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ISCR Case 10-09498.h1 — CASE

ISCR Case 10-09498.h1denied

Case Headnote

ISCR Case No. 10-09498.h1

deniedMar 20, 2012· Hon. Joan Caton Anthony· hearing

Summary

The applicant, a naturalized U.S. citizen of Uyghur ethnicity, has family members residing in the People's Republic of China (PRC), including his wife, parents, and siblings. The security concerns under Guideline B, Foreign Influence, were not mitigated as the applicant maintained close ties with his family in the PRC, which posed a heightened risk of foreign exploitation and coercion. Consequently, the applicant's request for a security clearance was denied.

Under Guideline B (Foreign Influence), the Statement of Reasons alleged the following: Applicant’s parents, siblings, and parents-in-law are citizens and residents of the PRC in the Xinjiang Uyghur Autonomous Region (XUAR) (1.a).

The judge denied the clearance. The government raised disqualifying conditions AG ¶ 7(a), AG ¶ 7(b), AG ¶ 7(d). The decision turned on the following: The applicant admitted to having family members who are citizens and residents of the PRC, creating a potential conflict of interest; The applicant's close connections with his family in the PRC, including his wife and parents, raised concerns about foreign exploitation and coercion; The applicant's history of returning to the PRC and maintaining regular contact with family members demonstrated insufficient mitigation of security risks.

Why the Applicant Was Denied

The applicant admitted to having family members who are citizens and residents of the PRC, creating a potential conflict of interest.
The applicant's close connections with his family in the PRC, including his wife and parents, raised concerns about foreign exploitation and coercion.
The applicant's history of returning to the PRC and maintaining regular contact with family members demonstrated insufficient mitigation of security risks.

Conditions Referenced

Disqualifying

AG ¶ 7(a)appliedContact with Foreign Family Members
AG ¶ 7(b)appliedConnections to Foreign Persons Creating Potential Conflict of Interest
AG ¶ 7(d)appliedSharing Living Quarters with a Foreign National

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 3, 2011
Answer filedOct 21, 2011
Hearing heldJan 9, 2012
Decision dateMar 20, 2012

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Familial Ties on Security Clearance Eligibility
The Importance of Mitigating Conditions in Foreign Influence Cases

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: denied

The judge found against the applicant on all allegations under Guideline B, Foreign Influence, due to the applicant's close ties to family members who are citizens and residents of the People's Republic of China (PRC). The applicant's relationships with his parents, siblings, and in-laws in the PRC raised concerns about potential foreign influence and exploitation, leading to the denial of his 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. Spouse or Partner · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s parents, siblings, and parents-in-law are citizens and residents of the PRC in the Xinjiang Uyghur Autonomous Region (XUAR).	Against Applicant	Parent in Foreign Country Immediate Family	People’s Republic of China HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (b) connections creating a potential conflict of interest (d) counterintelligence information indicating unacceptable risk	—	—

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

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 10-09498 ) Applicant for Security Clearance )

For Government: Philip J. Katauskas, Esquire, Department Counsel

For Applicant: Nury Turkel, Esquire

03/20/2012 ______________

STATEMENT OF CASE

______________

ANTHONY, Joan Caton, Administrative Judge:

Applicant, a naturalized U.S. citizen, was born in the People’s Republic of China (PRC); he has lived in the United States since 1994. His ethnic identity is Uyghur. Applicant’s parents, siblings, and parents-in-law are citizens and residents of the PRC in the Xinjiang Uyghur Autonomous Region (XUAR). Applicant’s wife, an ethnic Uyghur and citizen of the PRC, resides with him in the United States. Applicant failed to rebut or mitigate security concerns under Guideline B, Foreign Influence. Clearance is denied.

Statement of the Case

On June 11, 2009, Applicant signed and certified an Electronic Questionnaire for Investigations Processing (e-QIP). On October 3, 2011, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, Foreign Influence. DOHA acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the Department of Defense for SORs issued after September 1, 2006.

On October 21, 2011, Applicant answered the SOR and requested a hearing before a DOHA administrative judge. The case was assigned to me on November 29, 2011. I convened a hearing on January 9, 2012, to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

The Government called no witnesses and introduced two exhibits (Ex. 1 and Ex. 2), which were entered in the record without objection. The Government offered for administrative notice a summary memorandum containing facts about the PRC found in 15 official U.S. Government documents. The Government also provided for administrative notice the 15 source documents from which the facts in the summary memorandum were derived. I marked the Government’s summary memorandum and accompanying source documents as Hearing Exhibit (HE) I. Applicant did not object to my taking notice of the facts about the PRC in the summary memorandum or in the source documents.

Applicant testified and called no witnesses. At the hearing, he introduced five exhibits, which were identified as Ex. A through Ex. E and entered in the record without objection. I left the record open until close of business January 18, 2012, so that Applicant could, if he wished, provide additional documents. Applicant timely submitted six additional documents, which I marked as Ex. F through Ex. K and entered in the record without objection. DOHA received the hearing transcript (Tr.) on January 17, 2012.

FINDINGS OF FACT

The SOR contains five allegations under AG B, Foreign Influence (SOR ¶¶ 1.a. through 1.e.). In his Answer to the SOR, Applicant admitted all five allegations. Applicant’s admissions are admitted as findings of fact.

After a thorough review of the record, including Applicant’s testimony, all exhibits, all relevant policies, and the applicable adjudicative guideline, I make the following findings of fact:

Applicant is 37 years old and, since April 2009, he has been employed as a linguist by a government contractor. Applicant was born and raised in an area of central Asia historically identified as Uyghurstan or East Turkistan. Applicant and his family members identify themselves ethnically as Uyghur. In 1949, the PRC annexed the Uyghur people’s homeland and renamed it the Xinjiang Uyghur Autonomous Region (XUAR). (Ex. 1; HE 1, Attachment I, Background Note: China; Tr. 52.) As a teenager growing up in the XUAR, Applicant sought information about his Uyghur ethnic heritage. He was later involved with a group that studied and informally taught Uyghur culture to others. Neither the group nor its activities had the approval or support of the PRC government. (Tr. 77-79.)

Between 1987 and 1990, Applicant attended an art college in the XUAR, and he acquired certification equivalent to an associate’s degree. In 1994, he was selected by the PRC government to come to the United States as a folk dancer with a group sponsored by the PRC. The dance group performed dances associated with several Chinese ethnic groups. (Ex. 1; Tr. 55, 70-71.)

One day in 1995, while in the United States with the dance group, Applicant received a telephone call from an associate who reported that a mutual friend had been arrested by the PRC government. The associate told Applicant not to return home because, if he were to do so, he would probably also be arrested. Applicant then applied for and was granted political asylum.1 In 2006, he became a naturalized U.S. citizen and acquired a U.S. passport. For a number of years after becoming a U.S. citizen, Applicant was active in a Uyghur cultural and political group. The group took positions in support of Uyghur culture. Applicant stated that, as a Uyghur, he feels antagonistic to the PRC. (Ex. 1; Ex. 2; Tr. 69-70, 75-77, 81-82.)

Applicant married for the first time in 2002 in the United States. His first wife was of Uyghur ethnicity. One child, a daughter, was born to the marriage in 2003. Applicant and his first wife divorced in 2007. Applicant’s first wife has become a U.S. citizen, and she is aware that he has applied for a security clearance. (Ex. 1; Ex. 2.)

In 2008, Applicant married for a second time. His second wife, also of Uyghur ethnicity, is a citizen of the PRC and resides with Applicant in the United States. Her parents are also citizens and residents of the PRC. (Ex. 1; Tr. 63-64.)

Applicant’s father and mother are in their 60sand live in the XUAR. They are citizens and residents of the PRC. Applicant’s mother, father, and father-in-law are retired. His father and father-in-law receive government pensions. His mother-in-law is a homemaker. (Ex. 1; Ex. 2.)

Applicant has three brothers, all of whom live in the XUAR. The brothers are residents and citizens of the PRC. Two of the brothers work in state-sponsored construction jobs. The third brother works for a government-owned agricultural company. (Ex. 2; Tr. 79-80.)

Applicant returned four times to visit in the PRC after receiving a U.S. passport. In 2006, Applicant took his daughter, who was then about three years old, to visit his father and mother in the XUAR. In 2007, he traveled to the XUAR to visit his parents

1 These facts are almost identical to those reported by the applicant in ISCR 07-13393. and his girlfriend, who is now his wife. In March 2008, Applicant traveled to the XUAR for his brother’s wedding. At the same time, Applicant and his second wife were married in a small civil ceremony. In October 2008, Applicant returned to the XUAR for a ceremony celebrating his marriage in March 2008. The last time he saw his parents, brothers, and parents-in-law was in October 2008 at his wedding celebration. (Ex. 2; Tr. 45-50.)

When asked why he returned to the PRC for his second wedding, Applicant explained that he could not have arranged for the marriage to take place in the United States:

I would like to do that, but it’s basically . . . in our tradition, I really cannot do that because of [my wife’s] father [and] her mother. I’ve got to do the wedding. Then, I can . . . take her . . . back to the States. I really cannot do that. That’s against my tradition and also is my father and mother as well. So I really cannot do that. (Tr. 49.)

In the past, Applicant had frequent contact by telephone with his parents and siblings in the XUAR. He spoke with his parents by telephone about twice a month. Since assuming his position as a contract linguist, however, Applicant has limited his telephone contacts with his parents to once a month. He speaks with his brothers on the telephone about every two months. Applicant believes that the PRC government monitors and records telephone contacts between Uyghurs abroad and their families in the XUAR. He speaks with his family in the XUAR less frequently than he did before assuming his job as a contract linguist because he does not want his family members to be vulnerable to pressure or exploitation from the PRC. (Ex. 2; Tr. 42-45.)

At his hearing, Applicant stated that he has no plans to return to the PRC or the XUAR. He stated that he would not permit his wife to travel to the PRC and the XUAR to visit her parents. He stated that he also understands that his work as a defense contractor does not permit him to participate actively in Uyghur cultural and political activities in the United States. (Tr. 81, 86-87.)

Applicant asserted he loved his work as a contract linguist. He stated: “I love [the United States] more than anything. I want to give back something for my country.” (Tr. 40.)

Applicant provided three certificates of appreciation that he received for his work as a contract linguist. In December 2009, he also received a linguist of the month award. (Ex. A through Ex. D.)

In post-hearing submissions, Applicant provided three letters of recommendation from military officers with whom he worked during his assignment as a contract linguist. One of the letters was provided by the officer in charge of the operation from September 2010 to July 2011. This officer wrote: [Applicant’s] performance as a translator at . . . was nothing less than stellar! His professional attitude was complemented by his constant awareness of his responsibilities to the . . . mission. On numerous occasions I personally worked with [Applicant] during potential volatile situations. . . . Utilizing his positive attitude and professional expertise, [Applicant] was always key in working through . . . issues without incident. . . . [Applicant] is a key player behind the successful operation [of our mission] and his dedication to the job is a benchmark for other translators to follow. (Ex. G.)

A military physician assigned to the mission praised Applicant’s work ethic, his language skills, and his ability to deal with difficult and suspicious individuals. He stated that Applicant consistently outperformed his peers and reported that Applicant “was able to deescalate several precarious situations given his talents and excellent job performance.” (Ex. F.)

Another medical professional with whom Applicant worked found him to be “very skilled and dedicated to his work, and in supporting the United States by providing his language and interpreter skills.” This individual also noted that Applicant showed “extreme dedication” to his work, often staying late or coming in on weekends when his skills and abilities as a translator were needed. (Ex. H.)

Applicant’s program manager praised Applicant’s professional demeanor and noted that he “consistently received superior ratings on the performance objectives regarding his command of the English and Uyghur languages.” The program manager noted that Applicant had left a well-established job to work as a contract employee because he wished to repay his debt to the United States “for welcoming him into the country and offering him all the opportunities to succeed.” (Ex. I)

Applicant provided copies of two performance evaluations he received as a contract employee. He received superior ratings for his job skills and work as a linguist. His managers considered him to be a strong performer and an asset to his work group. (Ex. J; Ex. K.)

In May 2011, Applicant’s managers made the following recommendations to him for improving his performance:

Better understanding of [military base] policies and procedures.

Improve attitude and cooperation with willingness to get along with [c]o- workers and housemate and/or customer.

Control your feelings and do not let your person[al] life reflect on the job to our customer. (Ex. K.) Applicant owns no property in the PRC. He does not have any bank accounts or investments in the PRC. (Tr. 50.)

I take administrative notice of the following facts, which appear in official U.S. government documents, and which were summarized in documents provided to Applicant and to me:

People’s Republic of China (China or PRC)

China has an authoritarian government, dominated by the Chinese Communist Party. “[I]nall important government, economic, and cultural institutions in China, party committees work to see that party and state policy guidance is followed and that non- party members do not create autonomous organizations that could challenge party rule.” (U.S. Department of State, Background Note: China, dated September 6, 2011, at 7.)

In its 2009 Annual Report to Congress, the U.S.-China Economic and Security Review Commission concluded that “China is the most aggressive country conducting espionage against the United States, focusing on obtaining U.S. information and technologies beneficial to China’s military modernization and economic development.” (U.S.-China Economic and Security Review Commission, 2009 Report to Congress dated November 2009, at 165.)

The U.S. Department of State’s 2010 Human Rights Report: China (includes Tibet, Hong Kong, and Macau), dated April 8, 2011, provides the following details specifying China’s poor human rights record:

arbitrary or unlawful killings by security forces; physical abuse and torture of prisoners; arbitrary arrest and detention; denial of fair public trials; searches of premises without warrants; monitoring of communication (including telephone conversations, facsimile transmissions, e-mail, text messaging, and Internet communications), opening of domestic and international mail, and failure to respect freedom of speech and the press; failure to respect academic and artistic freedom; severe restrictions on peaceful assembly and restrictions on freedom of association; restrictions on the freedom of religion; and [denying]citizens . . . the right to change their government peaceably, or change the laws and officials that govern them.

The 2010 Human Rights Report also noted that the PRC “continued its severe cultural and religious repression of ethnic minorities in the Xinjiang U[y]ghur Autonomous egion (XUAR)” and cited the following examples:

Following a riot in Urumqi, XUAR, in July 2009, 197 people died and 1,700 were injured. It was also reported by an independent source that in October 2009, hundreds of Uyghur men and boys disappeared following the riots. In November 2009, eight ethnic Uyghurs and one ethnic Han were executed without due process for crimes committed during the riots. In December 2009, 26 persons were sentenced to death for their involvement in the violence. All but three of those sentenced to death were Uyghurs. Additionally, at least two Uyghur journalists and several Uyghur webmasters were tried, convicted, and sentenced for subversive activity in closed-door trials.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, and it has emphasized that “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 an 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 and modified.

When evaluating an applicant’s suitability for a security clearance, an administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are 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, the administrative judge applies these 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 applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion in seeking to obtain a favorable security 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 about potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that 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).

ANALYSIS

Foreign Influence

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

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.

AG ¶ 7 indicates three conditions that could raise a security concern and may be disqualifying:

(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;

(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; and (d) sharing 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.

AG ¶¶ 7(a), 7(b), and 7(d) apply in this case. Applicant, his spouse, his parents, his three brothers, and his wife’s parents were born in the PRC. His parents, brothers, and his wife’s parents are citizens and residents of the PRC; they are all ethnic Uyghurs; and they all reside in the XUAR. Applicant’s wife is an ethnic Uyghur, a citizen of the PRC, and she resides with Applicant in the United States. Applicant and his spouse have close connections with family members living in the PRC. Applicant has particularly close connections with his parents.

Applicant’s father and father-in-law are retired and received pensions from the the PRC government. Applicant’s three brothers work in state-sponsored enterprises.

In 1995, Applicant sought political asylum in the United States after he was warned that if he returned to the PRC, he would be subject to arrest. After becoming a U.S. citizen in 2006 and acquiring a U.S. passport, Applicant returned four times to the PRC and the XUAR to see his family and to arrange and celebrate his second marriage.

Even though he suspects that his communications with his parents are likely monitored and recorded by PRC officials, Applicant telephones them once a month. He speaks with his brothers about once every two months. Applicant’s contacts and communications with his family demonstrate his ties of affection with his family members. His relationship with his parents and his brothers and his wife’s relationship with her parents are sufficient to create “a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.” These relationships with residents of the PRC who are also members of a persecuted ethnic group create a potential conflict of interest between Applicant’s “obligation to protect sensitive information or technology and [his] desire to help” family members who are in the PRC. For example, if the Chinese government wanted to expose Applicant to coercion, it could exert pressure on his parents or his brothers. Applicant is also subject to potential coercion through his spouse and her relationship with her parents.2

The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion or inducement. The risk of coercion,

2 Applicant’s continuing close contacts with his family members and their reliance upon PRC government persuasion, or duress is significantly greater if the foreign country has an authoritarian government and a weak and oppressive human rights record. Moreover, the risk increases when a family member is associated with or dependent upon the government, or if the country is known to conduct intelligence collection operations against the United States. The relationship of the PRC with the United States places a significant, but not insurmountable, burden of persuasion on Applicant to demonstrate that his relationships with his family members living in the PRC, and his spouse’s relationships with her family members living in the PRC, do not pose a security risk. Applicant should not be placed in a position where he might be forced to choose between loyalty to the United States and a desire to assist his parents living in the PRC or to assist his spouse, who might be coerced through a family member living in the PRC.

While there is no evidence that intelligence operatives from the PRC seek or have sought classified or economic information from or through Applicant, his spouse, or their family members living in the PRC, it is not possible to rule out such a possibility in the future. Applicant’s continuing relationships with family members create a potential conflict of interest because these relationships are sufficiently close to raise a security concern about his desire to assist his spouse or their family members living in the PRC, in the event they should be pressured or coerced by agents of the Chinese government or intelligence services for sensitive or classified information. The record contains substantial evidence of Applicant’s contacts with his parents and his brothers, as well as his spouse’s relationship with her parents living in the PRC, thereby raising the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a), 7(b), and 7(d) apply.

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 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 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 cognizant security authority; (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.

AG ¶¶ 8(a) and 8(c) have limited applicability. Applicant traveled to the PRC in 2006, 2007, and twice in 2008. Applicant has regular contact with his parents and brothers, all of whom reside in the PRC. His spouse, a resident of the PRC, resides with Applicant and she, too has parents in the PRC. Because of his connections to the PRC, Applicant is not able to fully meet his burden of showing there is “little likelihood that [his and his spouse’s relationships with relatives who are PRC citizens] could create a risk for foreign influence or exploitation.”

AG ¶ 8(b) partially applies. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.” Applicant has served as a contract linguist with the U.S. military, and he feels a strong appreciation for his U.S. citizenship.

Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with his family members in the PRC. He communicates with his parents and his brothers, even though he knows his telephone calls to them are probably monitored by PRC officials. There is no evidence, however, that terrorists, criminals, the Chinese government, or those conducting espionage have approached or threatened Applicant or his family in the PRC to coerce Applicant or his family for classified or sensitive information. However, because Applicant is a member of a persecuted ethnic minority in the PRC, there is an increased possibility that Applicant or Applicant’s family would be specifically selected as targets for improper coercion or exploitation. While the Government does not have any burden to prove the presence of such evidence, if such record evidence were present, Applicant would have a heavy evidentiary burden to overcome to mitigate foreign influence security concerns. It is important to be mindful of the United States’ recent relationship with the PRC, and especially the PRC’s systematic human rights violations. The PRC’s past conduct makes it more likely that the PRC would coerce Applicant through his family living in the PRC and XUAR, if the PRC determined it was advantageous to do so.

AG ¶¶ 8(d) and 8(e) do not apply. The U.S. Government has not encouraged Applicant’s involvement with family members living in the PRC. Applicant is not required to report his contacts with family members living in the PRC.

AG ¶ 8(f) has minimal applicability. Applicant has no property or financial interests in the PRC. The record does not include the value of Applicant’s assets or property interest in the United States. However, this mitigating condition can only fully mitigate security concerns raised under AG ¶ 7(e), and AG ¶ 7(e) is not raised in this case.

In sum, the primary security concern is Applicant’s close relationship with family members in the PRC. These individuals live in the PRC and are readily available for coercion. The Chinese government’s history of espionage (especially industrial espionage) against the United States and its failure to follow the rule of law further increase the risk of coercion.

Nothing in Applicant’s answers to the Guideline B allegations in the SOR suggested he was not a loyal U.S. citizen. Section 7 of Executive Order 10865 specifically provides that industrial security clearance 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.”

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 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 the whole-person concept and all the facts and circumstances surrounding this case. As a Uyghur linguist, Applicant has rendered an important service to his adopted country. He is a talented, honorable, and hard-working U.S. citizen. He is considered to be a valued employee. He sought to use his experience, skills, and knowledge to serve his adopted country, and he sought a security clearance as a government contractor.

Applicant is attentive and devoted to his mother, father, and brothers who are citizens and residents of the PRC. He is an admirable family member. However, he failed to mitigate the security concerns raised by his contacts and relationships with his wife, parents, brothers, and parents-in-law, who are citizens the PRC, a country that poses “an extraordinary threat to the national security, foreign policy, and economy of the United States.”

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline B, Foreign Influence.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the amended SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B: AGAINST APPLICANT

Subparagraphs 1.a through 1.e.: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_______________________________ Joan Caton Anthony Administrative Judge

FOOTNOTES

benefits distinguish this case from the facts recited in ISCR 07-13393, which also considered the security eligibility of a Uyghur linguist. In ISCR 07-13393, the applicant had not returned to the PRC after receiving asylum and U.S. citizenship. The facts in ISCR 07-13393 suggest that none of the applicant’s foreign relatives was employed by PRC government enterprises or received pension benefits from that government. Additionally, the applicant in ISCR 07-13393 reported that, while he generally spoke on the telephone with his parents every three or four months, he had not spoken with them for six months. He also reported that he had not spoken with two of his brothers and his sister for three years, and he had not spoken with three of his brothers for 14 years. See ISCR 07-13393 (September 9, 2008).