ISCR Case No. 16-00218.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-00218 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill Esq., Department Counsel For Applicant: Cathryn E. Young, Attorney At Law

May 16, 2017 ______________

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Statement of the Case

On June 25, 2016, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guideline B. The SOR further informed Applicant that based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

Applicant answered the SOR on August 9, 2016, and requested a hearing before an administrative judge. The case was assigned to me on October 11, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on November 3, 2016, scheduling the hearing for December 6, 2016. The hearing was convened as scheduled. The Government offered two exhibits, referred to as Government Exhibits 1 and 2, which were admitted without objection. Applicant offered eight exhibits referred to as Applicant’s Exhibits A through H, which were admitted without objection. He also testified on his own behalf. DOHA received the transcript of the hearing (Tr.) on December 19, 2017.

At the hearing, the Government requested I take administrative notice of certain facts relating to the country of the Republic of China (Taiwan). (Tr. p. 13.) Department Counsel provided a 5 page summary of the facts, supported by 42 pages of Government documents pertaining to the Republic of China (Taiwan). The documents provide elaboration and context for the summary. Applicant’s Counsel had no objection to Department Counsel’s request. (Tr. p. 13.) Accordingly, I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact.

Paragraph 1 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

Applicant admitted each of the allegations set forth in the SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is 55 years old, and married with one child. He has two Master’s degrees, one in Mechanical Engineering and the other in Computer Engineering. He holds the position of Software Engineer 4, and seeks to obtain a security clearance in connection with his employment in the defense industry.

Applicant was born in Taiwan in 1961 and grew up there. He served in the Taiwanese Army from 1985 to 1987, as was mandatory. He came to the United States for graduate school in 1988, and became a naturalized citizen in 2003. (Applicant’s Exhibit D.) Applicant met his wife in the United States, who had also immigrated here to attend college, and they were married in 2001. After meeting the Applicant, she decided that she wanted to stay here. In 2008, she became a naturalized United States citizen, and is now a housewife. (Tr. p. 49.) They have one daughter who was born in the United States. Applicant considers himself solely an American citizen. He has lived in the United States since he immigrated here in 1988, and has made it his permanent home.

Applicant began working for his current employer in November 2015. Soon thereafter, understanding that he would need a security clearance, he voluntarily surrendered his foreign passport to the company authorities. Applicant’s parents, two sisters, his mother and father-in-law, and two brothers- in-laws are citizens and residents of the Republic of China. Applicant’s third sister resides in the United States. Applicant’s father, who is 90 years old, is a retired mechanical engineer who used to work for a sugar company in Taiwan. (Tr. p. 26.) Applicant’s mother is 80 years old, and is a housewife. (Tr. p. 37.) Applicant contacts his parents by skype to talk with them about once every two or three weeks in order to keep them acquainted with his seven year old daughter. Applicant’s last physical contact with his parents was in 2011 when he took his daughter to Taiwan to visit his parents for two weeks. Applicant used his United States passport to travel to Taiwan. (Applicant’s Exhibit C, and Tr. p. 31.) Applicant’s family in Taiwan are supportive of his American citizenship and happy about the opportunities available to him here.

Applicant has three sisters. One is a United States citizen who lives in the United States, and works for her county. She is married and has a daughter. The second sister is a United States citizen and resides in Taiwan. She had problems finding a job here, and was offered a position in Taiwan that she accepted. She resides with Applicant’s parents in Taiwan. The third sister is solely a citizen of the Republic of China. Applicant’s contact with his sisters in Taiwan is about the same as with his parents, once every two to three weeks or so. One of his sisters is employed in Taiwan as a Manager of a financial institution, the other is an elementary school teacher. One of Applicant’s sisters is married to a professor who works at a private university. Applicant rarely has any contact with his brother-in law, as his last contact was maybe over a year or two ago. (Tr. p. 41.) Applicant’s family in Taiwan have no specific knowledge that he is applying for a security clearance. They do not ask him questions about his job and he does not volunteer information. None of the Applicant’s family nor his wife’s family there have any affiliation with the Taiwanese Government.

Applicant’s mother and father in-law are also citizens and residents of Taiwan. Applicant does not speak with them regularly. His wife and daughter talk with them about once a month, making small talk. Applicant’s father-in-law is retired, and his mother-in-law is a housewife. Again, Applicant’s last contact with them was in 2011 when he took his daughter back to Taiwan to meet them for the first time.

Applicant’s parents own no assets in Taiwan. His parents live with his sister in her house. Applicant has no financial assets in Taiwan. He does have significant holdings in the United States, which include an IRA account, a 401K, a checking account, a savings accounts, and stock accounts. His approximate net worth exceeds a million dollars in the United States. (Applicant’s Exhibit F.)

Applicant has no plans to return in the near future to Taiwan. He has adopted the American culture. He has joined a Christian church in the United States. He is regularly involved in community service, working with food banks, and serving the homeless on the holidays. (Tr. p. 60.) He also clearly understands his responsibility to safeguard classified information. He states that if he ever observes suspicious activity, or if he is ever approached by anyone, including any foreign contact seeking information from him, he is to immediately report it to his security department, and will, in fact, do so immediately. Letters of recommendation from personal and professional associates who know the Applicant from church or from work attest to his high level of integrity, honesty, dependability and responsible nature. (Applicant’s Exhibit G.)

It is noted that the current political situation in China elevates the cause for concern in this case. The People’s Republic of China, (PRC) seeks to unify Taiwan and mainland China as “One China.” Taiwan continues to be a significant threat to the U.S. for theft of U.S. trade secrets, proprietary economic information, and defense-related critical technologies. The U.S. Government works diligently to identify, circumvent, and sanction any foreign intelligence threats to U.S. national and economic security.

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline B, Foreign Influence

The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6:

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.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. Two are potentially applicable in this case:

(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; and

(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.

Applicant has foreign family contacts in the Republic of China. He maintains contacts with his foreign family members. This evidence is sufficient to raise this disqualifying condition.

AG ¶ 8 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 8 including: (a) the nature of the relationship 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.;

(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 interests in favor of the U.S. interests;

(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.

AG ¶¶ 8(a), 8(b), and 8(c) apply. Applicant’s parents, two sisters, and in-laws are citizens of and reside in Taiwan. Applicant has only casual and very limited contact with his family in Taiwan. They have no knowledge of what he does or where he works, and they are not affiliated with the Chinese Government in any fashion. They are supportive of his move to the United States and his life here. Applicant has lived in the United States for the past twenty-nine years. He is a naturalized American citizen. He is married to a naturalized American citizen, and they have a native-born American child. Applicant’s assets are all in the United States and exceed one million dollars. The United States is now the Applicant’s permanent home, and he has adopted the American culture and its values. Under the particular facts of this case, the possibility of foreign influence does not exist, nor is there the potential for conduct resulting the compromise of classified information. I find that the Applicant is not vulnerable to foreign influence. Accordingly, If I find for the Applicant under Guideline B (Foreign Influence).

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guideline B in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant has a short but distinguished history with the defense industry and is respected by his manager, professional colleagues, and friends. He performs well at his job. While he was born Taiwan, he is an American by choice. He has been residing in the United States for the past 28 years. His closest familial ties are with his wife, and daughter, both of whom are American citizens. His remaining contacts in Taiwan are casual and infrequent. He can be expected to resolve any conflict of interest in favor of the United States due to his longstanding ties here.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the Foreign Influence security concerns.

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

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: For Applicant

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

________________________ Darlene Lokey Anderson Administrative Judge