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ISCR Case 02-28036.h1 — CASE

ISCR Case 02-28036.h1denied

Case Headnote

ISCR Case No. 02-28036.h1

deniedNov 13, 2003· Hon. Darlene Lokey Anderson· hearing

Summary

A 58-year-old naturalized U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence) due to ongoing contact with siblings residing in China. The Statement of Reasons alleged that the applicant has two sisters and a brother who are citizens and residents of China, with whom the applicant maintains telephonic contact approximately four times per year.

The decision noted a lack of evidence regarding whether these siblings are affiliated with the Chinese government or if they are in a position to be exploited by China in a manner that could compel the applicant to choose between loyalty to foreign contacts and the United States.

Ultimately, the judge found insufficient evidence to mitigate concerns about potential foreign influence. The applicant did not demonstrate that these foreign contacts would not pose a security risk, leading to the conclusion that the applicant's ties could compromise national interests. The security clearance was therefore denied.

Why the Applicant Was Denied

The applicant has foreign contacts that could create potential for foreign influence.
There is no evidence regarding the affiliations of the applicant's siblings with the Chinese government.
The applicant did not demonstrate that his foreign contacts would not pose a security risk.

Conditions Referenced

Disqualifying

AG ¶ 1raisedForeign Influence

Mitigating

AG ¶ 3appliedCasual and Infrequent ContactsThe applicant has minimal contact with his siblings in China.

Key Rule Quoted

“An individual who has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States.”

Procedural Posture

SOR issuedJan 31, 2003
Answer filedFeb 25, 2003Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateNov 13, 2003

Cite For

Foreign Influence Concerns Under Guideline B
Insufficient Evidence to Mitigate Foreign Influence Risks
Impact of Foreign Contacts 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 foreign contacts, specifically his siblings residing in China, posed a potential for foreign influence that could compromise classified information. Although one sub-allegation was found in favor of the applicant, the overall conclusion was against the applicant due to insufficient evidence to mitigate the concerns raised by these foreign ties. 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	The Applicant has two sisters and a brother who are citizens of and reside in China.	Against Applicant	Sibling in Foreign Country Immediate Family	China	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.b	There is no evidence in the record as to whether his siblings in China are affiliated in any capacity with the Chinese government.	For Applicant	Unspecified Foreign Relationship Immediate Family	China	Denied	—	—	—
1.c	The Applicant has telephonic contact with his siblings in China approximately four times per year.	Against Applicant	Sibling in Foreign Country Immediate Family	China	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.d	There is no evidence in the record as to whether his siblings in China are in a position to be exploited by China in a way that could force the Applicant to choose between the loyalty to his foreign contacts and the United States.	Against Applicant	Unspecified Foreign Relationship Immediate Family	China	Denied	(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

DATE: November 13, 2003

In Re:

----------------------------

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

Applicant for Security Clearance

ISCR Case No. 02-28036

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

SYNOPSIS

Applicant's foreign contacts consist of two sisters and a brother who are citizens of and reside in China. There is no evidence in the record as to whether his siblings in China are affiliated in any capacity with the Chinese government, or in a position to be exploited by China in a way that could force the Applicant to choose between the loyalty to his foreign contacts and the United States. Mitigation has not been shown. Clearance is denied.

STATEMENT OF CASE

On January 31, 2003, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended), and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on February 25, 2003, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to the Applicant on June 27, 2003. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on July 15, 2003, and submitted a response dated August 3, 2003.

The case was assigned to the undersigned for resolution on August 25, 2003.

FINDINGS OF FACT

The Applicant is 58 years old and married. He is employed by a defense contractor as an architect and is seeking to obtain a security clearance in connection with his employment. The Government opposes the Applicant's request for a continued security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR:

Paragraph 1 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

The Applicant was born in the Peoples Republic of China, (hereafter referred to as China), in 1945. He became a naturalized citizen of the United States in January 2000. His wife became a naturalized citizen of the United States in March 2000. He has one child, a daughter, who is also a United States citizen. He has two sisters and one brother who are citizens of and reside in China. He has telephonic contact with his siblings in China approximately four times per year. He traveled to China in 1998, to visit his ill father and in 2000, to attend his funeral. He also traveled to China in 1998, and 2001, for business purposes. The Applicant's mother is also deceased. There is no evidence in the record as to whether his siblings in China are affiliated in any capacity with the Chinese government, or are in a position to be exploited by China in a way that could force the Applicant to choose between the loyalty to his siblings and the United States.

POLICIES

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Foreign Influence

A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are: (1) not citizens of the United States or (2) may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

Condition that could raise a security concern:

1. An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country.

Conditions that could mitigate security concerns:

3. Contacts and correspondence with foreign citizens are casual and infrequent.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

The Government must make out a case under Guideline B (foreign influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the does not pose a security risk, and that the Applicant presently qualifies for a security clearance.

An individual who has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. Foreign influence can raise questions as to whether the Applicant can be counted upon to place the interests of the United States paramount to that of another nation. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

CONCLUSION

Having considered the evidence in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR, and that Applicant's foreign contacts have a direct impact on his suitability for access to classified information.

With respect to Guideline B, the evidence establishes that the Applicant's foreign ties subject him to foreign influence. Although the Applicant has minimal contact with his siblings in China which would make mitigating factor 3 applicable, there is no evidence in the record to indicate whether or not his siblings are affiliated in any capacity with the Chinese government. Thus, I cannot make 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 and the United States. Based on the foregoing, Guideline B is found against the Applicant. Considering all the evidence, the Applicant has not met the mitigating conditions of Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guideline B.

FORMAL FINDINGS

Formal Findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant.

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: Against the Applicant

Subparagraph 1.d.: Against the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interests to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson

Administrative Judge

FOOTNOTES

02-28036.h1 FOR GOVERNMENT Melvin A. Howry, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-28036.h1.html[6/24/2021 11:12:45 AM] 02-28036.h1