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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 06-23923
)
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer Goldstein, Esquire, Department Counsel
For Applicant: Pro Se 
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Decision
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LYNCH, Noreen A., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on November 23,
2005. On August 9, 2007, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) detailing the security concerns under Guideline B for
Applicant. The action was taken under Executive Order 10865, Safeguarding Classified
Information within Industry (February 20, 1990), as amended; Department of Defense
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program
(January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG)
promulgated by the President on December 29, 2005, and effective within the
Department of Defense for SORs issued after September 1, 2006. 
 
Applicant acknowledged receipt of the SOR on August 28, 2007. He elected to
have his case decided on the record in lieu of a hearing. Department Counsel submitted
the Government’s written case on October 15, 2007. Applicant received a complete file
of relevant material (FORM) on October 22, 2007, and was provided an opportunity to
file objections and submit material to refute, extenuate, or mitigate the Government’s
The Government submitted five items in support of its contentions.1
The case was originally assigned to another judge. It was transferred due to caseload considerations.2
Item 2 (Applicant’s Answer to SOR, dated August 28, 2007).3
Item 5 (Application for Security Clearance, dated November 23, 2005).4
Id. 5
Item 4 (Answer to Interrogatories, dated January 11, 2007).6
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case.  Applicant did not submit additional information by November 30, 2007. The case1
was assigned to me on January 9, 2008.  Based upon a review of the case file, eligibility2
for access to classified information is denied.
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to People’s Republic of China (PRC). The request and the
attached source documents were included in the record as attachments. (I-VII) The
facts administratively noticed are set out in the Findings of Fact, below. 
Findings of Fact
In his Answer to the SOR, dated August 28, 2007, Applicant admitted the factual
allegations in ¶¶ 1.a, 1.b, 1.c, 1.d, 1.e, and 1.f of the SOR.  He did not submit additional3
information to support his request for eligibility for a security clearance.
Applicant is a 41-year-old employee of a defense contractor. He was born and
raised in China, and emigrated to the U.S. in 1997. Applicant became a naturalized U.S.
citizen on March 25, 2005. He submitted a security clearance application on November
23, 2005.  4
Applicant received a bachelor of science degree in computer science from a U.S.
university. After receiving his degree, he worked as a research associate for another
university. Currently, he is employed as an engineer for a contractor. He has been in his
current position since March 2000.5
He was married in China in 1991. His wife is a citizen of China, but resides in the
U.S. with Applicant and their son, a U.S. citizen. Applicant’s mother, father, brothers,
and mother-in-law are citizens and residents of China.6
Applicant’s brother is a professor at a university in China. The university is no
longer a state entity. His parents are retired. The company they retired from has no
Id.7
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connections with the government. None of his relatives have ever been employed by
the government.7
Applicant has traveled to China at least six times since 1999. His latest trip was
in August 2006 to visit his family. He has weekly contact with his mother and father and
monthly contact with his brothers.
I take administrative notice of the following facts. China (PRC) is an authoritarian
state whose power is centralized in the Chinese Communist Party. In foreign relations,
China and the U.S. have been rivals since the Cold War, with particular disagreement
on the status of Taiwan, and China has continued to resist what it considers to be
superpower dominance by the U.S., despite improving economic relations. The United
States is a primary intelligence target of China because of the U.S. role as a global
superpower; its substantial military, political, and economic presence in the Pacific Rim
and Asia; its role as a developer of advanced technology that China requires for
economic growth; and the large number of Americans of Chinese ancestry, who are
considered prime intelligence targets by the PRC. China uses legal and illegal means,
including espionage, to obtain military related systems and technologies from the U.S.
China has a poor human rights record and its citizens lack freedom to peacefully
express opposition to the political system or to freely change those in charge of the
government. There are many high profile cases involving monitoring, harassment,
detention, arrest, and imprisonment of journalists, writers, activists, and defense
lawyers, many of whom were seeking to exercise their rights under the law. There is a
lack of due process and new restrictions on lawyers that further limits the progress
toward the rule of law. There are right restrictions on freedom to practice religion and
freedom to travel. According to the U.S. State Department, the government of China
engages in serious human rights abuses including, extrajudicial killings, torture, coerced
confessions of prisoners, and forced labor.
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful in
evaluating an Applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole person concept.” The Administrative Judge must consider all available,
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reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).
  
Analysis
Guideline B, Foreign Influence
The security concern relating to the guideline for Foreign Influence is set out in
AG & 6:      
Foreign contacts and interests may be a security concern if the individual
has divided loyalties or foreign financial interests, may be manipulated or
induced to help a foreign person, group, organization, or government in a
way that is not in U.S. interests, or is vulnerable to pressure or coercion by
any foreign interest. Adjudication under this Guideline can and should
consider the identity of the foreign country in which the foreign contact or
financial interest is located, including, but not limited to, such
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considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associates with a
risk of terrorism. 
The guideline notes several conditions that could raise security concerns. Under
AG & 7(a), a Acontact with a foreign family member, business or professional associate,
friend, or other person who is a citizen of or a resident in a foreign country if that contact
creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or
coercion” may create a security concern. Similarly under AG & 7(d) “sharing living
quarters with a person or persons, regardless of citizenship status, if that relationship
creates a heightened risk of foreign inducement, manipulation, pressure or coercion”
may raise security concerns. Applicant’s wife is a citizen of China. His mother, father
and two brothers are citizens and residents of China. Applicant and his wife have visited
their family on numerous occasions since 1999. The latest trip was last year. China is a
country whose human rights record is dismal and the potential for abuse is high.
Applicant’s familial relationship with citizens and residents of China creates a
heightened risk of potential exploitation, inducement, manipulation, pressure or
coercion. The evidence is sufficient to raise these potentially disqualifying conditions,
requiring a closer examination.
The guideline also includes examples of conditions that could mitigate security
concerns arising from foreign influence. Under AG ¶ 8(a), the disqualifying condition
may be mitigated where Athe nature of the relationships with foreign persons, the
country in which these persons are located, or the positions or activities of those
persons in that country are such that it is unlikely the individual will be placed in a
position of having to choose between the interests of a foreign individual, group,
organization, or government and the interests of the U.S.” Applicant and his wife have
been married since 1991 and have a child. Although his wife maintains her residency in
the U.S., she has emotional ties with her family in China. Applicant’s family is in China.
He and his wife visit their family frequently. Applicant and his wife keep in touch with
their family by telephone. Applicant is a naturalized U.S. citizen, however, there is a
heightened risk due to his wife’s status and his family ties to China. Unfortunately,
China is a country that causes concern in the area of potential exploitation and coercion
which makes Applicant vulnerable. His contact with his family cannot be construed as
minimal. This creates a potential conflict of interest. The evidence does not raise this
potentially mitigating condition. 
Under AG & 8(b), it may be mitigating where Athere is no conflict of interest,
either because the individual’s sense of loyalty or obligation to the foreign person,
group, government, or country is so minimal, or the individual has such deep and
longstanding relationships and loyalties in the U.S., that the individual can be expected
to resolve any conflict of interest in favor of the U.S. interest.” As noted above, Applicant
has longstanding, close ties with his family. There is no record evidence to indicate
deep loyalty to the U.S. I find this potentially mitigating condition is not a factor for
consideration in this case. 
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Evidence that “contact or communication with foreign citizens is so casual and
infrequent that there is little likelihood that it could create a risk for foreign influence or
exploitation” is potentially mitigating under AG & 8(c). Applicant traveled to China
numerous times to visit his family. He also contacts them on a regular basis. I conclude
this potentially mitigating condition does not apply.
After a review of the remaining mitigating conditions, I find that none of them
apply in this case.
Whole Person Concept
Under the whole person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances. The Administrative Judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a): “(1) the nature, extent, and seriousness
of the conduct; (2) the circumstances surrounding the conduct, to include
knowledgeable participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) extent to which participation
is voluntary; (6) the presence or absence of rehabilitation and other permanent
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.”
Under AG ¶ 2©, the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.       
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant was born and raised in
China. He married his wife in 1991. She is living in the U.S. but is a citizen of China.
Applicant received his undergraduate degree in computer science from an American
university in 1998. He became a naturalized citizen in 2005. He is married to a Chinese
citizen and all his family reside in China. He and his wife have close ties to their
relatives in China. They have traveled at least six times since 1999 to visit their family.
They communicate with them on a regular basis. The familial ties are close and the
practices exercised by China create a heightened security risk. I am persuaded by the
totality of the evidence that it is not clearly consistent with the interests of national
security to grant Applicant a security clearance. In reaching my decision, I considered
the evidence as a whole, including the appropriate factors and guidelines. 
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising from foreign
influence.
 
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline B: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Subparagraph 1.f: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
_________________
NOREEN A. LYNCH
Administrative Judge