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ISCR Case 02-27614.h1 — CASE

ISCR Case 02-27614.h1granted

Case Headnote

ISCR Case No. 02-27614.h1

grantedSep 13, 2004· Hon. Charles D. Ablard· hearing

Summary

A 49-year-old defense contractor, originally from China, was granted a security clearance despite concerns under Guideline B (Foreign Influence). The Statement of Reasons noted that her parents and five siblings are citizens and residents of China. However, the applicant demonstrated minimal contact with her family, reporting only one telephone contact with her siblings between 1987 and 2002, and approximately four calls per year with a sick sister-in-law since then.

The judge found that the applicant's limited contact and intent to separate from her country of origin mitigated the security concerns. She has not visited China since 2001 and has no intention of returning. Furthermore, the applicant provided extensive documentation demonstrating her awareness of potential security risks and her proactive efforts to mitigate them.

Ultimately, the applicant's minimal family contact in China, her alienation from the Chinese government, and her clear intent to separate from her country of origin led to the granting of her security clearance.

Why the Applicant Prevailed

The applicant demonstrated minimal contact with her family in China, having only occasional communication with a sick sister-in-law and her parents.
She has not visited China since 2001 and has no intention of returning, indicating a separation from her country of origin.
The applicant provided extensive documentation showing her awareness of potential security risks and her efforts to mitigate them.

Conditions Referenced

Disqualifying

E2.A2.1.1raisedForeign Influence
E2.A2.1.2.1raisedForeign Influence

Mitigating

E2.A2.1.3.1appliedForeign Influence
E2.A2.1.3.3appliedForeign Influence

Key Rule Quoted

“"A security risk may exist when an individual's immediate family and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress."”
— E2.A2.1.1

Procedural Posture

SOR issuedFeb 23, 2004
Answer filedMar 1, 2004Applicant elected to proceed without a hearing.
Hearing held—Written record decision.
Decision dateSep 13, 2004

Cite For

Mitigation of Foreign Influence Concerns Due to Minimal Contact with Family Abroad
Demonstration of Intent to Separate From Country of Origin
Consideration of Infrequent Travel to Home Country as a Mitigating Factor

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 applicant, a U.S. citizen originally from China, had minimal contact with her family in China and demonstrated a clear intent to separate from her foreign ties. The judge concluded that the applicant mitigated the foreign influence concerns and granted her security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant's parents and five siblings are citizens of and live in China.	For Applicant	Parent in Foreign Country Immediate Family	China	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.b	Since 1987 she has had only one telephone contact with her siblings until 2002 and since then approximately four times a year with a sister-in-law who is ill with leukemia.	For Applicant	Sibling in Foreign Country Immediate Family	China	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other

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

SYNOPSIS

KEYWORD: Foreign Influence

DIGEST: Applicant is a 49-year-old employee of a defense contractor working in a defense agency. She was born in China and came to the U.S. in 1987 and became a citizen in 1999. Applicant's parents and five siblings are citizens of and live in China. Since 1987 she has had only one telephone contact with her siblings until 2002 and since then approximately four times a year with a sister-in-law who is ill with leukemia. She has only a few contacts each year with her parents. She is alienated from the government of China and has no desire to return. Clearance is granted.

CASENO: 02-27614.h1

DATE: 09/13/2004

DATE: September 13, 2004

In Re:

----------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 02-27614

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

APPEARANCES

SYNOPSIS

Applicant is a 49-year-old employee of a defense contractor working in a defense agency. She was born in China and came to the U.S. in 1987 and became a citizen in 1999. Applicant's parents and five siblings are citizens of and live in China. Since 1987 she has had only one telephone contact with her siblings until 2002 and since then approximately four times a year with a sister-in-law who is ill with leukemia. She has only a few contacts each year with her parents. She is alienated from the government of China and has no desire to return. Clearance is granted.

STATEMENT OF CASE

On February 23, 2004, the Defense Office of Hearings and Appeals (DOHA) pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified 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. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement, dated March 1, 2004, Applicant responded to the allegations set forth in the SOR, and elected to have her case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on May 3, 2004, a complete copy of the file of relevant material (FORM), consisting of nine documents, was provided to Applicant, and she was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. She did so on May 28, 2004. The case was assigned to, and received by me on June 18, 2004.

FINDINGS OF FACT

Applicant admitted the two factual allegations pertaining to foreign influence under Guideline B but denied the security implications the facts raise. Those admissions are incorporated herein as findings of fact. After a complete review of the evidence in the record and upon due consideration of the record the following additional findings of fact are made:

Applicant is a 49-year-old employee of a defense contractor working in a defense agency. She was born in China and came to the U.S. in 1987 with her husband and four-year-old son. After the actions of the Chinese government at Tiananmen Square in 1989 they opted to stay in the U.S. and she became a citizen in 1999.

Applicant's parents and five siblings are citizens of and live in China. Since 1987 she has had only one telephone contact with her siblings until 2002. Since that time she has had telephone contacts approximately four times a year with a sister-in-law who is ill with leukemia. She has provided occasional funds in small amounts to her.

Since 1987 she has had only one letter or postcard contact with her parents each year until 2002 when she occasionally spoke to her parents when they were visiting the ill sister-in-law. One brother sells bus tickets and the other four siblings are retired blue collar workers. Her father worked for the railroad. None are agents of the government.

She has visited China twice in the past nine years, once each in 1995 and 2001. The only trip after becoming a U.S. citizen was with her husband and son to introduce their grown son to her family. She does not intend to return.

POLICIES

"[N]o 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 occupy a position that will give that person access to such information." Id. at 527. An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other 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. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b).

Initially, the Government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating that it is clearly consistent with the national interest to grant or continue the applicant's clearance. "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Executive Order No. 12968 § 3.1(b).

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions above, I conclude the following with respect to all allegations set forth in the SOR.

Based on the evidence of record, including Applicant's admissions, the Government has established reasons to deny her a security clearance because of foreign influence. Having established such reasons, the Applicant has the burden to establish security suitability through evidence which refutes, mitigates, or extenuates the disqualification and demonstrates that it is clearly consistent with the national interest to grant a security clearance. ISCR Case No. 99-0424, 2001 DOHA LEXIS 59 at 33-34 (App. Bd. Feb. 8, 2001)

"A security risk may exist when an individual's immediate family and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information." (E2.A2.1.1) Having immediate family members who are citizens of, and residing in a foreign country, may raise a disqualifying security concern. (E2.A2.1.2.1.) Such security concerns could be mitigated by a determination "that the immediate family members are not agents 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." (E2.A2.1.3.1.) Also, contact and correspondence with foreign citizens is minimal. (E2.A2.1.3.3.)

While parents living in a country with which the U.S. has had difficult relations in the past but is forging new ties, raises some security concerns, it should not be conclusive of raising such a level of disqualifying condition that it could not be mitigated by effective separation over a long period of time from those relatives living abroad. The burden of overcoming the prima facie case presented by the government is high but should not be impossible. Applicants supplied extensive documentation concerning her siblings, her travel, and a reasoned analysis as to her behavior and the possibility of pressure from anyone to compromise national security.

Applicant's demonstration of lack of contact with her parents and siblings shows an awareness of and intent to create a new life in the U.S. that separates her from the contacts and possible pressures from her country of birth. Her one financial contact for a sick relative is insufficient to outweigh her separation from her country of origin. Her travel there has been infrequent and has now terminated. I conclude that she has mitigated the security concerns and that a clearance should be issued.

FORMAL FINDINGS

Formal Findings as required by the Directive (E3.1.25), are as follows:

Paragraph 1. Guideline B: FOR APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

DECISION

After full consideration of all the facts and documents presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

Charles D. Ablard

Administrative Judge

FOOTNOTES

FOR GOVERNMENT Jason Perry, Esq., Department Counsel file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-27614.h1.htm[6/24/2021 11:10:52 AM] FOR APPLICANT Pro Se