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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-03506
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Fahryn Hoffman, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant submitted his security clearance application (e-QIP) on April 10, 2006.
On July 11, 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 July 17, 2007. He answered the
SOR in writing on July 26, 2007, and requested a hearing before an Administrative
Judge. DOHA received Applicant’s response on August 6, 2007. Department Counsel
was prepared to proceed on September 26, 2007, and the case was assigned to me on
October 2, 2007. On November 15, 2007, I scheduled a hearing for December 11,
2007. At the hearing convened as scheduled, two government exhibits (Ex. 1-2) and
Applicant testified that on graduation from junior high school, students may attend technology school in lieu1
of high school and then go to work (“. . .in China the technology school gives a degree that’s lower than high
school but above junior high. . . .” Tr. 55).
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four Applicant exhibits (Ex. A-D) were admitted. Applicant and one witness, his direct
supervisor, testified on Applicant’s behalf. DOHA received the transcript of the hearing
(Tr.) on December 21, 2007. Based upon a review of the case file, pleadings, exhibits,
and testimony, eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
Request for Administrative Notice
On September 26, 2007, Department Counsel requested administrative notice be
taken of certain facts relating to the People’s Republic of China (PRC). The request was
based on publications from the U.S. State Department, the Office of the Secretary of
Defense, the Centre for Counterintelligence and Security Studies, the U.S. China
Economic and Security Review Commission, and the Office of the National
Counterintelligence Executive. The government’s formal request and the attached
documents were not admitted into evidence but were included in the record. On October
9, 2007, I gave Applicant until October 30, 2007, to file any objections and/or to submit
alternative facts for administrative notice. Applicant did not respond by the due date but
indicated at the hearing that he had no objections. I agreed to take administrative notice
of certain facts, which are set out in the Findings of Fact, below.
Findings of Fact
DOHA alleged under Guideline B, Foreign Influence, that Applicant’s brother is a
resident citizen of the PRC (SOR ¶ 1.a), that his parents are PRC citizens who were
staying with him in the U.S. on visitor visas as of October 2006 (SOR ¶ 1.b), that his
mother-in-law and stepfather-in-laws are resident citizens of the PRC (SOR ¶ 1.c); that
his mother-in-law had worked as a technician for a PRC nuclear agency before her
retirement (SOR ¶ 1.d) and his stepfather is or had been an employee of the same
government agency (SOR ¶ 1.e), and that Applicant traveled to the PRC in at least May
2002 (SOR ¶ 1.f). In his response of July 26, 2007, Applicant admitted the factual
allegations in the SOR without explanation. After consideration of the evidence of
record, I make the following findings of fact.
Applicant is a 36-year-old senior electrical engineer employed by a U.S. defense
contractor since January 2006. He held an interim secret-level security clearance that
was withdrawn on issuance of the SOR.
Applicant was born in the PRC to resident citizens in December 1971. His father
was a math teacher and his mother was an administrator at a public technology school
in the PRC before they retired in 2001 and 2002, respectively.  They were never1
members of the Chinese Communist Party. Applicant’s maternal grandfather had
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immigrated from Indonesia to the PRC in the early 1940s to avoid prosecution and his
mother was discriminated against during the Cultural Revolution because of her ethnic
background. She was denied the opportunity to study for a medical degree despite top
academics in high school. After being trained as a nurse, she went into school
administration.
Applicant was raised in the PRC with his brother, who was born in February
1973. After he graduated from college, Applicant began working as an electrical
engineer for a privately owned telephone company. In August 1995, Applicant came to
the U.S. to pursue graduate studies in electrical engineering at a public university.
Applicant planned to work in the U.S. for a few years after he finished his graduate
studies and then return to the PRC. While at the university, he met his spouse. A native
of the PRC, she had been raised by her grandparents. Her mother and stepfather lived
in another city because of their jobs. In 1991, when he was 15, she came to the U.S.
with her father who was studying at a private technological university. Following his
premature death in 1993 or 1994, she decided to stay in the U.S. permanently.
After he earned his master’s degree, Applicant relocated to his present locale in
July 1997 to work as an electrical engineer in the semiconductor industry. In August
1999, Applicant and his spouse married. Although he had applied for his green card
back in 1997, Applicant decided on his marriage to make the U.S. his permanent home.
His spouse, who was already a U.S. permanent resident, wanted to remain in the U.S.
He was also persuaded by his parents, who feared that his time in the U.S. and the
nature of his work could lead to their persecution in the PRC if the Chinese Communist
Party should change their present policies. In December 2000, Applicant’s spouse
became a naturalized U.S. citizen.
Applicant traveled to the PRC to see his parents and brother for three weeks,
from May 2002 to June 2002. It was his first trip back to China since coming to the U.S.
in 1995 and he had not seen his relatives in seven years.
In September 2002, Applicant left his job to pursue doctoral studies at a private
technological university in the area. In late July 2005, Applicant became a U.S. citizen,
taking an oath to renounce all foreign allegiances, to support and defend the U.S.
Constitution and its laws, and to bear arms or perform noncombatant service or civilian
service on behalf of the U.S. if required. Applicant formally took on the anglicized first
name that he had been using since 1995. A few days after his U.S. naturalization, he
and his spouse had a daughter. In August 2005, he obtained his U.S. passport.
Applicant’s mother-in-law came to the U.S. from the PRC in late June 2005 to
help Applicant’s spouse who was then expecting. She stayed for six months with
Applicant and her daughter. After her mother returned to the PRC, Applicant’s spouse
contacted her about once every two months.
In January 2006, Applicant began working for his present employer as a senior
electrical engineer while finishing up his Ph.D. degree, which was awarded him in
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February 2007. In March 2006, Applicant’s parents came to the U.S. on visitor visas so
that he could take care of them. In summer 2006, he sponsored his parents for U.S.
permanent residency, and they obtained their green cards in July 2007.
In about April 2006, Applicant’s direct supervisor asked Applicant to apply for a
secret-level clearance so that he could contribute to a particular project. On April 10,
2006, Applicant executed an electronic questionnaire for investigations processing (e-
QIP). Applicant gave his parents’ permanent residence in the PRC as their current
residence, although they were staying with him and his spouse at the time. He disclosed
that his brother and parents-in-law were resident citizens of the PRC. In October 2006,
Applicant was interviewed by an authorized investigator in conjunction with his
background investigation for his security clearance. Applicant’s parents were still in the
U.S. He had twice yearly contact with his mother-in-law, who was living with her spouse
in an apartment in a PRC major city. 
As of December 2007, Applicant’s parents were residing in a rented apartment in
the U.S., in a  city convenient to public transportation and the local Chinatown. Applicant
was paying the rental costs as his parents did not have any stable source of income.
Once in awhile, his mother earns some money taking care of the neighbor’s children.
His parents rent out a small apartment that they own in the PRC, which is being handled
by Applicant’s brother, but the income is just enough to cover the maintenance costs.
His parents intend to acquire U.S. citizenship when they become eligible and hope to
sell their apartment in the PRC when it becomes profitable to do so. They do not intend
at present to move back to the PRC (“they don’t have any intention at the moment to
move back.” Tr. 68). Applicant believes his mother intends to travel to the PRC in 2008
to visit her mother, who is almost 90. Applicant has contacted his maternal grandmother
only three or four times in the past 12 years. 
Applicant’s brother resides in the PRC with his spouse and young daughter (born
in 2001). Since his college graduation in 1994, Applicant’s brother has been employed
by the Chinese government in a local tourist department. He presently works as a clerk.
To Applicant’s knowledge, his brother is a Christian and not politically active in the PRC.
Before March 2006, Applicant had monthly contact with his brother to check on their
parents. In the past 18 months, Applicant has contacted his brother only once, on his
brother’s birthday. He does not anticipate contacting his brother any more frequently
than once or twice a year now that their parents are living near him in the U.S.
Applicant’s parents call his brother about once a month.
Applicant’s parents-in-law had worked for a nuclear agency within the PRC
government until their retirements in early 2000. During their last ten years on the job,
they organized family benefit activities for the workers. Applicant does not know the
nature of their previous duties. Due to their small pensions, they mainly live off their
savings. Neither Applicant nor his spouse provides financial support for her mother and
stepfather. In September 2007, Applicant’s parents-in-law came to the U.S. to visit their
daughters and grandchildren. Applicant’s spouse has a sister who lives in the U.S. with
her family. Applicant’s parents-in-law have been staying primarily with Applicant’s family
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and intend to return to the PRC in March 2008 before his mother-in-law’s visitor’s visa
expires. Applicant’s parents and parents-in-law know that he is applying for a U.S.
security clearance for his job.
 Applicant and his spouse are active in their Christian church in the U.S. Applicant
volunteers as a parent helper with the children during church services. All his and his
spouse’s financial assets are in the U.S. They own a condominium and two cars and
have 401(k), checking and savings accounts, and stock assets in the U.S. Both Chinese
and English are spoken in their home. Applicant’s spouse is employed part-time as a
business administrator for a local company that sells flow meters.  She has a bachelor’s
degree in psychology from a private college in the U.S. Applicant has no plan to visit the
PRC.
Applicant designs monolithic microwave integrated circuits for his employer. His
work performance has exceeded his employer’s expectations. Applicant’s direct
supervisor has observed Applicant to be very conscientious in his handling of sensitive
and proprietary information. Applicant recently completed secure facility training offered
by his employer.
*     *     *
Following review of official publications of the U.S. government that address the
economic, political, and intelligence activities of the PRC, I take administrative notice of
the following facts:
China is a large and economically powerful country, with a population of more
than a billion people and an economy growing at about 10% per year. China has an
authoritarian government dominated by the Chinese Communist Party. The National
People’s Congress, the PRC’s legislative body, is the highest organ of state power. With
China firmly committed to economic reform and greater openness, the influence of
people and organizations outside the formal party structure has increased, but in all
important government, economic, and cultural institutions in China, the Chinese
Communist Party ensures that party and state policy guidance is followed. During 2006,
the PRC government’s human rights record remained poor, with a trend toward
increased harassment, detention, and imprisonment by government and security
authorities of those perceived as threatening to government authority. Foreign visitors in
the PRC may be placed under surveillance by security personnel, their hotel rooms,
telephones, and facsimile machines monitored, and their personal possessions,
including computers, searched without their knowledge or consent.
While Taiwan has complicated the relationship and been a source of discord
between the U.S. and PRC at times, the U.S. formally recognizes the government of the
PRC as the sole legal government of China. Since the Tiananmen crackdown in June
1989, the PRC has sought a higher international profile through its seat as a permanent
member of the United Nations, and through diplomatic relations with other countries.
The U.S. and PRC have a history of cooperation on scientific, environmental and more
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recently counterterrorism and aspects of law enforcement (computer crime, intellectual
property rights, human smuggling, corruption). China is an important trading partner of
the U.S. Its trade surplus with the U.S. was $232.6 billion in 2006, and the U.S. is the
second largest foreign investor in China.
The PRC possesses large military forces (strategic nuclear forces, army, navy
and air force), which are in the process of transformation into a smaller, more mobile,
high tech military. The PRC acquired some advanced weapon systems from Russia. In
an effort to acquire advanced technology, the PRC has aggressively targeted sensitive
and protected U.S. economic and militarily critical information. The PRC blends
intelligence and non-intelligence assets, relying on covert espionage activity by
personnel from government ministries, commissions, institutes, and military industries
independent of the PRC intelligence services, and by targeting ethnic Chinese who
have access to sensitive information.
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 overarching
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,
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. 
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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
considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associated with a
risk of terrorism.
Applicant has several close family members (parents, brother, and parents-in-law) who
are citizens of the PRC, a country known to engage in sensitive data collection in the
U.S. Although his parents enjoy the protections of U.S. permanent residency, they are
bound to comply with the obligations of their PRC citizenship. Applicant’s brother and in-
laws make their permanent homes in the PRC. The security concerns underlying AG ¶
7(a) (contact with a foreign family member, business or professional associate, friend,
or other person who is a citizen of or resident in a foreign country if that contact creates
a heightened risk of foreign exploitation, inducement, manipulation, pressure, or
coercion) are implicated. Moreover, the risk of undue foreign influence through his
spouse and her relationship to her parents requires consideration of disqualifying
condition 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).
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The Government also urges security concerns over Applicant’s brother’s present
and his in-laws’ former government employments in the PRC. Nothing about his
brother’s duties as a clerk in a local government tourism office suggests military,
security, or intelligence activities. Although his parents-in-law worked for the PRC’s
nuclear agency, Applicant credibly testified that their duties were nontechnical, at least
during the ten years preceding their retirements in 2000. However, it is highly probable
that his brother is in contact with other government officials because of his work, and his
brother depends on the PRC government for his livelihood. His parents-in-law sustain
themselves at least in part on their government pensions. It is difficult to discount the
risks of Applicant’s brother or in-laws being exploited by the PRC to enlist Applicant’s
cooperation in furnishing sensitive data. Applicant has not broken his contacts with his
brother, even if he calls him only once or twice a year. Moreover, Applicant is bound by
affection and financial obligation to his parents, who have a close enough relationship to
their younger son to telephone him regularly and to rely on him to handle their
apartment in the PRC. Applicant’s in-laws are staying with him and his spouse for six
months, from September 2007 to March 2008. Although his spouse was raised by her
grandparents,  she has a bond with her mother, who is on her second extended stay in
Applicant’s home.
Applicant’s travel to the PRC in May 2002 was primarily to see his parents. His
travel is relevant as it confirms his affection for his parents, but there is no evidence that
Applicant engaged in any conduct while in the PRC that would warrant application of AG
¶ (7)(i) (conduct, especially while traveling outside the U.S., which may make the
individual vulnerable to exploitation, pressure, or coercion by a foreign person, group,
government, or country). Applicant’s trip to the PRC in 2002 does not raise current
security concerns where his parents now reside in the U.S. and he has no plan to visit
the PRC. 
Applicant bears a heavy burden of mitigation, given the history and current
political and security conditions extant in the PRC and Applicant’s relationships with
family members who have citizenship and/or residency ties to the PRC. The PRC has
an aggressive record of pursuing sensitive U.S. information, even targeting U.S. citizens
of Chinese ancestry to obtain cutting-edge technology. While the PRC continues to
maintain strong diplomatic interest with the U.S. and has been helpful in strategic efforts
to suppress nuclear threats in the region and terrorism internationally, it continues to
violate basic human rights of its citizens and to suppress activities perceived to threaten
Communist Party control. The risk of undue foreign influence is substantially lessened
with respect to his parents because of their legal permanent residency in the U.S. and
their intention to remain in the U.S. and sell their apartment in the PRC. However, I am
unable to apply AG ¶ 8(a) (the 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’s mother was
discriminated against because of her ethnicity in the past, and she intends to travel to
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the PRC to see her mother sometime in 2008. His brother and parents-in-law (albeit to a
lesser extent) depend on the PRC government for their incomes.
Security concerns could be overcome by deep and longstanding relationships
and loyalties in the U.S. (see AG ¶ 8(b) (there 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)). Although Applicant came to the U.S. in 1995, his
intention at that time was to earn his graduate education, work for a few years, and then
return to his native PRC. However, shortly thereafter, he met his spouse. Unlike
Applicant, she had been educated in the U.S. from high school, and intended to remain
here.  In 1997, he applied for legal permanent residency, and after his marriage in 1999,
decided to make his home in the U.S. Knowing the PRC does not recognize dual
citizenship, he became a U.S. citizen in 2005 and within a month had his U.S. passport.
While his parents were visiting him from the PRC, he sponsored their U.S. immigration,
and they became lawful permanent residents in July 2007. Applicant has also
developed ties within his community, particularly within his church where he volunteers
to help with the children. All of his financial assets, including a home, are in the U.S. His
work performance has exceeded his employer’s expectations, and he has
conscientiously handled sensitive information.
Yet, his demonstrated commitments to the U.S. and trustworthiness at work are
relatively recent and must be evaluated in the context of the geopolitical realities that
govern PRC-U.S. relations and the potential for exploitation of family members who are
resident citizens of the PRC. Applicant testified that his parents and parents-in-law are
aware that he is applying for a security clearance. Applicant has not told his brother, but
his parents have ongoing contact with their younger son, and it is not clear what he
knows about Applicant’s work. Based on the record before me, I am unable to conclude
with a reasonable degree of certainty that Applicant is unlikely to be placed in a position
of having to choose between the interests of a foreign government and the interests of
the U.S.
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(c), the ultimate determination of whether to grant eligibility for a security
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clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.       
Nothing in the record suggests that Applicant is other than a loyal U.S. citizen.
However, the salient issue in the security clearance determination is not in terms of
loyalty or allegiance, but rather what is clearly consistent with the national interest. See
Executive Order 10865, Section 7. Too much uncertainty exists to permit safe predictive
judgments about Applicant’s ability to recognize and withstand the risks of undue
influence attributable to his familial relationships in the PRC. When asked at his hearing
whether he considered his in-laws vulnerability at all heightened by the knowledge that
he is applying for a security clearance, Applicant responded that his in-laws no longer
have any connection to the PRC government. (Tr. 72) In its efforts to acquire sensitive
technology and information, the PRC employs a variety of techniques (overt and covert)
and personnel, including foreign visitors and commercial sector employees. While his in-
laws’ retirement may reduce the likelihood of foreign influence, it does not completely
eliminate the risk.
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: For 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.
________________________
ELIZABETH M. MATCHINSKI
Administrative Judge