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ISCR Case 06-22258.h1 — CASE

ISCR Case 06-22258.h1granted

Case Headnote

ISCR Case No. 06-22258.h1

grantedSep 28, 2007· Hon. John Grattan Metz, Jr.· hearing

Summary

A 51-year-old assistant facility security officer for a defense contractor sought reinstatement of her security clearance, which had been challenged under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). Concerns arose because the applicant, a naturalized U.S. citizen since October 1987, obtained a Taiwanese passport in February 1996.

However, the government's evidence did not establish that the applicant was at a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion due to her limited family connections in Taiwan. The applicant's Taiwanese passport was never used for travel or any other purpose and expired in 2002.

Ultimately, the judge determined that the government failed to demonstrate a heightened risk of foreign exploitation. The applicant successfully established a clear preference for the U.S., having resided there longer than in Taiwan. Consequently, her security clearance was GRANTED.

Why the Applicant Prevailed

The government failed to establish a heightened risk of foreign exploitation due to the applicant's limited family connections to Taiwan.
The applicant demonstrated a clear preference for the U.S. over Taiwan, having lived in the U.S. longer than in Taiwan.
The applicant's foreign passport was never used for travel or any other purpose, and it expired in 2002.

Conditions Referenced

Disqualifying

C1raisedForeign Preference
B1raisedForeign Influence

Mitigating

C1appliedForeign Preference
B1rejectedForeign InfluenceThe government failed to demonstrate a heightened risk of foreign exploitation or coercion.

Key Rule Quoted

“The government has a compelling interest in ensuring those entrusted with this nation's secrets will make decisions free of concerns for the foreign country of which they may also be a citizen.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedApr 16, 2007
Answer filedMay 8, 2007
Hearing heldAug 30, 2007
Decision dateSep 28, 2007

Cite For

Mitigation of Foreign Preference Concerns Under Guideline C
Evaluation of Foreign Influence Based on Limited Family Connections
Consideration of the Applicant's Clear Preference for the U.S.

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 government failed to establish a case for disqualification under Guideline B due to the applicant's limited family connections to Taiwan. The applicant demonstrated a clear preference for the U.S., and the judge ruled in favor of the applicant on all allegations under Guideline B, granting the security clearance.

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 · U.S. Financial Assets Predominant · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a–2.c	3 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—

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 foreign preference concerns were mitigated. Although the applicant had obtained a Taiwanese passport after becoming a U.S. citizen, she demonstrated a clear preference for the U.S. and had no intent to renew her foreign passport. The government failed to establish a heightened risk of foreign exploitation due to her limited family connections in Taiwan. Therefore, the judge ruled in favor of the applicant under Guideline C.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant obtained a Taiwanese passport in February 1996, despite becoming a naturalized U.S. citizen in October 1987.	For Applicant	Foreign Passport Possession or Use	Admitted	—	—	—
1.b	The government’s evidence failed to establish that Applicant was at heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because of her limited family connections to Taiwan.	For Applicant	Unspecified Foreign Preference	Denied	—	—	—

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

SYNOPSIS

KEYWORD: Foreign Preference; Foreign Influence

DIGEST: The government’s evidence failed to establish that Applicant was at heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because of her limited family connections to Taiwan. She also established a clear preference for the U.S. Clearance granted.

CASENO: 06-22258.h1

DATE: 09/28/2007

DATE: September 28, 2007

) ) In Re: ) ) ISCR Case No. 06-22258 ----------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE JOHN GRATTAN METZ, JR

APPEARANCES

SYNOPSIS The government’s evidence failed to establish that Applicant was at heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because of her limited family connections to Taiwan. She also established a clear preference for the U.S. Clearance granted.

STATEMENT OF CASE

Applicant challenges the 16 April 2007 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of her clearance because of unresolved foreign preference and foreign influence concerns. On 8 May 2007, she answered the SOR and requested a hearing. DOHA assigned the case to me 12 July 2007 and I convened a hearing 30 August 2007. DOHA received the transcript (Tr.) 12 September 2007.

PROCEDURAL ISSUES

At hearing, Department Counsel conceded that the record evidence produced by Applicant in her Answer and at her hearing demonstrated that, while the government had a good faith basis for allegation 1.b., the allegation was ultimately refuted by unequivocal evidence. Accordingly, I find allegation 1.b. for Applicant.

FINDINGS OF FACT

Applicant admitted the allegations of the SOR, except for SOR, 1.b. Accordingly, I incorporate her admissions as findings of fact. She is a 51-year-old assistant facility security officer for a defense contractor, and seeks reinstatement of the interim clearance she held without incident from approximately 2004 until January 2007.

Applicant was born in the Republic of China (Taiwan) in March 1956. She grew up there and was educated there. She married in August 1979, and she and her husband immigrated to the U.S. in 1980. They had a daughter in September 1985, and a son in November 1987, both native- born U.S. citizens. Applicant became a naturalized U.S. citizen in October 1987. Her husband had also become a naturalized U.S. citizen, but he died in March 1993. All of Applicant’s financial interests are in the U.S. She has no intent to return to Taiwan to live.

Applicant obtained her first U.S. passport in February 1988. She renewed it in May 1998. In 1996, Applicant learned from a friend that Taiwan was changing the format for its passports. Without thinking about the fact that, as a U.S. citizen, she no longer needed a Taiwanese passport,2 she re-applied for a Taiwanese passport in February 1996. She never used this passport to travel or for any other purpose. All her foreign travel—including her return trips to Taiwan—have been on her U.S. passports. She use her U.S. passport, with appropriate Taiwanese visas, to travel there in 2000 and 2007. Her Taiwanese passport expired in February 2002. She has no intent to renew it.

Applicant’s parents are citizens and residents of Taiwan. Now 80 and 71 years old, they are retired from jobs that were not connected to the government of Taiwan. They are financially independent, and live on their own. Applicant provides no financial support. She contacts them occasionally to see how they are doing and check on their health. However, in Chinese culture, the ultimate responsibility for caring for her parents resides with her brother.

Applicant is the oldest of four children. Her next oldest sister resides in the U.S. and is in the process of obtaining her U.S. citizenship. She has a brother and sister who are citizens and residents of Taiwan. Her brother works for a retail chain store, and her sister is a homemaker who helps her husband in their gift shop. These employments are not connected to the government of Taiwan. Applicant’s siblings are financially independent, and receive no financial support from her. She has infrequent contact with them.

Taiwan is a multiparty democracy, whose authorities generally respect the human rights of its citizens. While Taiwan is an active collector of industrial information and engages in industrial espionage, the record does not demonstrate that the government of Taiwan targets U.S. intelligence information. Further, the record does not demonstrate that it seeks to exert pressure on its citizens to collect information from family members residing in country or abroad.

One of Applicant’s former supervisors ( the company facility security officer) testified how extremely trustworthy she found her over the more-than-five years she supervised her, a sentiment that was echoed in her character references from her current employer (A.E. C). In addition, she has never had a security violation.

POLICIES AND BURDENS

The Revised Adjudicative Guidelines list factors to be considered in evaluating an applicant’s suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3. of the Directive. The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative 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. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guidelines are Guideline C (Foreign Preference) and Guideline B (Foreign Influence).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant’s security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government’s case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an Applicant’s suitability for access in favor of the government.3

CONCLUSION

The government established a case for disqualification under Guideline C by showing that Applicant obtained a Taiwanese passport in February 1996, despite becoming a naturalized U.S. citizen in October 1987. However, Applicant mitigated the Guideline C security concerns. Although she has been a dual citizen of Taiwan and the United States since her birth, her Taiwanese citizenship has little security significance because it is based solely on her parents’ citizenship. For her conduct to fall within the security concerns of Guideline C, she must have acted in a way to indicate a preference for a foreign nation over the United States. However, inimical intent or detrimental impact on the interests of the United States is not required before the government can seek to deny access under Guideline C. The government has a compelling interest in ensuring those entrusted with this nation's secrets will make decisions free of concerns for the foreign country of which they may also be a citizen.

Applicant’s active exercise of dual citizenship after becoming a naturalized U.S. citizen was done deliberately, but unwittingly. She was not aware of any prohibition on holding a foreign passport. Indeed, there is no such proscription except in the context of clearance adjudications. She never used the passport for any purpose. She has expressed a willingness to surrender the passport, and in any event, the passport expired over five years ago. Further, given her work performance while holding an interim clearance from 2004 to January 2007, she demonstrated that she can be counted on to always act in preference to the United States. I resolve Guideline C for Applicant.

Under Guideline B (Foreign Influence), an applicant’s foreign contacts and interests may raise security concerns if the individual 1) has divided loyalties or foreign financial interests, 2) may be manipulated or induced to help a foreign person, group, organization, or government in a way contrary to U.S. interests, or 3) is vulnerable to pressure or coercion by any foreign interest. Foreign influence adjudications 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, whether the country is known to target U.S. citizens to obtain protected information and/or is associated with a risk of terrorism. Evaluation of an individual’s qualifications for access to protected information requires careful assessment of both the foreign entity’s willingness and ability to target protected information, and to target ex-patriots who are U.S. citizens to obtain that information, and the individual’s susceptibility to influence, whether negative or positive. More specifically, an individual’s contacts with foreign family members (or other foreign entities or persons) raise security concerns only if those contacts create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.8

In this case, the government failed to establish a case for disqualification under Guideline B. Considering first the country involved, Taiwan and the U.S. enjoy excellent foreign relations. Taiwan has not been demonstrated to target protected U.S. information, nor has it been demonstrated to target U.S. citizens to obtain protected information. The risk that Taiwan might seek protected information from Applicant is low, if not non-existent.

Considering Applicant’s circumstances, the government produced no evidence that there was a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because of Applicant’s limited family contacts in Taiwan. Applicant has resided in the U.S. longer than she lived in Taiwan. Her financial and most important family connections are all in the U.S. Her contacts with her parents and siblings are minimal. There is nothing in the circumstances of their being in Taiwan, or in Applicant’s contacts with them, to heighten the risk that she could be impelled or compelled to provide protected information to Taiwan. I resolve Guideline B for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline C: FOR APPLICANT

Subparagraph a: For Applicant Subparagraph b: For Applicant

Paragraph 2. Guideline B: FOR APPLICANT

Subparagraph a: For Applicant Subparagraph b: For Applicant Subparagraph 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. Clearance granted.

John G. Metz, Jr. Administrative Judge

FOOTNOTES

FOR GOVERNMENT Emilio Jaksetic, Esquire, Department Counsel

FOR APPLICANT Pro Se Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated 2 January 1992—as amended and modified, most recently in August 2006 (Directive).

Until her naturalization as a U.S. citizen in October 1987, Applicant was required by U.S. law to maintain a valid Taiwanese passport. There is no evidence in the record to indicate whether that passport, or a required replacement, was still valid in 1996, when the format change precipitated Applicant’s action in renewing her Taiwanese passport. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

Revised Adjudicative Guidelines, ¶ 10.(a) exercise of any right, privilege, or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This included but is not limited to: (1) possession of a current foreign passport; (b) action to acquire or obtain recognition of a foreign citizenship by an American citizen;

Revised Adjudicative Guidelines, ¶ 11.(a) dual citizenship is based solely on parents’ citizenship or birth in a foreign country;

¶ 11.(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated; Revised Adjudicative Guidelines, ¶ 6.

Revised Adjudicative Guidelines, ¶ 7.(a).