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ISCR Case 05-01317.h1 — CASE

ISCR Case 05-01317.h1granted

Case Headnote

ISCR Case No. 05-01317.h1

grantedJan 31, 2007· Hon. Martin H. Mogul· hearing

Summary

This case involved a naturalized U.S. citizen, originally from Hong Kong, whose security clearance was reviewed under Guideline B (Foreign Influence). Concerns were raised because the applicant had immediate family members who were not U.S. citizens and resided in Hong Kong, specifically noting the applicant's father as a Hong Kong citizen and resident. Additionally, the applicant had traveled to Hong Kong four times between 1999 and October 2006. These factors triggered Disqualifying Condition 7(a).

However, the judge applied Mitigating Condition 8(b) and ultimately granted the security clearance. The decision was based on several key findings. Crucially, the applicant's family members were determined to have no affiliations with the Hong Kong government.

Furthermore, the applicant demonstrated strong ties to the United States, having resided in the country for a significant portion of their life. The applicant also showed a clear willingness to resist any potential pressure and to report any attempts to compromise classified information. Based on these mitigating factors, the security clearance was granted.

Why the Applicant Prevailed

Applicant's family members do not have affiliations with the Hong Kong government.
Applicant has lived in the U.S. for a significant portion of his life and has strong ties to the country.
The applicant demonstrated a willingness to resist pressure and report any attempts to compromise classified information.

Conditions Referenced

Disqualifying

DC 7 (a)raisedContact with a Foreign Family MemberThe applicant's father resides in Hong Kong, creating potential for foreign influence.

Mitigating

MC 8 (b)appliedDeep and Longstanding Relationships and Loyalties in the U.S.The applicant's strong ties to the U.S. mitigate the risk of foreign influence.

Key Rule Quoted

“"the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedSep 28, 2006
Answer filedOct 5, 2006
Hearing heldJan 3, 2007
Decision dateJan 31, 2007

Cite For

Mitigation of Foreign Influence Under Guideline B
Consideration of Family Ties in Security Clearance Decisions
Impact of U.S. Citizenship on Foreign Influence Concerns

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's ties to family members in Hong Kong did not pose an unacceptable security risk. The applicant's deep and longstanding relationships in the U.S. and the lack of any government affiliation of his family members in Hong Kong were significant factors in the decision. Ultimately, the judge ruled in favor of the applicant, granting the security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · 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 has immediate family members or people to whom he may be bound by affection or obligation, who are not citizens of the United States, or may be subject to duress.	For Applicant	Parent in Foreign Country Immediate Family	Hong Kong	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b	Applicant's father is a citizen and resident of Hong Kong.	For Applicant	Parent in Foreign Country Immediate Family	Hong Kong	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.c	Applicant has traveled to Hong Kong on four occasions from 1999 to his last visit in October 2006.	For Applicant	Unspecified Foreign Relationship Other	Hong Kong	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	(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.

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

SYNOPSIS

KEYWORD: Foreign Influence

DIGEST: Applicant, born in Hong Kong, came to the United States in 1986, at age 18, and became a United States citizen in 2003. His wife also became a U.S. citizen. Applicant’s mother is a permanent resident of the U.S., living most of the time here, and his father now lives in Hong Kong, but plans to move permanently to the United States. His sister is a U. S. resident. None of his family members belong to, or are active with any government agency of Hong Kong. They are not in a position to be exploited by Hong Kong in a way that could force Applicant to choose between loyalty to these family members and his loyalty to the United States. Mitigation has been shown. Clearance is granted.

CASENO: 05-01317.h1

DATE: 1/31/2007

DATE: January 31, 2007

) ) In Re: ) ) ISCR Case No. 05-01317 ---------------------- ) SSN: -------------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE MARTIN H. MOGUL

APPEARANCES

Candace Le’i, Esq., Department Counsel

FOR APPLICANT Pro Se SYNOPSIS

Applicant, born in Hong Kong, came to the United States in 1986, at age 18, and became a United States citizen in 2003. His wife also became a U.S. citizen. Applicant’s mother is a permanent resident of the U.S., living most of the time here, and his father now lives in Hong Kong, but plans to move permanently to the United States. His sister is a U. S. resident. None of his family members belong to, or are active with any government agency of Hong Kong. They are not in a position to be exploited by Hong Kong in a way that could force Applicant to choose between loyalty to these family members and his loyalty to the United States. Mitigation has been shown. Clearance is granted.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended by Executive Orders 10909, 11328 and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4), issued a Statement of Reasons (SOR), dated September 28, 2006, to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted or denied.

Applicant filed a notarized Response to the allegations set forth in the SOR, dated October 5, 2006, and he requested a hearing before a DOHA Administrative Judge. On November 9, 2006, the case was assigned to me to conduct a hearing, and pursuant to formal notice, dated December 12, 2006, a hearing was conducted on January 3, 2007.

At the hearing, Department Counsel offered seven documentary exhibits (Government Exhibits 1- 7) and no witnesses were called. Applicant offered four documentary exhibits (Exhibits A-D) and offered his own testimony. The transcript (Tr) was received on January 10, 2007.

FINDINGS OF FACT

The SOR was based on Foreign Influence (Guideline B) concerns because of the foreign residency and/or citizenship of close family members and foreign travel. The SOR contains three allegations, 1.a., through 1.c., under Guideline B. Applicant admitted SOR allegations 1.c., and denied 1.a and 1.b. The admission is incorporated herein as a finding of fact.

After a complete and thorough review of the evidence in the record, including Applicant's Answer to the SOR, the admitted documents, and testimony of Applicant, and upon due consideration of that evidence, I make the additional findings of fact:

Applicant is 38 years old. He is employed by a United States defense contractor that wants him to have a security clearance. Applicant was born in Hong Kong in 1968 and first came to the United States in 1986, at the age of 18, to enter a United States university. He received a Bachelor of Science Degree in Systems Engineering in 1990 and a Masters degree in Computer Science, both from United States universities.

Applicant became a naturalized U. S. citizen in 2003. He is married to a Hong Kong born, naturalized U. S. citizen, and they have no children. Her parents live in the United States.

(Guideline B - Foreign Influence)

The Government alleges that Applicant is ineligible for clearance because he has immediate family members or people to whom he may be bound by affection or obligation, who are not citizens of the United States, or may be subject to duress.

Applicant’s parents are Hong Kong citizens. They both have resident alien status from the U. S. His mother resides most of the time in the United States, living for approximately a month in Hong Kong to receive medical care. His mother is retired. His father still resides most of the year in Hong Kong, where he works part time as a security guard under a contract that expires at the end of 2007. He plans to move to the U. S. permanently, when his contract term is completed. Neither of his parents ever worked for, or had any affiliation with, the Hong Kong Government.

Applicant has a sister, who was born in Hong Kong, but now lives in the United States.

Since Applicant came to the United States, he has traveled to Hong Kong on four occasions from 1999 to his last visit in October 2006. The primary reason for these visits was to see his family during vacations, and the most recent visit was as part of his honeymoon.

Applicant does not have any financial interest in Hong Kong, nor is he aware of the potential of receiving any inheritance there. He has owns his home in the United States and has additional financial holdings in this country. Applicant also testified that he has voted in the last three U.S. elections since he has become a citizen, and he plans to remain in the United States for the rest of his life.

Finally, Applicant testified that if pressure was exerted upon Applicant to compromise classified information, he would resist it, and he would report the incident to the proper authorities (Tr at 62-64).

Since Applicant’s father resides in Hong Kong at the present time, this country was also considered. Hong Kong is one of the world’s most open and dynamic economies. On July 1, 1997, the People’s Republic of China (PRC) resumed the exercise of sovereignty over Hong Kong, ending more than 150 years of British Colonial rule. Hong Kong is a Special Administrative Region of the PRC, with a high degree of autonomy in all matters except foreign and defense affairs. Hong Kong will retain its political, economic, and judicial systems and unique way of life for 50 years after reversion and will continue to participate in international agreements and organizations under the name, “Hong Kong, China” (Exhibit G).

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines that must be carefully considered in evaluating an individual's security eligibility and making the overall common sense determination required. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. 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 the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc.

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.

Each adjudicative decision must also include an assessment of: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, and the extent of knowledgeable participation; (3) how recent and frequent the behavior was; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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 (See Directive, Section E2.2.1. of Enclosure 2).

BURDEN OF PROOF

Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. Assessment of an applicant's fitness for access to classified information requires evaluation of the whole person, and consideration of such factors as the recency and frequency of the disqualifying conduct, the likelihood of recurrence, and evidence of rehabilitation.

A person who seeks access to classified information enters into a fiduciary relationship with the U.S. Government that is predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability, or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSION

Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of Applicant, I conclude the following with respect to Guideline B:

Based on the evidence of record, the Government has established an initial reason to deny Applicant a security clearance because of Guideline B (Foreign Influence). Applicant’s parents are citizens of Hong Kong, and his father is still a resident there. The Hong Kong citizenship and residency of Applicant's father creates the potential for foreign influence that could result in the compromise of classified information because it makes Applicant potentially vulnerable to coercion, exploitation, or pressure. The possession of such ties raises a security concern sufficient to require Applicant to present evidence in rebuttal, extenuation, or mitigation sufficient to meet his burden of persuasion that it is clearly consistent with the national interest to grant or continue a security clearance for him. This Applicant has done.

The evidence of existence of an immediate family member, who is a citizen and resident of Hong Kong comes within Disqualifying Condition (DC) 7 (a), contact with a foreign family member, if that contact creates a heightened risk of foreign exploitation, pressure or coercion.

I have reviewed the overall record and the totality of the evidence, and considered: the lack of Hong Kong government involvement of Applicant’s parents, currently and in the past; the fact that his wife is now a United States citizen; his mother and sister now live in the United States and his father plans to reside here after 2007; his history since coming to the United States and living here half of his life, attending two universities and receiving two degrees; and his strong feelings concerning this country. Based on this, I have determined that his father in Hong Kong does not constitute an unacceptable security risk and Mitigating Condition (MC) 8 (b), there is no conflict because 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, applies to this case.

After considering all of the evidence of record on Guideline B , I conclude that the mitigating evidence substantially outweighs the evidence supporting the SOR and even in the unlikely event pressure was exerted upon Applicant to compromise classified information, he would resist it, and he would, as he has testified, report the incident to the proper authorities.

FORMAL FINDINGS

Paragraph 1. Guideline B: FOR APPLICANT

Subparagraph 1.a.: For Applicant Subparagraph 1.b.: For Applicant Subparagraph 1.c.: For Applicant

DECISION

In light of all 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.

Martin H. Mogul Administrative Judge