DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------ )       ISCR Case No. 07-01474
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Pro Se
 May 30, 2008
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Decision
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TESTAN, Joseph, Administrative Judge:
On October 9, 2007, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) to applicant detailing the security concerns under
Guidelines B and C. The action was taken under Executive Order 10865, Safeguarding
Classified Information Within Industry (February 20, 1960), 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. 
 
On October 23, 2007, applicant answered the SOR in writing, and requested an
Administrative Determination by an Administrative Judge (AJ). Department Counsel
issued a File of Relevant Material (FORM) on November 26, 2007. Applicant submitted
a response to the FORM on January 29, 2008. The case was assigned to me on March
4, 2008. Based upon a review of the case file, pleadings, and exhibits, eligibility for
access to classified information is denied.
Exhibits 4 and 5 indicate applicant has a third sibling who is a citizen of Taiwan. Since the SOR did not
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mention this sibling, she will not be discussed.
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Findings of Fact
Applicant is a 48 year old employee of a defense contractor.
Applicant was born and raised in Taiwan. In the 1980s, after graduating from a
Taiwanese university, he served a little less than two years in the Taiwanese military.
This service was mandatory. At some point he moved to the United States to pursue an
advanced degree. After receiving a Ph.D. degree from an American university in 1992,
he returned to Taiwan. According to applicant, he returned to Taiwan because he could
not find a job in the United States. After working for about four years for the Taiwanese
government in a national defense related position, he returned to the United States. He
went to work for his current employer in 1996. He became a United States citizen in
May 2002, and was issued a United States passport in June 2002.
Applicant had a Taiwanese passport issued to him in 2001. When he traveled to
Taiwan in December 2002, he used both his United States and Taiwanese passports. A
January 22, 2008 letter from applicant’s employer’s Facility Security Officer (FSO)
indicates applicant surrendered the Taiwanese passport to him and it will be destroyed.
Applicant’s wife, to whom he has been married since 1991, is a native born
American. Their two minor children were born in the United States.
Applicant’s parents and two siblings  are citizens and residents of Taiwan. In1
addition to his above referenced 2002 trip to Taiwan, applicant visited Taiwan in 2000.
Both trips were for the purpose of visiting his parents and siblings. Applicant described
his relationships with these family members as “close,” notwithstanding the large
geographical distance between them. Applicant speaks with his parents about once a
month. He last saw them when they visited him in the United States in 2005. He speaks
with his siblings once every other month. 
In his response to the SOR, applicant stated the following:
By law, the Taiwan government is not allowed to force a U.S. citizen to
provide protected information. I don’t have any properties or money in
Taiwan. Taiwan’s human rights conditions have improved greatly in the
past years . . . . The Taiwan government will not and could not use
financial or my relatives in Taiwan to force me to provide any protected
information. If there is such a situation occurs, I will immediately report to
the U.S. official or my company officer, even though I don’t think this
situation would ever happen.
The Government provided 12 official United States publications with the FORM
that describe the political and intelligence activities of Taiwan. The Government
requested that these documents be admitted into evidence. I have admitted the
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documents into evidence, and I take administrative notice of the following facts found
therein:
Taiwan is a multi-party democracy with a population of about 23 million. It is one
of the most active collectors of sensitive United States information and technology.
Numerous individuals and companies have been subjected to civil penalties and or
prosecuted for illegally exporting, or attempting to illegally export, sensitive United
States technology to Taiwan. One United States official was recently convicted of
crimes related to his improper relationship with a Taiwanese intelligence official.
Policies
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.” (Department of
the Navy v. Egan, 484 U.S. 518,527 (1988).) In Executive Order 10865, Safeguarding
Classified Information Within Industry (February 20, 1960), the President set out
guidelines and procedures for safeguarding classified information within the executive
branch. The President authorized the Secretary of Defense or his designee to grant
applicants eligibility for access to classified information “only upon a finding that it is
clearly consistent with the national interest to do so.” (Exec. Ord. 10865, Section 2.)
To be eligible for a security clearance, an applicant must meet the security
guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel
security guidelines, as well as the disqualifying conditions and mitigating conditions
under each guideline.
 
Initially, the Government must present evidence to establish controverted facts in
the SOR that disqualify or may disqualify the applicant from being eligible for access to
classified information. (Directive, Paragraph E3.1.14.) Thereafter, the applicant is
responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts.
(Directive, Paragraph E3. 1.15.) An applicant “has the ultimate burden of demonstrating
that it is clearly consistent with the national interest to grant or continue his security
clearance.” (ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).) “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, Paragraph E2.2.2.)
A person granted access to classified information enters into a special
relationship with the government. The government must be able to repose a high
degree of trust and confidence in those individuals to whom it grants access to
classified information.
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Analysis
Guideline B, Foreign Influence
The security concern relating to the Foreign Influence guideline is set forth in
Paragraph 6 of the AG, and is as follows: 
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.
Paragraph 7 describes conditions that could raise a security concern and may be
disqualifying. Under Paragraph 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” may be disqualifying. Under Paragraph 7.b.,
“connections to a foreign person, group, government, or country that create a potential
conflict of interest between the individual's obligation to protect sensitive information or
technology and the individual's desire to help a foreign person, group, or country by
providing that information” may be disqualifying. Lastly, under Paragraph 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”
may be disqualifying.
Applicant has monthly contact with his parents, and less frequent but regular
contact with his siblings, all of whom are citizens and residents of Taiwan. In addition,
since moving back to the United States in 1996, he has visited Taiwan twice. Applicant’s
presence in Taiwan during these trips made him and his family members potentially
vulnerable to exploitation, pressure, or coercion by the Taiwanese government. These
facts raise concerns under all three disqualifying conditions.
Paragraph 8 sets forth conditions that could mitigate security concerns. Under
Paragraph 8.a., it is potentially mitigating if an applicant can demonstrate that “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.” Under Paragraph 8.b., it is potentially mitigating if an applicant can
demonstrate “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,
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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.” Lastly, under Paragraph 8.c., it is potentially mitigating if an applicant can
demonstrate that the “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.”
None of the foregoing mitigating conditions is applicable. Applicant*s contacts
with his parents and siblings in Taiwan are frequent and ongoing. His relationship with
them is “close,” raising the concern that these relationships create a risk for foreign
influence or exploitation. Applicant failed to provide sufficient credible evidence that it is
unlikely he would be placed in a position of having to choose between the interests of
Taiwan, one of the most active collectors of United States information and technology,
and the interests of the United States, or that he is not vulnerable to a conflict of
interest.
Guideline C, Foreign Preference
The security concern relating to the Foreign Preference guideline is set forth in
Paragraph 9 of the AG, and is as follows:
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.
Paragraph 10 describes conditions that could raise a security concern and may
be disqualifying. Under Paragraph 10 a.1., exercising any right or privilege of foreign
citizenship after becoming a United States citizen or through the foreign citizenship of a
family member, such as possession of a current foreign passport, may be disqualifying.
Applicant possessed and used a Taiwanese passport after becoming a United States
citizen. Accordingly, this disqualifying condition applies. Under Paragraph 10.c.,
“performing or attempting to perform duties, or otherwise acting, so as to serve the
interests of a foreign person, group, organization, or government in conflict with the
national security interest” may be disqualifying. And, under Paragraph 10.d, “any
statement or action that shows allegiance to a country other than the United States”
may be disqualifying. Applicant’s service in the Taiwanese military, and his return to
Taiwan to work for the Taiwanese government after completing his graduate studies in
the United States, requires application of these two disqualifying conditions.
Paragraph 11 describes potentially mitigating conditions. Under Paragraph 11.c.,
it may be mitigating if the “exercise of the rights, privileges, or obligations of foreign
citizenship occurred before the individual became a U.S. citizen or when the individual
was a minor.” Applicant’s military service and his employment with the Taiwanese
government occurred before he became a United States citizen. On the other hand, he
possessed and used a Taiwanese passport after he became a United States citizen.
This mitigating condition applies in part. Under Paragraph 11.e., it may be mitigating if
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the “[foreign] passport has been destroyed, surrendered to the cognizant security
authority, or otherwise invalidated.” Applicant surrendered his Taiwanese passport to
his employer’s FSO, who indicated it will be destroyed. Accordingly, this mitigating
condition is applicable.
“Whole Person” Analysis 
Under the whole person concept, the AJ must evaluate an applicant’s security
eligibility by considering the totality of the applicant’s conduct and all the circumstances.
An AJ should consider the nine adjudicative process factors listed at AG Paragraph 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 Paragraph 2.c., the ultimate
determination of whether to grant a security clearance must be an overall common
sense 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 Taiwan. After performing his mandatory service
in the Taiwanese military, he moved to the United States to continue his education,
eventually receiving a Ph.D. degree in 1992. He then moved back to Taiwan,
presumably with his wife, to work for the Taiwanese government in a defense-related
field. He moved back to the United States in 1996 and has worked for his current
employer since then. Applicant’s conduct since 1996 has, for the most part, indicated a
preference for the United States over Taiwan. Although there is some evidence that
indicates this preference is permanent (e.g., he obtained United States citizenship, his
wife and two children are United States citizens), he has made no definitive statement
concerning his plans for the future, and has offered little to no evidence indicating he
has any significant ties to his community or to any United States citizens other than his
wife and children. Given these facts, and the fact he has previously moved back to
Taiwan, it is reasonable to believe he may again move back to Taiwan. This is
particularly so in light of the fact his parents and siblings reside in Taiwan. Applicant’s
strong ties with these immediate family members, as evidenced by his voluntary
monthly contacts with his parents and his less frequent but regular contact with his
siblings, and his voluntary trips to Taiwan to visit them, are not only relevant to the issue
of the permanency of his preference for the United States, but also raise concerns
about his vulnerability. In view of Taiwan’s status as one of the most active collectors of
sensitive United States information and technology, these voluntary actions could leave
him vulnerable to coercion, exploitation, or pressure and could cause the future
compromise of classified information.
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I have carefully reviewed the administrative record, applicant*s submissions, and
the allegations in the SOR. I have weighed the disqualifying and mitigating conditions of
Guidelines B and C, and I have evaluated applicant*s conduct in light of the whole
person concept identified at Paragraph E2.2. of Enclosure 2 of the Directive. After doing
so, I conclude that applicant failed to rebut the Government’s case under Guidelines B
and C.
There is nothing in the record that suggests applicant is anything but a loyal
American citizen. Applicant*s allegiance, loyalty, and patriotism are not at issue in these
proceedings. Section 7 of Executive Order 10865 specifically provides that industrial
security clearance 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.” Therefore,
nothing in this decision should be construed to suggest I have based this decision, in
whole or in part, on any express or implied concern as to applicant*s allegiance, loyalty,
or patriotism.
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 C: AGAINST APPLICANT
Subparagraphs 1.a through 1c: Against Applicant
Paragraph 2, Guideline B: AGAINST APPLICANT
Subparagraphs 2.a through 2.d: 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.
                                              
_________________
JOSEPH TESTAN
Administrative Judge