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ISCR Case 02-28310.h1 — CASE

ISCR Case 02-28310.h1denied

Case Headnote

ISCR Case No. 02-28310.h1

deniedJun 29, 2004· Hon. John Grattan Metz, Jr.· hearing

Summary

A 59-year-old naturalized U.S. citizen, originally from the People's Republic of China (PRC), was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed from significant ties to family and friends residing in the PRC, a country identified as having a repressive, totalitarian government with foreign policy goals antithetical to the U.S., and which does not recognize dual citizenship.

Specific concerns included the applicant's immediate family members and close friends being PRC citizens or residents. The applicant maintained regular contact with her sister during visits to the PRC and also had several extended family members and friends there. Although she claimed estrangement from two brothers due to refusing financial support or immigration sponsorship, her overall connections were deemed substantial.

Further, the applicant's husband maintained weekly contact with his family in the PRC, sending $1,000 or more annually to support his 85-year-old mother and returning annually to visit. These combined factors, including the applicant's history of living and working in the PRC, led to the determination that she presented a potential vulnerability to foreign influence, coercion, or exploitation.

Why the Applicant Was Denied

The applicant has siblings and extended family members who are citizens and residents of the PRC, creating a potential for foreign influence.
The applicant's husband maintains regular contact and financial support for his family in the PRC, further indicating ties to a foreign country.
The applicant's history of living and working in the PRC raises concerns about her vulnerability to coercion or exploitation.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedImmediate Family Member, or a Person to Whom the Individual Has Close Ties of Affection or Obligation, Is a Citizen Of, or Resident In, a Foreign Country.

Key Rule Quoted

“A person who seeks access to classified information enters into a fiduciary relationship with the U.S. Government that is predicated upon trust and confidence.”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedJan 15, 2004
Answer filedFeb 2, 2004
Hearing held—Decision made without a hearing.
Decision dateJun 29, 2004

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Family Ties on Security Clearance Eligibility
The Fiduciary Relationship Required for Access to Classified Information

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 had significant foreign influence concerns due to her close ties with family and friends who are citizens and residents of the People's Republic of China. Despite one subparagraph being ruled in her favor, the overall findings led to a denial of her security clearance due to the inability to mitigate the risks associated with these foreign connections.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Children · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	specific text not stated in this decision	For Applicant	Unspecified Foreign Relationship Other	— HEIGHTENED RISK	Unknown	—	—	—
1.b	An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident in, a foreign country.	Against Applicant	Sibling in Foreign Country Immediate Family	People's Republic of China HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.c	The applicant has regular contact with her sister, whom she has visited during her return trips to the PRC.	Against Applicant	Sibling in Foreign Country Immediate Family	People's Republic of China HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.d	The applicant is estranged from her two brothers because she refuses to send them money or sponsor their immigration to the U.S.	Against Applicant	Sibling in Foreign Country Immediate Family	People's Republic of China HEIGHTENED RISK	Denied with Explanation	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.e	The applicant has several extended family members and friends who are citizens and residents of the PRC.	Against Applicant	Extended Family in Foreign Country Extended Family	People's Republic of China HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.f	The applicant maintains contact with them when she visits the PRC.	Against Applicant	Friend in Foreign Country Friend	People's Republic of China HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.g	The applicant's husband contacts his family weekly and sends $1,000.00 or more annually to support his 85-year old mother.	Against Applicant	In Law in Foreign Country Immediate Family	People's Republic of China HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.h	The applicant's husband returned to the PRC annually to visit his family.	Against Applicant	In Law in Foreign Country Immediate Family	People's Republic of China HEIGHTENED RISK	Denied	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
1.i	The PRC is a repressive, totalitarian government with foreign policy goals antithetical to the U.S.	Against Applicant	Unspecified Foreign Relationship Other	People's Republic of China HEIGHTENED RISK	Unknown	—	—	—
1.j	The PRC does not recognize dual citizenship of its citizens who become naturalized U.S. citizens.	Against Applicant	Unspecified Foreign Relationship Other	People's Republic of China HEIGHTENED RISK	Unknown	—	—	—

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: June 29, 2004

In Re: ------------- SSN: ----------- Applicant for Security Clearance

ISCR Case No. 02-28310 DECISION OF ADMINISTRATIVE JUDGE JOHN G. METZ, JR.

SYNOPSIS Applicant is potentially subject to foreign influence where her siblings, in-laws, extended family members, and friends are citizens and residents of the People's Republic of China. Clearance denied.

STATEMENT OF CASE

Applicant challenges the 15 January 2004 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of her clearance. (1) She answered the SOR on 2 February 2004 and requested a decision without hearing. She did not respond to the File of Relevant Material, issued 2 April 2004. The record closed on 8 May 2004, the date the response was due at DOHA. The case was assigned to me on 20 May 2004.

FINDINGS OF FACT

Applicant admitted the allegations of the SOR, except for the allegations of subparagraph 1.d. (2) and 1.j.; accordingly, I incorporate those admissions as findings of fact. A 59-year-old employee of a defense contractor, she seeks access to classified information. She has not previously held a clearance. Applicant was born in what is now the People's Republic of China (PRC) in 1944. She grew up in China, was educated there, married there, and raised a family there. She was employed at the Shanghai Municipal Bureau of Standards from 1971 to 1991. When she left, she was the Chief of Research and Development. She appears to have been the object of some official scrutiny by government officials when she and her coworkers prepared a banner (never displayed) in support of the protesters in Tiananmen Square in 1989. It appears that Applicant and husband first came to the U.S. sometime after 1991. (3) The circumstances of her immigration to the U.S. do not appear in the record. Applicant became a naturalized U.S. citizen in September 1999; she obtained her U.S. passport the same month. Her husband became a U.S. citizen in August 1999. Her daughter became a U.S. citizen in January 2004. Applicant's parents are both dead. However, her siblings are all citizens and residents of the PRC. She has regular contact with her sister, whom she has visited during her return trips to the PRC. She is estranged from her two brothers because she refuses to send them money or sponsor their immigration to the U.S. She also has several extended family members and friends who are citizens and residents of the PRC. She maintains contact with them when she visits the PRC. Applicant returned to the PRC in 1993 as an interpreter for her employers (an accountant and an attorney) who had business meetings there. She returned to the PRC in June 1997 and November 1998 to visit her aging father, returned again in October 1999 to visit him when he fell ill, and returned for a last time in October 2000 to spread his ashes into the sea. Applicant's PRC passport was originally valid from 1991 to 1995, but was extended to December 1999. Presumably, Applicant used her PRC passport to travel to the PRC in 1997 and 1998 (as she was not yet a U.S. citizen), but it is not clear from the record what passport she used to travel to the PRC in 1999 (when she had two valid passports) or 2000 (when she apparently had only a U.S. passport). Applicant's mother-in-law and sister-in-law are residents of the PRC residing in the PRC. Her husband contacts his family weekly and sends $1,000.00 or more annually to support his 85-year old mother. Until recently, he returned to the PRC annually to visit his family. The PRC is a repressive, totalitarian government with foreign policy goals antithetical to the U.S. It has an active, effective intelligence service that targets U.S. intelligence and economic information, and operates against its citizens in the U.S. The PRC does not recognize dual citizenship of its citizens who become naturalized U.S. citizens. The record contains no character references or information on Applicant's work performance.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section F.3. and in Enclosure (2) of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc. Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case: FOREIGN INFLUENCE (CRITERION B) E2.A2.1.1. The Concern: 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 not citizens of the United States or may be subject to duress. These situations 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. E2.A2.1.2. Conditions that could raise a security concern and may be disqualifying include: E2.A2.1.2.1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident in, a foreign country; E2.A2.1.3. Conditions that could mitigate security concerns include: None. Burden of Proof Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. Assessment of an applicant's fitness for access to classified information requires evaluation of the whole person, and consideration of such factors as the recency and frequency of the disqualifying conduct, the likelihood of recurrence, and evidence of rehabilitation. A person who seeks access to classified information enters into a fiduciary relationship with the U.S. Government that is predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability, or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSION

The Government established its case under Guideline B and the Applicant failed to mitigate the case against her. Applicant lived a substantial portion of her adult life in the PRC and worked for the same employer for 20 years. Her ties of obligation and affection to relatives and friends in the PRC are clear. She returned to the PRC regularly until her father died, but her contacts (and her husband's contacts) to family and friends still residing in the PRC remain strong. Given these contacts, Applicant has a heavy burden to establish that these family members and friends are not agents of a foreign government or otherwise not in a position to be exploited. Applicant's evidence does not overcome the Government's case, particularly where she herself was a government employee. I resolve Guideline B against Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline B: AGAINST THE APPLICANT Subparagraph a: For the Applicant Subparagraph b: Against the Applicant Subparagraph c: Against the Applicant Subparagraph d: Against the Applicant Subparagraph e: Against the Applicant Subparagraph f: Against the Applicant Subparagraph g: Against the Applicant Subparagraph h: Against the Applicant Subparagraph i: Against the Applicant Subparagraph j: Against 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. John G. Metz, Jr. Administrative Judge 1. Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated 2 January 1992--amended by Change 3 dated 16 February 1996 and by Change 4 dated 20 April 1999 (Directive). 2. Because her daughter became a naturalized U.S. citizen on 15 January 2004. 3. Aside from the SOR and answer, the only substantive evidence in the FORM is the Applicant's December 2001 clearance application which reflects her attendance at an educational institution in the U.S. in 1992, a contact known in the U.S. since 1993, her use of an American first name from 1991 to 1999, and her husband's use of an American first name since 1992. In addition, Applicant reported having a Chinese passport issued in January 1991.

FOOTNOTES

02-28310.h1 FOR GOVERNMENT Nygina T. Mills, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-28310.h1.html[6/24/2021 11:13:04 AM] 02-28310.h1