government. And since he is a baptized Christian, the Lord is his authority above that. (Tr. 18)4

Taiwan

The U.S. no longer recognizes Taiwan to be a sovereign nation. It recognizes the People’s Republic of China (PRC) as the sole government of China, although it does not recognize the PRC’s claim over Taiwan. Taiwan is a significant trading partner with the U.S., although it has resumed dialogue with the PRC, resulting in closer economic ties between the two countries. Taiwan is of strategic significance to the U.S.

Taiwan is one of the most active collectors of U.S. economic, proprietary, and sensitive information. Since 2000, Taiwan has been repeatedly involved in criminal espionage and export control violations of U.S. restricted, dual-use technology with military applications. Illegal technology transfers, even to private Taiwanese entities, are a significant concern because foreign government entities, including intelligence organizations and industrial security services, have capitalized on private-sector acquisitions of U.S. technology which in turn flows to foreign governments.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Exec. Or. 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his [or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Foreign Influence

AG ¶ 6 explains the security concern about “foreign contacts and interests” stating:

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.

AG ¶ 7 lists conditions that could raise a security concern and may be disqualifying 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 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 SOR alleges and the record establishes Applicant’s parents, sister, mother- in-law, and siblings-in-law are citizens and residents of Taiwan. Applicant has frequent contacts5 with all of his relatives living in Taiwan, except for his sister-in-law. His frequent contacts are a manifestation of his care and concern for his relatives living in Taiwan.

When an allegation under a disqualifying condition is established, “the Directive presumes there is a nexus or rational connection between proven conduct or circumstances . . . and an applicant’s security [or trustworthiness] eligibility. Direct or objective evidence of nexus is not required.” ISCR Case No. 17-00507 at 2 (App. Bd. June 13, 2018) (citing ISCR Case No. 15-08385 at 4 (App. Bd. May 23, 2018)).

The mere possession of close family ties with relatives living in Taiwan is not, as a matter of law, disqualifying under Guideline B. However, if an applicant or his or her spouse has such a relationship with even one person living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See ISCR Case No. 08-02864 at 4-5 (App. Bd. Dec. 29, 2009) (discussing problematic visits of applicant’s father to Iran).

There is a rebuttable presumption that a person has ties of affection for, or obligation to, his or her immediate family members, and this presumption includes in- laws. ISCR Case No. 07-06030 at 3 (App. Bd. June 19, 2008); ISCR Case No. 05- 00939 at 4 (App. Bd. Oct. 3, 2007) (citing ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002).

The DOHA Appeal Board has indicated for Guideline B cases, “the nature of the foreign government involved and the intelligence-gathering history of that government are among the important considerations that provide context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is another important consideration.” ISCR Case No. 16-02435 at 3 (May 15, 2018) (citing ISCR Case No. 15-00528 at 3 (App. Bd. Mar. 13, 2017)). Another factor is the nature of a nation’s government’s relationship with the United States. These criteria are relevant in assessing the likelihood that an applicant’s family members living in that country are vulnerable to government coercion or inducement.

The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, the government ignores the rule of law including widely accepted civil liberties, a family member is associated with or dependent upon the government, the government is engaged in a counterinsurgency, terrorists cause a substantial amount of death or property damage, or the country is known to conduct intelligence collection operations against the United States. The relationship of Taiwan with the United States, and the situation in Taiwan, places a significant burden of persuasion on Applicant to demonstrate that his relationship with any family member living in Taiwan countries does not pose a security risk. Applicant

5 The Appeal Board has concluded that contact every two months or more frequently constitutes “frequent contact” under AG ¶¶ 7 and 8. ISCR Case No. 14-05986 at 3-4 (App. Bd. Oct. 14, 2016). See once every four or five months not casual and infrequent). should not be placed into a position where he might be forced to choose between loyalty to the United States and a desire to assist a relative living in or visiting Taiwan.6

Guideline B security concerns are 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.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. See ISCR Case No. 02-22461, 2005 DOHA LEXIS 1570 at *11-*12 (App. Bd. Oct. 27, 2005) (citing ISCR Case No. 02-26976 at 5-6 (App. Bd. Oct. 22, 2004)) (discussing Taiwan).

While there is no evidence that intelligence operatives, criminals, or terrorists from or in Taiwan seek or have sought classified or economic information from or through Applicant or his family, nevertheless, it is not prudent to rule out such a possibility in the future. Applicant’s family in Taiwan “could be a means through which Applicant comes to the attention of those who seek U.S. information or technology and who would attempt to exert coercion upon him [or her].” ADP Case No. 14-01655 at 3 (App. Bd. Dec. 9, 2015) (citing ISCR Case No. 14-02950 at 3 (App. Bd. May 14, 2015)).

Applicant’s relationships with relatives who are living in Taiwan or visiting Taiwan creates a potential conflict of interest because intelligence agencies and organizations, private or industrial security services, criminals, and other entities could place pressure on his family in Taiwan in an effort to cause Applicant to compromise classified information. These relationships create “a heightened risk of foreign inducement, manipulation, pressure, or coercion” under AG ¶ 7. Department Counsel produced substantial evidence of Applicant’s relationships with family in Taiwan and has raised the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a), 7(b), and 7(d) apply, and further inquiry is necessary about potential application of any mitigating conditions.

prominent or not. AG ¶ 8 lists six conditions that could mitigate foreign influence security concerns including:

(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;

(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;

(d) the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;

(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

(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.

The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶ 8(b) applies. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant resided in the United States since 1995. He was awarded two graduate degrees in the United States. He and his spouse were naturalized as U.S. citizens in 2012. His two children are U.S. citizens. His house and employment are in the United States.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with relatives who are citizens and residents of Taiwan. Applicant has frequent contact with multiple relatives, who are citizens and residents of Taiwan, including his parents, siblings, and in-laws. He frequently visited Taiwan. Applicant’s family living in Taiwan are potential targets of intelligence agents and organizations, private or industrial security services, and Applicant’s potential access to classified information could theoretically add risk to his relatives living in Taiwan.

In sum, Applicant’s connections to his relatives living in Taiwan are less significant than his connections to the United States. His U.S. employment, oath of allegiance, residence in the United States for over 20 years, financial connections to the United States, U.S. citizenship of his children and spouse, and statements of friends are factors weighing towards mitigation of security concerns. His connections to the United States taken together are sufficient to overcome the foreign influence security concerns under Guideline B.

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(d):

(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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guideline B are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline but some warrant additional comment. Applicant and his spouse were born in Taiwan. Applicant has frequent contact with his family, who are citizens and residents of Taiwan. His frequent contacts with family in Taiwan are a manifestation of his care and concern for his relatives living in Taiwan.7 There is no evidence that his relatives residing in Taiwan are government employees or military personnel, and of course, the government has no burden to prove that they are. His relationships with family living in Taiwan raise important foreign influence security concerns, and they must be balanced against his connections to the United States.

A Guideline B decision concerning Taiwan must take into consideration the Taiwan’s history of espionage against the United States.8 Taiwan is one of the most active collectors of U.S. economic and proprietary information.9 Taiwan has been repeatedly involved in criminal espionage and export control violations of U.S. restricted, dual-use technology with military applications. Illegal technology transfers, even to private Taiwanese entities, are a significant concern because foreign government entities, including intelligence organizations and private or industrial security services, have capitalized on private-sector acquisitions of U.S. technology which in turn flows to foreign governments.

Applicant has resided in the United States since 1995, and he has strong ties to the United States. A DOD contractor has employed him since 2009. In 2012, Applicant and his spouse were naturalized as U.S. citizens. They have two children who were born in the United States. They own a home in the United States. The good character evidence supports approval of his access to classified information. Applicant “has such deep and longstanding relationships and loyalties in the United States, that [he] can be expected to resolve any conflict of interest in favor of the U.S. interest.” See AG ¶ 8(b).

I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude foreign influence security concerns are mitigated. Eligibility for access to classified information is granted.

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 through 1.f: For Applicant

8 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient

CONCLUSION

In light of all of the circumstances, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

____________________________ Noreen A. Lynch Administrative Judge

FOOTNOTES

1 The Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position on or after June 8, 2017. The new AGs supersede the previous AGs, and I have evaluated Applicant’s security clearance eligibility under the new AGs. Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. 2 The facts in this decision do not specifically describe employment, names of witnesses, names of other groups, or locations in order to protect Applicant and her family’s privacy. The cited sources contain more specific information. 3 The language of the current Oath of Allegiance is found in the Code of Federal Regulations Section 337.1 and is closely based upon the statutory elements in Section 337(a) of the Immigration and Nationality Act. U.S. Citizenship and Immigration Services, 8 U.S.C. § 1448, https://www.uscis.gov/us- citizenship/naturalization-test/naturalization-oath-allegiance-united-states-america.

4 In accordance with “well established DoD policy [Applicant and his family’s] religious affiliation play[ed] no part” in this decision. ISCR Case No. 08-06795 at 6 n. 3 (App. Bd. May 25, 2012). also ISCR Case No. 04-09541 at 2-3 (App. Bd. Sep. 26, 2006) (finding contacts with applicant’s siblings 6 The Appeal Board in ISCR Case No. 03-24933, 2005 DOHA LEXIS 346 at *20-*21 n. 18 (App. Bd. 2005), explained how relatives in a foreign country have a security significance:

The issue under Guideline B is not whether an applicant’s immediate family members in a foreign country are of interest to a foreign power based on their prominence or personal situation. Rather, the issue is whether an applicant’s ties and contacts with immediate family members in a foreign country raise security concerns because those ties and contacts create a potential vulnerability that a foreign power could seek to exploit in an effort to get unauthorized access to U.S. classified information that an applicant -- not the applicant’s immediate family members -- has by virtue of a security clearance. A person may be vulnerable to influence or pressure exerted on, or through, the person’s immediate family members -- regardless of whether the person’s family members are 7 See ISCR Case No. 16-04056 at 5 (App. Bd. Sept. 6, 2018).

discussion of geopolitical situation and suggesting expansion of whole-person discussion).

9 See ISCR Case No. 16-04056 at 4 (App. Bd. Sept. 6, 2018).