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ISCR Case 14-04459.h1 — CASE

ISCR Case 14-04459.h1denied

Case Headnote

ISCR Case No. 14-04459.h1

deniedMar 30, 2016· Hon. Richard A. Cefola· hearing

Summary

The applicant, a citizen of the United States, sought a security clearance under Guideline B concerning foreign influence due to family ties in China. The applicant's parents and three siblings reside in China, raising concerns about potential foreign exploitation. The judge denied the application, citing the applicant's close family connections and the heightened risk of foreign influence.

Under Guideline B (Foreign Influence), the Statement of Reasons alleged the following: Applicant’s mother is a citizen and resident of the People’s Republic of China (China) (1.a). Applicant’s father is a citizen and resident of China (1.b). Applicant’s brother is a citizen and resident of China (1.c). Applicant’s mother-in-law is a citizen of China, but resides in the United States with Applicant’s immediate family (1.d).

The judge denied the clearance. The government raised disqualifying conditions AG ¶ 7(a). The decision turned on the following: The applicant has close family ties to multiple citizens residing in China, which raises security concerns under Guideline B; None of the mitigating conditions were applicable to the applicant's situation, leading to a conclusion of foreign influence.

Why the Applicant Was Denied

The applicant has close family ties to multiple citizens residing in China, which raises security concerns under Guideline B.
None of the mitigating conditions were applicable to the applicant's situation, leading to a conclusion of foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedForeign Contacts and InterestsContacts with foreign family members who are citizens or residents of a foreign country create a heightened risk of foreign exploitation.

Key Rule Quoted

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

Procedural Posture

SOR issuedMar 6, 2015
Answer filedMar 21, 2015
Hearing held—Applicant represented himself.
Decision dateMar 30, 2016

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
The Impact of Family Ties in Foreign Countries on Security Clearance Eligibility
The Application of the Whole-person Concept in Security Clearance Decisions

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 that the applicant's close family ties to citizens residing in China raised significant foreign influence concerns. The applicant's connections to his parents and siblings in China were deemed to create a heightened risk of foreign exploitation, manipulation, or coercion. Consequently, the judge ruled against the applicant on all allegations under Guideline B, denying his eligibility for a security clearance.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant’s mother is a citizen and resident of the People’s Republic of China (China).	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	—	—
1.b	Applicant’s father is a citizen and resident of China.	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	—	—
1.c	Applicant’s brother is a citizen and resident of China.	Against Applicant	Sibling 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	—	—
1.d	Applicant’s mother-in-law is a citizen of China, but resides in the United States with Applicant’s immediate family.	Against Applicant	In Law in Foreign Country Immediate Family	China	Denied with Explanation	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—

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. 14-04459 ) ) Applicant for Security Clearance )

For Government: Mary M. Foreman, Esquire, Department Counsel For Applicant: Pro se

March 30, 2016

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on January 6, 2014. On March 6, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline B for Applicant. The action was taken 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 after September 1, 2006.

Applicant answered the SOR in writing on March 21, 2015, and requested an Administrative Determination by an administrative judge. Department Counsel issued a File of Relevant Material (FORM) on October 26, 2015. Applicant’s undated response to the FORM was received on November 27, 2015. Department Counsel had no objection, and the two document consisting only of additional argument is entered into evidence. The case was assigned to me on December 21, 2015. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in Paragraphs 1.a.~1.c. of the SOR, without explanations. He denied, in part, the factual allegations in Paragraphs 1.d. of the SOR, with explanations.

Guideline B - Foreign Influence

1.a. Applicant’s mother is a citizen and resident of the People’s Republic of China (China). (Item 3 at pages 28–30.) She is a “retired teacher.” (Item 3 at page 29.) He contacts her “Quarterly . . . [by] Telephone.” (Id.)

1.b. Applicant’s father is a citizen and resident of China. (Item 3 at pages 29–30.) He is a “retired HR director . . . [for a] Shipyard.” (Item 3 at page 30.) Like his mother, Applicant contacts his father “Quarterly . . . [by] Telephone.” (Id.)

1.c. Applicant’s brother is a citizen and resident of China. (Item 3 at pages 31–32.) He is a “small furniture store owner.” (Item 3 at page 32.) Applicant contacts and sees his brother “only [at] family re-union[s].” (Id.) Applicant’s oldest sister is a citizen and resident of China. (Item 3 at pages 32–34.) She is a “Mechanic[al] engineer.” (Item 3 at page 34.) Like his brother, Applicant contacts and sees his sister “only [at] family re-union[s].” (Id.) Applicant’s youngest sister is a citizen and resident of China. (Item 3 at pages 34–35.) She is a “Lab scientist.” (Item 3 at page 35.) Like his other siblings, Applicant contacts and sees his sister “only [at] family re-union[s].” (Id.)

1.d. Applicant’s mother-in-law is a citizen of China, but resides in the United States with Applicant’s immediate family. (Item 3 at page 36–37.) She is a “retired factory worker.” (Item 3 at page 37.)

I take administrative notice of the following facts. China is one of the most aggressive collectors of U.S. economic information and technology. It frequently seeks to exploit Chinese Americans with family ties to China.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the 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 useful 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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 as to obtaining 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 as to 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

Guideline B - Foreign Influence

Paragraph 6 of the adjudicative guidelines sets out the security concern relating to Foreign Influence:

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 a foreign interest.

Here, Paragraph 7(a) is applicable: “contacts with a foreign family member . . . 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.” Applicant’s parents and three siblings are citizens of and reside in China. None of the mitigating conditions apply. In light of Applicant’s close and continuing family connections with his Chinese parents and siblings in China, I find Foreign Influence against the Applicant.

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. 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.

The Administrative Judge should also 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.

I have considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For this reason, I conclude Applicant has not mitigated the security concern arising from his Foreign Influence.

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: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: 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.

_________________ Richard A. Cefola Administrative Judge