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ISCR Case 04-03319.h1 — CASE

ISCR Case 04-03319.h1granted

Case Headnote

ISCR Case No. 04-03319.h1

grantedOct 20, 2005· Hon. Charles D. Ablard· hearing

Summary

A 26-year-old U.S. citizen software engineer was granted a security clearance after mitigating concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The Statement of Reasons alleged that the applicant held dual citizenship with Hong Kong and possessed a British passport, which he had used for travel to Hong Kong. These conditions raised disqualifying concerns related to foreign influence and preference.

To address these issues, the applicant renounced his dual citizenship with Hong Kong and surrendered his British passport. He demonstrated a strong commitment to the United States, having resided in the country since age 14 and becoming a citizen at the earliest opportunity. His relationship with his father, who lives in Hong Kong, was described as remote, further reducing concerns about potential foreign influence.

Based on a whole person analysis, the judge determined that the applicant had successfully mitigated the initial concerns. The applicant's actions, including the renunciation of dual citizenship and surrender of his foreign passport, along with his long-term residency and commitment to the U.S., led to the granting of his security clearance.

Why the Applicant Prevailed

Applicant renounced dual citizenship with Hong Kong and surrendered his British passport.
He has lived in the U.S. for over 12 years and became a citizen at the earliest opportunity.
The relationship with his father is remote, reducing concerns of foreign influence.

Conditions Referenced

Disqualifying

E2.A2.1.2.1raisedForeign Influence
E2.A3.1.2.1raisedForeign Preference

Mitigating

E2.A2.1.3.1appliedForeign Influence
E2.A3.1.3.4appliedForeign Preference

Key Rule Quoted

“"The objective of the security clearance process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information."”
— null

Procedural Posture

SOR issuedNov 10, 2004
Answer filedDec 23, 2004
Hearing heldAug 31, 2005
Decision dateOct 20, 2005

Cite For

Mitigation of Foreign Preference Through Renunciation of Dual Citizenship
Remote Family Ties as a Mitigating Factor Under Foreign Influence
Whole Person Analysis in Security Clearance Determinations

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 mitigated concerns regarding foreign influence by renouncing dual citizenship with Hong Kong and surrendering his British passport. The applicant's only close relative in Hong Kong is his father, who holds a U.S. green card and has a remote relationship with the applicant. The judge concluded that the applicant's ties to the U.S. and his professional and educational commitments outweighed any foreign influence concerns, resulting in a decision to grant the security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a–2.c	3 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Immediate Family	—		—	—	—

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: granted

The applicant mitigated allegations of foreign preference by renouncing dual citizenship with Hong Kong and surrendering a British passport. The judge found that the applicant's ties to Hong Kong were minimal and that he had established a strong commitment to the United States, leading to a favorable decision regarding his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant has dual citizenship with Hong Kong and holds a British passport.	For Applicant	Foreign Citizenship Acquisition or Application	Admitted	—	(a) the foreign citizenship is not in conflict with U.S. national security interests	—
1.b	Applicant has used a British passport for travel to Hong Kong.	For Applicant	Foreign Passport Possession or Use	Admitted	—	(a) the foreign citizenship is not in conflict with U.S. national security interests	—

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

SYNOPSIS

KEYWORD: Foreign Preference; Foreign Influence

DIGEST: Applicant mitigated allegations of foreign preference and foreign influence by renouncing dual citizenship with Hong Kong and turning in the British passport issued to him before he emigrated to the U.S. in 1981 at age 14. Applicant has spent the last 12 years in the U.S., attending high school and university. He and his mother became citizens at the earliest opportunity and the only close relative that remains in Hong Kong, now a Special Administrative Region of China, is his father who holds a U.S. green card, and desires to emigrate to the U.S. Applicant's relationship with his father has always been remote. Based on a whole person analysis, clearance is granted.

CASENO: 04-03319.h1

DATE: 10/20/2005

DATE: October 20, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-03319

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

APPEARANCES

SYNOPSIS

Applicant mitigated allegations of foreign preference and foreign influence by renouncing dual citizenship with Hong Kong and turning in the British passport issued to him before he emigrated to the U.S. in 1981 at age 14. Applicant has spent the last 12 years in the U.S., attending high school and university. He and his mother became citizens at the earliest opportunity and the only close relative that remains in Hong Kong, now a Special Administrative Region of China, is his father who holds a U.S. green card, and desires to emigrate to the U.S. Applicant's relationship with his father has always been remote. Based on a whole person analysis, clearance is granted.

STATEMENT OF CASE

On November 10, 2004, the 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 December 23, 2004, Applicant responded to the allegations set forth in the SOR, and requested a hearing. The case was assigned to me on June 20, 2005, and a Notice of Hearing was issued August 10, 2005, for a hearing held on August 31, 2005. The Government introduced ten exhibits at the hearing and the Applicant introduced eight. All were accepted into evidence. The Applicant testified on his own behalf. The transcript was received on September 16, 2005.

FINDINGS OF FACT

Applicant admitted the specific facts in all allegations under Foreign Preference-Guideline C, and under Foreign Influence-Guideline B with explanatory information provided for each allegation. 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 26-year-old employee of a major defense contractor working as a software engineer. His parents emigrated from Hong Kong in 1981 when he was 14 years old. He attended high school and graduated from a state university in 2001 with a degree in computer science. He immediately began working for his present employer and continued his studies. He recently received a master's degree in computer science and is now enrolled in graduate school working towards an executive MBA sponsored by his employer. He worked on unclassified projects until 2003 when he applied for a security clearance.

After his family emigrated to the U.S., his father discovered that his lack of English language skills limited his employment as a public accountant in the U.S., so he returned to Hong Kong after only a month in the U.S. He was re- employed by his former employer and still lives and works there as an auditor. He and his wife visit each other in their respective countries, and he holds a U.S. green card. Applicant's mother and Applicant became citizens in 2000, at their earliest opportunity to do so.

Applicant traveled to Hong Kong six time since 1997. The first two were before he became a U.S. citizen, so he used a British passport issued to Hong Kong citizens. After becoming a U.S. citizen he used a U.S. passport for the next four trips. The purpose of those trips were as follows:

1. 1997-High school graduation trip;

2. 1998-terminal illness of grandmother;

3. 2001-college graduation trip;

4. 2002-60th birthday of father;

5. 2003-funeral of maternal grandfather; and

6. 2004-funeral of paternal grandfather. The last trip was after the SOR was issued and Applicant advised the DSS agent of it when he was interviewed. Applicant has no intention of traveling to Hong Kong in the near future as he is heavily involved in his work and school studies, and his family ties have been reduced through the deaths of his grandparents.

Applicant held a British passport when he came to the U.S. but believed he was no longer a foreign citizen once he became a U.S. citizen. He realized that he might be when he received the SOR. The British passport has now expired. He had a Hong Kong identification card that is required for all persons living in or visiting Hong Kong which he had when he lived there. He used that card while in Hong Kong on visits because it is required to have either a card or a passport to show and he was reluctant to carry a U.S. passport with him at all times. When he realized that he held dual citizenship, he renounced his Hong Kong citizenship and turned in both the passport and identification card (Exh. A). He has never voted in Hong Kong, had bank accounts there, owned property, or served in the military (TR. 42).

In addition to his father in Hong Kong he has three uncles, one maternal and two paternal, living there who have low level jobs. He has little or no contact with them except seeing them at funerals of their respective fathers, Applicant's grandfathers, in 2003 and 2004. One drives a garbage truck, another may be a musician and the occupation of the third is unknown. His relationship with his father is remote and cold (TR. 54). It has been since his youth when his father was so heavily involved in his work that he was rarely at home. He has little contact with him now except for occasional telephone calls no more than a dozen times a year when his father calls to inquire about Applicant. His father visits his wife in the U.S. but Applicant is unaware when these visits occur. His father has never visited Applicant in his home nor has he been invited to do so (TR. 54-55). The last time he saw his father was in 2004 at the funeral of his paternal grandfather in Hong Kong.

Applicant is well regarded in his job by his colleagues, loves his work and his graduate studies, and is proud of his work in the defense community (Exh. F-H). Applicant is single, and participates in community activities similar to those enjoyed by young single college graduates in a mid size U.S. city. He bicycles and works at a local festival in his community (TR. 43).

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:

The applicable guidelines for Foreign Preference Guideline C provide that an individual who acts in such a way as to indicate a preference for a foreign country over the United States 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 and may be disqualifying include the exercise of dual citizenship (E2.A3.1.2.1.), and the possession and/or use of a foreign passport. Security concerns may be mitigated by a willingness to renounce dual citizenship (E2.A3.1.3.4.)

Applicant has turned in his British passport and is not a dual citizen. He never regarded himself as one once he became a U.S. citizen and was surprised to learn that he was one when the SOR was issued. The government conceded that the passport issue was largely mitigated but expressed concern about the voluntary use of the identification card (TR. 71). However, Applicant's explanation of the reason for its use and the rationale for using it in lieu of carrying a passport is reasonable. While his travels to Hong Kong since 1997 were frequent, half of them were to attend funerals of grandparents, an understandable motivation for the trips. While control of Hong Kong transferred from Great Britain to China in 1997, it retains a degree of independence as a Special Administrative Region with its own governance including an elected legislature. The government has asserted its independence of the mainland on a number of occasions and although it is not the same as it was pre-1997, it does not have the level of security concerns as the rest of the Peoples Republic of China (Exh. II and X, pp. 50-70).

Conditions under Guideline B that could raise a security concern and may be disqualifying include 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.A2.1.2.1.) Possible mitigating conditions (MC) that might be applicable are a determination that the individuals in question 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 persons involved and the U.S.(E2.A2.1.3.1.), and contacts and correspondence with foreign citizens are casual and infrequent. (E2.A2.1.3.3.)

Based on the evidence of record, including Applicant's admissions, the Government established reasons to deny him a security clearance because of foreign influence. Having established such reasons, the Applicant had 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 (App. Bd. Feb. 8, 2001).

The family members of the Applicant in Hong Kong are his father and three uncles. The government conceded that the issues regarding the uncles had been mitigated (TR. 72). None of them pose a security threat or are in a position to be influenced by the conduct of their government, and Applicant does not have a close relationship with them. Through the deaths of all grandparents in Hong Kong, the only close relative Applicant has in Hong Kong is his father. He holds a U.S. green card and would like to become a U.S. citizen once he retires from his employment at the accounting firm. Despite the separation by a continent and an ocean for a quarter of a century, his parents remain married and appear likely to both be in the U.S. upon the father's retirement.

Applicant's relationship with his father since his youth is unusual having a lack of the usual parental identification but is understandable because of the father's absence from the life of the son for a quarter century. Evidence an applicant has contacts with an immediate family member in a foreign country raises a rebuttable presumption the contacts are not casual in nature. The unique relationship Applicant has with his father comes as close to casual as might be imagined. They were never close and are even less so as Applicant becomes increasingly involved in his work and his graduate studies. The Applicant has overcome the presumption.

In all adjudications the protection of our national security is of paramount concern. Persons who have access to classified information have an overriding responsibility for the security of the nation. The objective of the security clearance process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information. The "whole person" concept recognizes that we should view a person by the totality of their acts and omissions. Each case must be judged on its own merits taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis.

Applicant is a young person who has a responsible position of trust and is doing a good job for his company. He has spent his entire adult life since age 14 in the U.S. He is U.S. educated, and embarked on a promising career path as he continues his studies. He provided sincere, credible, and reliable testimony as to his relationships with his family, his motivations, his loyalty to the U.S., and his career goals. His is the classic story of the successful immigrant with drive and determination.

After considering all the evidence in its totality and as an integrated whole to focus on the whole person of Applicant, I conclude that it is clearly consistent with the national interest to grant clearance to Applicant.

FORMAL FINDINGS

Formal Findings as required by Section E3.1.25 of Enclosure 3 of the Directive are hereby rendered as follows:

Paragraph l Guideline C: FOR APPLICANT

Subparagraph 1.a.: For Applicant

Subparagraph 1.b.: For Applicant

Paragraph 2 Guideline B: FOR APPLICANT

Subparagraph 2.a.: For Applicant

Subparagraph 2.b.: For Applicant Subparagraph 2.c.: 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. Clearance is granted.

Charles D. Ablard

Administrative Judge

Loading case…

Case Profile

Summary

Why the Applicant Prevailed

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES