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ISCR Case 02-22842.h1 — CASE

ISCR Case 02-22842.h1denied

Case Headnote

ISCR Case No. 02-22842.h1

deniedApr 15, 2004· Hon. Joseph Testan· hearing

Summary

A 50-year-old naturalized U.S. citizen engineer was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed primarily from his brother's employment with the Taiwanese government, as well as his brother's citizenship and residency in Taiwan. Additionally, his brother-in-law is a Taiwanese citizen residing in Canada and is currently seeking Canadian citizenship.

The Statement of Reasons highlighted that an immediate family member is a citizen and resident of a foreign country, and that relatives are connected with a foreign government. These conditions raised disqualifying concerns regarding foreign influence and preference.

Despite the applicant's explanations, the judge determined that no mitigating conditions were applicable given the brother's current employment with a foreign government. The applicant's explanations regarding his brother's potential return to the U.S. were deemed insufficient to alleviate the security risks, leading to the denial of the security clearance.

Why the Applicant Was Denied

Applicant's brother is a citizen and resident of Taiwan, employed by the Taiwanese government.
The applicant's explanations regarding his brother's potential return to the U.S. were insufficient to mitigate security concerns.
No mitigating conditions were applicable due to the brother's current employment with a foreign government.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedAn Immediate Family Member Is a Citizen or Resident of a Foreign Country
E2.A2.1.2.3raisedRelatives Who Are Connected with Any Foreign Government

Mitigating

E2.A2.1.3.1rejectedA Determination That the Immediate Family Member Is Not an Agent of a Foreign Power, or in a Position to Be Exploited by a Foreign PowerThe brother's employment with the Taiwanese government precluded application of this mitigating condition.

Key Rule Quoted

“It is not clearly consistent with the national interest to grant or continue a security clearance for applicant.”

Procedural Posture

SOR issuedJul 31, 2003
Answer filedAug 29, 2003Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateApr 15, 2004

Cite For

Security Concerns Arising From Immediate Family Members Employed by Foreign Governments
Insufficient Mitigating Conditions Due to Familial Ties to Foreign Nationals
Impact of Foreign Government Employment on Security Clearance Eligibility

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 brother is a citizen and resident of Taiwan, employed by the Taiwanese government, which raised security concerns. The judge ruled against the applicant on the basis of foreign influence due to the brother's government employment, while finding that the applicant's other familial ties did not present a security risk. Consequently, the applicant's request for a security clearance was denied.

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's brother is a citizen and resident of Taiwan, and is employed by the Taiwanese government.	Against Applicant	Sibling in Foreign Country Immediate Family GOVT-AFFILIATED	Taiwan	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation (c) failure to report or disclose association with a foreign person/group/government	—	—
1.b	Applicant's brother-in-law is a citizen of Taiwan and currently resides in Canada. He is currently applying for Canadian citizenship.	For Applicant	In Law in Foreign Country Immediate Family	Taiwan	Denied	—	—	—

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: denied

The applicant, a naturalized U.S. citizen, faced security clearance denial due to his brother's citizenship and employment with the Taiwanese government. The judge found that the applicant's familial ties to a foreign government raised security concerns that were not mitigated by the applicant's explanations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	An immediate family member is a citizen or resident of a foreign country.	Against Applicant	Foreign Citizenship Acquisition or Application	Denied	(e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law	—	—
1.b	Relatives who are connected with any foreign government.	For Applicant	Foreign Military or Government Service	Admitted	(f) an act of expatriation from the U.S. such as a declaration of intent to renounce U.S. citizenship, whether through words or actions	—	—

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

APPEARANCES

DATE: April 15, 2004 In Re: -------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-22842 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant is a United States citizen. His brother is currently a resident and citizen of Taiwan, and is employed by the Taiwanese government. Clearance is denied.

STATEMENT OF CASE

On July 31, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) 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 and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant responded to the SOR in writing on August 29, 2003, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case (FORM) on or about November 18, 2003. Applicant did not file a response to the FORM. The case was assigned to me on January 15, 2004.

FINDINGS OF FACT

Applicant is a 50 year old engineer employed of a defense contractor. Applicant became a naturalized United States citizen in 1988. His wife, to whom he has been married since 1982, became a naturalized United States citizen in 1989. His two children were born in the United States. Applicant's brother is a citizen and resident of Taiwan. The brother is employed by the Taiwanese government in the Public Relations field. Applicant's brother-in-law is a citizen of Taiwan and currently resides in Canada. He is currently applying for Canadian citizenship. In his response to the SOR, applicant stated that after his father passed away in March 2001, his brother applied for a visa to return to the United States. (1) He further stated that the visa was granted in June 2001, and that his brother "plans to come back to U.S. permanently once he finishes taking care of family business."

CONCLUSION

In this case, the evidence establishes that applicant's brother is a citizen and resident of Taiwan, and an employee of the Taiwanese government. These facts require application of Disqualifying Condition E2.A2.1.2.1 (an immediate family member is a citizen or resident of a foreign country) and Disqualifying Condition E2.A2.1.2.3 (relatives who are connected with any foreign government). I have carefully considered applicant's explanation for his brother's return and extended stay in Taiwan (approximately 20 years) after moving to the United States and obtaining a green card. These facts, however, are insufficient to remove the security concerns that arise from his brother's current employment with the Taiwanese government. His brother's current position as an employee and agent of the Taiwanese government precludes application of Mitigating Condition E2.A2.1.3.1 (a determination that the immediate family member is not an agent of a foreign power, or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States). No other mitigating conditions are applicable. Applicant has a brother-in-law who is a citizen of Taiwan and a resident of Canada. Because there is absolutely no evidence that applicant has any relationship or contact with this individual, I conclude the Government failed to establish that this individual's status is a security concern.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT Subparagraph 1a: against the applicant Subparagraph 1b: for the applicant

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for applicant. ____________________________ Joseph Testan Administrative Judge 1. According to applicant, the brother lived in the United States and had a green card in the early 1980s, but returned to Taiwan in the mid-1980sto care for their elderly parents.

FOOTNOTES

FOR GOVERNMENT Erin C. Hogan, Department Counsel FOR APPLICANT Pro Se