DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 ------------------------ )  ISCR Case No. 08-00732 
 SSN: ---------------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Pamela C. Benson, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HOWE, Philip S., Administrative Judge: 
 
On October 9, 2004, Applicant submitted his Security Clearance Application (SF 
86). On May 16, 2008, the Defense Office of Hearings and Appeals (DOHA) issued 
Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B 
(Foreign Influence). 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.  
  
 Applicant acknowledged receipt of the SOR on May 19, 2008. He answered the 
SOR in writing on May 19, 2008, and requested a hearing before an administrative 
judge. DOHA received the request on May 21, 2008. Department Counsel was 
prepared to proceed on June 10, 2008, and I received the case assignment on August 
27, 2008.  DOHA issued a Notice of Hearing on October 20, 2008, and I convened the 
hearing as scheduled on November 7, 2008. The Government offered Exhibits 1 
 
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through 8, which were received without objection. Applicant testified and submitted 
Exhibit A, without objection. DOHA received the transcript of the hearing (Tr.) on 
November 21, 2008.  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 
 
Department Counsel submitted a formal request that I take administrative notice 
of certain facts relating to the People’s Republic of China (PRC). (Tr. at 13-15.) The 
request and the attached documents were admitted into evidence and were included in 
the record as Hearing Exhibits 3 to 8.  The facts administratively noticed are set out in 
the Findings of Fact, below.  
 
Findings of Fact 
 
 In his Answer to the SOR, dated June 25, 2007, Applicant admitted the factual 
allegations in ¶¶1.b, to 1.j of the SOR, with explanations. He denied the factual 
allegations in ¶ 1.a of the SOR. He also provided additional information to support his 
request for eligibility for a security clearance.  
 
 Applicant is 47 years old, married, and works for a defense contractor in the 
computer industry.  He came to the United States in 1987, and became a United States 
citizen in July 1999.  His wife was born in the PRC, married Applicant in the PRC in 
1986, and became a United States citizen in 2006.  Applicant came to the United States 
in January 1987 to pursue a doctorate program in electronic engineering.  He withdrew 
from the program in 1988 because his English was poor and he could not afford to pay 
the tuition for the program.  He received his undergraduate and master’s degrees in the 
PRC in 1983 and 1987, respectively.  Between 1998 and 2007, Applicant took pleasure 
and business trips to Japan (six times), and to the PRC (eight times).  He worked for an 
electronics company when he took the business trips.  He traveled to the PRC to visit 
his mother on any pleasure trip there. His last trip there in 2007 was for two weeks.  
After he became a U.S. citizen, Applicant used his U.S. passport for these trips.  He 
keeps his expired PRC passport as a souvenir.  He cut the corner of the passport to 
show it is no longer effective. He wants a security clearance to increase his job security.  
He had an interim security clearance for about three years, with no violations, until the 
issuance of the SOR terminated it. (Tr. 19-26, 29, 30, 33, 34, 39, 52, 71, 81; Exhibits 1, 
2 and A) 
 
 Applicant’s mother was the Director of the China Central Television station in 
Beijing, PRC.  She worked there from 1985 to 1991 when she retired.  Later, she was 
the manager of the Central Television Tower in Beijing from 1994 to 1998, when she 
retired again.  She is a member of the PRC Communist Party.  She is 77 years old.  His 
mother helped him obtain his first engineer’s job in the United States in 1992 because 
she knew someone at the computer company.  Applicant worked there for 12 years 
 
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before being laid off in 2004.  He telephones his mother weekly.  His mother knows he 
applied for a security clearance.  Applicant told the Government investigator that his 
mother and father were on an FBI data base file. (Tr. 31, 39-41, 45, 58, 83; Exhibits 1 
and 2) 
 
  Applicant’s father is deceased, having died in 2003.  When alive, he was 
employed by the Chinese Academy Lab, specializing in sonar development.  He retired 
as the Director of the Lab, overseeing about 2000 staff members.  The PRC Navy used 
his lab for research and development of sonar equipment.  He was a member of the 
PRC Communist Party.  Applicant traveled to the PRC in 2003 for his father’s funeral. 
(Tr. 42, 43, 45, 58, 71; Exhibits 1, 2) 
 
 Applicant’s brother is a Senior Colonel in the PRC People’s Liberation Army 
(PLA).  He joined it in 1975 and remains an officer in the PLA.  He is involved in the 
international inspection of chemical warfare production and land mine issues.  Since 
1987, Applicant has seen his brother three times in the United States when he traveled 
here for conferences.  Applicant visited him on his trips to the PRC. He emails his 
brother every couple of months.  He telephones him annually. His brother knows he has 
applied for a security clearance.  His brother’s wife lives in the PRC. (Tr. 44-49, 70, 83; 
Exhibits 1 and 2) 
 
 Applicant’s mother-in-law is a citizen of and resident of the PRC.  His wife calls 
her twice a year.  She is 87 years old and lives in Beijing.   Her husband died in 1996.  
He was a roadway engineer.  Applicant sends his mother-in-law about $1,000 annually, 
and has for the past 10 years to support her. (Tr. 34-37; Exhibits 1 and 2) 
 
 Applicant’s half-brother-in-law and half-sister-in-law are citizens of the PRC, and 
live there.  They worked for the PRC national railway system.  Applicant’s wife has little 
contact with her siblings because they have a different mother and she had little contact 
with them growing up. (Tr. 49-51; Exhibits 1 and 2) 
 
 Applicant has two aunts and one uncle who are citizens of the PRC, and live 
there.  He also has five adult cousins who are citizens of the PRC and live in the PRC. 
(Tr. 49-51; Exhibits 1 and 2) 
 
 Applicant was a member of the Communist Youth League from 1977 to 1986.  
Applicant joined voluntarily, wanting to be a good Communist and a model PRC citizen.  
He joined at age 15 (in 1976) and remained a member through college until 1987 when 
he became 26 years old, the maximum age for this youth league. It was the same year 
he graduated with a master’s degree and came to the United States.  Applicant believed 
in the communist doctrines and programs when young, but as he grew older came to 
realize that the PRC government was not a perfect example of communism.  After 
college he began to question the entire idea of communism.  He claims he is not a 
communist today. (Tr. 27, 58-70; Exhibits 1 and 2) 
 
 
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 Applicant owns his own home in the United States.  He has no property in the 
PRC or outside the United States.  He has bank accounts in the United States and 
owns mutual funds for his investment portfolio. (Tr. 56, 57) 
 
I take administrative notice of the following facts concerning the PRC.  The PRC 
is a one-party Communist totalitarian state.  It has an economy growing at 10% 
annually, and expanding military forces, including its naval forces.  It engages in 
industrial and military espionage on a regular basis against the United States and other 
countries.  The United States and the PRC have been rivals since 1948, when the 
Communists took control of mainland China, and the Nationalist government fled to the 
island of Taiwan.  Taiwan remains an issue of contention between the two countries.  
The U.S. - China Economic and Security Review Commission=s 2006 report to the U.S. 
Congress found the PRC has a large and aggressive intelligence gathering operation in 
the United States, particularly in the scientific and military fields.  The PRC engages 
regularly in military, economic, and industrial espionage, including stealing nuclear 
weapons technology, missile design information, and commercial technology. The PRC 
also obtains commercial information through the use of front companies, buying dual-
use technologies, and the direct collection of technology by non-intelligence agencies 
and individuals. The PLA is integrated into the civil industrial base in the PRC, known as 
the “digital triangle.”  The 2007 Report to Congress of the U.S.-China Economic and 
Security Review Commission (Exhibit 5 at page 102) states the linkages between the 
military and Chinese commercial information technology companies and the R&D 
institute are longstanding, “as telecommunications and information technology in China 
were originally under military auspices and the commercial relationships with state and 
military research institutes remain important.”  Additionally, the U.S. State Department 
reported the PRC has a poor human rights record, including but not limited to, denial of 
free speech and press, fair and open trials, and other basic rights recognized by the 
international community.  It also suppresses political dissent, using arbitrary arrests, 
forced confessions, and mistreatment of prisoners as part of its operational methods to 
maintain control of its population. (Exhibits 3 to 8) 
 
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, and 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 
 
AG & 6 expresses the security concern pertaining to foreign influence:  
 
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. interest, or is vulnerable to pressure or coercion by 
any foreign interest. Adjudication under this Guideline can and should 
consider the identity of the foreign county 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 
 
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States citizens to obtain protected information and/or is associated with a 
risk of terrorism. 
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 7. Two are potentially applicable in this case: 
 
(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;1 and 
 
(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. 
 
 Applicant’s mother, brother, aunts and uncles, wife’s relatives, and his cousins 
are citizens and residents of the PRC. His mother was involved in the television industry 
and the Communist Party controlled news organization at a high level of management.  
She is a member of the Chinese Communist Party.  His brother is a senior colonel in the 
PRC PLA, and is a member of the Chinese Communist Party. He pays his mother-in-
law $1,000 annually in support payments, and has for a decade.  He contacts his 
mother weekly and his brother several times a year by various several communications 
methods.  His mother and brother are or were involved in the organizations in the PRC 
which are closely controlled by the Communist Party and its government, according to 
the 2007 Report to the Congress cited in the administrative notice. His parents were on 
an FBI database list at some point in time, according to Applicant, indicating they were 
of some concern to the FBI. This situation creates a heightened risk of foreign 
exploitation, inducement, manipulation, pressure, or coercion. It also creates a potential 
conflict of interest. AG ¶ 7(a) and (b) have been raised by the evidence. 
 
 The Government produced substantial evidence of those two disqualifying 
conditions, and the burden shifted to Applicant to produce evidence and prove 
mitigation.  Two conditions that could mitigate the disqualifications are provided 
under 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 
1 The mere possession of close family ties with a person in a foreign country is not, as a matter of law, 
disqualifying under Guideline B. However, if only one relative lives in a foreign country and an applicant 
has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence 
and could potentially result in the compromise of classified information. See ISCR Case No. 03-02382 at 
5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). 
 
 
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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; and 
 
(c) 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; 
 
Applicant did not establish the application of AG ¶ 8(b) and 8(c).  Based on his 
relationship with his mother and brother, which is not casual or infrequent, and the 
nature of their work experience, membership in the PRC Communist Party, Applicant 
showed insufficient evidence and persuasive presentation that his loyalty to the U.S. is 
paramount over his close connections to his mother and brother. Instead, there is a risk 
of exploitation or influence because of these familial connections. Therefore, he cannot 
be expected to resolve any conflict of interest in favor of the U.S. interests, especially 
since he appears to maintain a strong sense of loyalty and obligation to his mother 
above all other interests except his own. He came to the United States for his own 
purposes, education and to make money, and not out of a sense of love or commitment 
to the United States and its democratic form of government and individual liberties.  He 
wants a security clearance to increase his job security.  He did not flee the PRC to 
escape persecution, but was a member of a family which were members of the ruling 
Communist Party, and had high-level positions in the communications and military 
establishments.  
 
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) the 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 clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole person concept.        
 
The Appeal Board requires the whole person analysis address “evidence of an 
applicant’s personal loyalties; the nature and extent of an applicant’s family’s ties to the 
U.S. relative to his [or her] ties to a foreign country; his or her ties social ties within the 
 
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U.S.; and many others raised by the facts of a given case.” ISCR Case No. 04-00540 at 
7 (App. Bd. Jan. 5, 2007).   
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Five circumstances weigh heavily 
against Applicant in the whole person analysis.  First, he has close contacts with his 
mother, a confirmed member of the Communist party. Second, he maintains contact 
with his brother, the PLA Senior Colonel who is a committed Communist. Third, he was 
a member of the PRC Communist Party, or its Youth League, until age 26, when he 
claims he turned away from communist beliefs and toward a desire for economic and 
political freedom.  He continued to assert his loyalty to that party into adulthood. His 
discussion of his progressive movement away from a Communist philosophy to a 
capitalist perspective was not persuasive, especially when he espoused the idea that 
the Communist ideal is good, but the execution of it in China was imperfect.  In his case, 
he seemed more motivated by personal interests than any commitment to the United 
States and its democratic ideals.  He was interested in earning more money and getting 
more education than he could in the PRC, so he came to the United States. His 
personal selfish needs predominated.  He wants a security clearance to increase his job 
security in private industry. Fourth, throughout the hearing, I did not hear him express a 
stronger sense of dedication or gratitude to the United States, than to a desire for his 
personal economic success and an underlying loyalty to his two family members and his 
wife.  Here, Applicant’s close connections to his family in the PRC and his personal 
motivations for a security clearance, as a tool to guarantee his job security in the future, 
are countervailing persuasive issues which weigh against Applicant.  Fifth, he maintains 
some contact with his mother-in-law and sends her $1,000 annually in support money. 
In his favor, Applicant held an interim security clearance without any indication 
that he breached security policies or procedures.   He held that clearance for about 
three years.  It does not counterbalance the security concerns stated in the previous 
paragraph.   
 
Overall, the record evidence leaves me with questions or doubts as to Applicant’s 
eligibility and suitability for a security clearance. For all these reasons, I conclude 
Applicant did not mitigate the security concerns arising from foreign influence. 
 
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:   For Applicant 
 
  Subparagraph 1.b. to 1.j:  Against Applicant 
 
      
 
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Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national security interests to grant Applicant eligibility for a 
security clearance.  Eligibility for access to classified information is denied. 
 
 
                                                     
_________________ 
PHILIP S. HOWE 
Administrative Judge