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ISCR Case 02-29146.h1 — CASE

ISCR Case 02-29146.h1denied

Case Headnote

ISCR Case No. 02-29146.h1

deniedJun 30, 2003· Hon. Joseph Testan· hearing

Summary

A 27-year-old U.S. citizen and defense contractor, originally from Hong Kong, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed primarily from his possession of a valid foreign passport, which he had not surrendered.

The Statement of Reasons noted that the applicant's brother is a Hong Kong citizen who has resided in the U.S. for 14 years, and that the applicant exchanges emails with a Hong Kong citizen residing in Hong Kong, whom he met in college. However, the core issue was the applicant's failure to surrender his foreign passport and his inability to provide credible evidence of official U.S. Government approval for its use.

Despite the presence of a mitigating condition, the disqualifying condition related to foreign preference was not overcome. The applicant's continued possession of a foreign passport without official authorization was the decisive factor in the denial of his security clearance.

Why the Applicant Was Denied

The applicant possesses a valid foreign passport, which he has not surrendered.
The applicant did not provide credible evidence of official approval for the use of his foreign passport.

Conditions Referenced

Disqualifying

E2.A3.1.2.2raisedPossession And/or Use of a Foreign Passport.

Mitigating

E2.A2.1.3.1appliedThe Immediate Family Member in Question Is Not an Agent of the Foreign Power or in a Position to Be Exploited by the Foreign Power in a Way That Could Force Applicant to Choose Between Loyalty to the Immediate Family Member and the United States.

Key Rule Quoted

“An applicant possessing a valid foreign passport cannot be granted access to classified information unless he does one of two things: (1) surrenders the passport, or (2) offers credible evidence that he obtained official approval for its use from the appropriate United States Government agency.”

Procedural Posture

SOR issuedJan 31, 2003
Answer filedFeb 19, 2003Applicant elected to have the case determined on a written record.
Hearing held—No hearing was held.
Decision dateJun 30, 2003

Cite For

Denial of Security Clearance Due to Possession of a Foreign Passport
Consideration of Family Ties Under Guideline B
Impact of Foreign Preference on 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 brother, a Hong Kong citizen, has lived in the United States for 14 years and intends to apply for U.S. citizenship, which mitigated concerns regarding foreign influence. Additionally, the applicant's email exchanges with a friend from college in Hong Kong were not deemed a security concern. Overall, the judge ruled in favor of the applicant under Guideline B.

U.S. ties the decision noted: Naturalized U.S. Citizen · 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 Hong Kong citizen who has resided in the United States for the past 14 years.	For Applicant	Sibling in Foreign Country Immediate Family	Hong Kong	Denied	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Claimed Other
1.b	Applicant exchanges email with a Hong Kong citizen residing in Hong Kong who he met while attending college in the United States.	For Applicant	Friend in Foreign Country Friend	Hong Kong	Denied	—	(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.

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant's possession of a valid foreign passport was the primary concern under Guideline C, leading to a denial of his security clearance request. Although the applicant expressed a willingness to surrender the passport, he had not taken any action to do so, which contributed to the ruling against him.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant possesses a valid foreign passport.	Against Applicant	Foreign Passport Possession or Use	Admitted	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.b	Applicant has not surrendered the foreign passport.	Against Applicant	Failure to Renounce or Surrender Foreign Status	Admitted	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.c	Applicant has not offered credible evidence that he has received official approval for the use of the foreign passport from the appropriate United States Government agency.	Against Applicant	Failure to Renounce or Surrender Foreign Status	Denied	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—
1.d	Applicant exchanges email with a friend from college who is a citizen and resident of Hong Kong.	For Applicant	Unspecified Foreign Preference	Admitted	—	—	—

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: June 30, 2003 In Re: ------------------ SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-29146 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant's current possession of a valid foreign passport requires a denial of his security clearance request. Clearance is denied.

STATEMENT OF CASE

On January 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 February 19, 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 May 9, 2003. Applicant did not respond to the FORM. The case was assigned to me on June 27, 2003.

FINDINGS OF FACT

Applicant is a 27 year old employee of a defense contractor. Applicant was born and raised in Hong Kong. In 1994 he immigrated to the United States, and in 1999 he became a United States citizen. Applicant possesses a United Kingdom passport that was issued to him while he was still a resident of Hong Kong. He renewed the passport shortly before moving to the United States in 1994, and it is valid until February 2004. Applicant states that he is willing to give up the passport, but to date he has not taken any action to surrender it. He further states that he does not plan to use it before it expires, and once it expires, he will not renew it. Applicant possesses a Hong Kong identification card, which he used on a pleasure trip to Hong Kong in 2000. Applicant's brother is a Hong Kong citizen who has resided in the United States for the past 14 years. The brother intends to apply for United States citizenship as soon as he is eligible to do so in 2004. The brother has no connection with any foreign governments or officials. The brother is applicant's only immediate family member who is not a United States citizen. Applicant exchanges email with a Hong Kong citizen residing in Hong Kong who he met while attending college in the United States. Applicant states that he takes his "allegiance to the United States seriously and would not do anything to betray that allegiance."

POLICIES

Enclosure 2 of the Directive sets forth Guidelines (divided into Conditions that could raise a security concern and conditions that could mitigate security concerns) which must be followed by the Administrative Judge. Based on the foregoing Findings of Fact, the following Disqualifying Factors and Mitigating Factors are applicable: Foreign Influence 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 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. Conditions that could raise a security concern: 1. E2.A2.1.2.1: An immediate family member is a citizen or resident of a foreign country. Conditions that could mitigate security concerns: 1. E2.A2.1.3.1: The immediate family member in question is not an agent of the foreign power or in a position to be exploited by the foreign power in a way that could force applicant to choose between loyalty to the immediate family member and the United States. Foreign Preference The Concern: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. Conditions that could raise a security concern: 2. E2.A3.1.2.2: Possession and/or use of a foreign passport. Conditions that could mitigate security concerns: None.

CONCLUSION

With respect to Guideline B, the evidence establishes that applicant's brother is a citizen of Hong Kong. However, this brother has lived in the United States for 14 years, and as soon as he is eligible to do so in 2004, he intends to apply for United States citizenship. These facts, together with the fact there is no evidence that the brother has any connection with the Hong Kong government, leads me to conclude the brother 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 applicant to choose between loyalty to the brother and loyalty to the United States. (1) Based on the foregoing, Guideline B is found for applicant. (2) With respect to Guideline C, applicant's conduct since moving to the United States indicates, for the most part, a preference for the United States. The sole exception is his possession of the foreign passport. The Money memorandum (Exhibit 4) sets forth the official DoD policy for cases involving possession and/or use of a foreign passport. Pursuant to this memorandum, an applicant possessing a valid foreign passport cannot be granted access to classified information unless he does one of two things: (1) surrenders the passport, or (2) offers credible evidence that he obtained official approval for its use from the appropriate United States Government agency. Given the facts that applicant has not surrendered the passport, and has not offered credible evidence that he has received official approval for its use from the appropriate United States Government agency, applicant's clearance request must be denied under Guideline C.

FORMAL FINDINGS

GUIDELINE B: FOR THE APPLICANT GUIDELINE C: 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. ____________________________ Joseph Testan Administrative Judge 1. Accordingly, Mitigating Factor 1 is applicable. 2. The fact that applicant exchanges email with a friend from college who is a citizen and resident of Hong Kong does not, by itself, raise a security concern.

FOOTNOTES

02-29146.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/02-29146.h1.html[6/24/2021 11:14:41 AM] 02-29146.h1