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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------- )       ISCR Case No. 09-07242
)
Applicant for Security Clearance )
Appearances
For Government: Marc G. Laverdiere, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
On June 23, 2010, the Defense Office of Hearings and Appeals (DOHA) issued
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 (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance
Review Program (January 2, 1992), as amended (Directive); and the adjudicative
guidelines (AG) effective within the DOD on September 1, 2006. 
In an undated response to the SOR received by DOHA on August 26, 2010,
Applicant admitted the seven allegations raised under Guideline B and requested a
hearing before an administrative judge. The case was assigned to me on September
23, 2010. Department Counsel and Applicant agreed to a October 21, 2010, hearing
date. A Notice of Hearing was issued by DOHA on September 30, 2010, setting the
hearing for that date. On October 19, 2010, Applicant requested a postponement of the
proceedings due to the illness of a witness. By mutual agreement of the parties, the
hearing was postponed to November 2, 2010. An Amended Notice of Hearing was
issued on October 20, 2010, changing the hearing date to November 2, 2010.
 Originally accepted as Ex. A (Tr. 41), that document was reorganized as Ex. N to conform with Applicant’s1
lettering system on the remainder of his documents. It is a transcription of Applicant’s prepared opening
statement.
 Tr. 9-10.2
2
The hearing took place as scheduled. Department Counsel submitted four
exhibits (Ex.) which were accepted into the record as Exs. 1-4 without objection. I also
accepted Department Counsel’s memorandum requesting administrative notice of
certain facts related to the People’s Republic of China (China). It was accepted without
objection as HE-1. Applicant gave testimony, introduced two witnesses, and offered 13
documents, which were accepted into the record without objection as Exs. A-N.  The1
transcript (Tr.) was received on November 10, 2010. Without objection, Department
Counsel forwarded one additional document submitted by Applicant on November 23,
2010. It was received on December 1, 2010, and accepted as Ex. O. The record was
then closed. Based upon a review of the case file, exhibits, and testimony, security
clearance is denied.
Administrative Notice
The Government requested administrative notice of certain facts and materials
regarding China. Its submission (HE-1) included 15 official documents to support the
Government’s summation about China (HE-1 i-xv). Applicant did not object to my
consideration of those exhibits.  The facts administratively noticed are limited to matters2
of general knowledge and matters not subject to reasonable dispute. The facts
administratively noticed are as follows: 
China is a large and economically powerful country, with a population of over a
billion people and an economy growing at about 10% per year. It has an authoritarian
government dominated by the Chinese Communist Party. China has a poor record with
respect to human rights, suppressed political dissent, and engages in arbitrary arrests
and detentions, forced confessions, torture, and mistreatment of prisoners. 
China is one of the most aggressive countries in the world for seeking sensitive
and protected U.S. technology and economic intelligence. It targets the United States
with active intelligence gathering programs, both legal and illegal. As a result, it is a
growing threat to U.S. national security. In China, authorities routinely monitor
telephone conversations, facsimile transmissions, e-mail, text messaging, and internet
communications. Authorities open and censor mail. Its security services have entered
personal residences and offices to gain access to computers, telephones, and fax
machines. Hotel guestrooms are sometimes bugged and searched for sensitive or
proprietary materials. There are several reports of recent cases involving actual or
attempted espionage and the illegal export of information to China.
 Tr. 18-22.3
 Tr. 21, 23. Applicant stated, “my father always said his life was ruined by the Chinese government. He don’t4
[sic] want my life to be ruined in the same way.” Tr. 23.
 Tr. 24.5
 Tr. 46-52.6
 Tr. 52.7
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Findings of Fact
In his answer to the SOR, Applicant admitted the seven factual allegations at
issue (SOR allegations ¶¶ 1.a-1.g). Specifically, he admitted that his spouse and son are
citizens of China and residents of the United States (¶¶ 1.a and 1b, respectively); that a
cousin (¶ 1.b) and his father are a residents and citizens of China (¶1.c); that he
maintains weekly contact with his father in China (¶ 1.d); that his brother and mother-in-
law are residents and citizens of China (¶¶ 1.e and 1.f, respectively); and that he
traveled to China in 2005 (¶ 1.g). His admissions are incorporated herein.  
Applicant is a 49-year-old program analyst who has worked for the same defense
contractor since 2009. He was born and raised in China, where his family faced
considerable deprivation and Applicant endured a difficult childhood in a remote region.3
Applicant’s father secretly learned English. He encouraged Applicant to do the same
with the hope of some day immigrating to the United States.  Applicant eventually4
earned a bachelor’s degree in the early 1980s. In 1987, he married a highly educated
professional woman. They had a child a few years later. Applicant and his family moved
to the United States in 1998. In the United States, Applicant completed a master’s
degree in 2000. 
In 2007, Applicant applied for U.S. citizenship. In 2008, he became a naturalized
U.S. citizen and immediately voted in an election to feel “what democracy means.”5
When Applicant’s wife applied for a green card in 2007, she falsely claimed that she had
a patent in China, thinking it would make her application stronger. She later admitted
that her statement was untrue. It is Applicant’s understanding that this has made her
ineligible to apply for U.S. citizenship, although she maintains a resident alien card.6
Consequently, Applicant’s wife is a resident of the United States, but remains a citizen of
China. Since coming to the United States, she has visited her family in China three
times, in 2000, 2005, and 2006.7
Concerned that his wife’s falsity concerning the patent, or any other actions
attributable to her, might jeopardize his career, Applicant and his wife have executed a
notarized agreement. Under the terms of that document, Applicant will divorce her if “she
 Tr. 74; Ex. H (Agreement, dated Aug. 24, 2010).8
 Tr. 56-57.9
 Tr. 28.10
 Tr. 30.11
 Tr. 32.12
 Tr. 31. Applicant noted that he thinks his father “totally understands. Because my father is the same as me;13
we always think in the child’s interest. . . . My father is very proud of my being a U.S. citizen.” Tr. 32.
Tr. 33, 62.14
 Tr. 62-63.15
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were to do anything adverse to the U.S. government or if she were to leave the [United
States].”8
Applicant’s son is a an upperclassman at a prestigious U.S. college. He maintains
a 3.9 grade point average in a difficult major, and recently received a near-perfect score
on the Law School Aptitude Test (LSAT). Because of grants and scholarships, he will
graduate with little to no debt. He became eligible to apply for U.S. citizenship in 2010.9
He has not yet applied for U.S. citizenship because the application requires one to list a
place of residence of at least three months, and his quarterly semester calendar
confounds his ability to stay at one address for more than three months.   He intends to10
apply for U.S. citizenship after he graduates next year. The son has not been back to
China since the family arrived in the United States. He has no desire to return. He is
poised to have “a bright future here in the United States.”11
Applicant’s father is a resident and citizen of China. He is now retired. He now
teaches English to children, a vocation he enjoys and which pays more than his Chinese
government pension, which only pays about $200 a month.  Applicant used to maintain12
regular contact with his father by telephone. When advised that contact with his father in
China posed a security risk, Applicant ceased all contact with his father in September
2010, an action he accepts as “reasonable.”   In his late 70s, Applicant’s father is in13
failing health and unable to travel. He does not know what Applicant does for a living.
Until recently, Applicant’s older brother, a resident and citizen of China, works in the
private sector. He used to live with his father, but has since moved elsewhere. The
father now lives alone. Applicant has not had contact with his older brother in over two
years.  The two have little in common and are not close.14 15
Applicant traveled to China in 2005. At the time, both his father and his late
mother were in the hospital. His father was hospitalized with a broken leg, while his
 Tr. 34.16
 Tr. 34-35.17
 Tr. 64-65.18
 Tr. 78-79.19
 Tr. 88.20
 Tr. 37. 21
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mother was suffering from cancer.  During his nine-day stay in China, Applicant stayed16
at the hospital with his parents. There, his father, who “thinks the Chinese government
ruined his whole life” told Applicant to “never come back, [to] just stay in the United
States to be a good United States citizen.”17
Also a resident and citizen of China is Applicant’s mother-in-law, a retired private
sector worker. Applicant’s wife calls her mother annually, usually on the Chinese New
Year.  Applicant may also phone some of her three siblings, who are residents and18
citizens of China, at the same time.
Applicant is a highly valued employee at work. He has received excellent
appraisals.  A co-worker testified that Applicant is extremely reliable, a hard worker, and
a great asset to the company.  His supervisor testified that Applicant is “absolutely19
outstanding, exceptional . . . number one. . . . He is really super important because we
really depend on him to work the projects one by one.”  She has been impressed with20
his reliability and trustworthiness. 
Applicant has an annual income of about $175,000. He has paid off the mortgage
on the house they bought in 2003, which presently is valued at about $330,000. Their
son will not be a dependant after he graduates from college.  Applicant attends a local21
church and is an avid listener of talk radio. He is devoted to his job and has contributed
164 hours of voluntary service to various efforts. He donates to various charities.
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the AG. In addition to brief introductory explanations
for each guideline, the adjudicative guidelines list potentially disqualifying conditions and
mitigating conditions, which are required 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 commonsense decision. Under AG
¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).22
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).23
 Id.24
 Id.25
 Executive Order 10865 § 7.26
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“whole-person concept.” All available, reliable information about the person, past and
present, favorable and unfavorable, must be and were considered 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 my decision, I have
drawn only those conclusions that are reasonable, logical, and based on the evidence
submitted.
The Government must present evidence to establish controverted facts alleged in
the SOR. An 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 burden of proof is something less than a22
preponderance of evidence. The ultimate burden of persuasion is on the applicant.  23
 
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
an applicant may deliberately or inadvertently fail to protect or safeguard classified
information. Such decisions entail a certain degree of legally permissible extrapolation
about 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). “The clearly consistent standard
indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access24
to sensitive information must be resolved in favor of protecting such sensitive
information.   The decision to deny an individual a security clearance is not necessarily25
a determination as to the loyalty of an applicant.  It is merely an indication that the26
applicant has not met the strict guidelines the President and the Secretary of Defense
have established for issuing a clearance.
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Based upon consideration of the evidence, I find Guideline B (Foreign Influence)
to be the most pertinent to the case. Conditions pertaining to this AG that could raise a
security concern and may be disqualifying, as well as those which would mitigate such
concerns, are discussed below.
Analysis
Guideline B – Foreign Influence
The concern under Guideline B is that 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. Consideration should be given to 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 U.S. citizens to
obtain protected information or is associated with a risk of terrorism. Conditions
pertaining to this adjudicative guideline that could raise a security concern and may be
disqualifying, as well as those which would mitigate security concerns, are discussed in
the conclusions below.
The country at issue is China. It targets the United States with active intelligence
gathering programs, both legal and illegal, and poses a considerable threat to U.S.
national security.  Consequently, given the heightened risk associated with that country,
a high degree of scrutiny is warranted in my assessment below.
Applicant’s foreign contacts are his father, brother, mother-in-law, and other
extended relations who are residents and citizens of China, one of the most aggressive
countries conducting industrial espionage today. Although they reside in the United
States, Applicant’s wife and son remain citizens of China, and Applicant’s wife has
repeatedly traveled to China, where she could have been vulnerable to Chinese
governmental influences. Such facts are sufficient to give rise to Foreign Influence
Disqualifying Conditions 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 exploitation, inducement,
manipulation, pressure, or coercion) and AG ¶ 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). With
disqualifying conditions thus raised, the burden shifts to Applicant to mitigate security
concerns.
Applicant’s wife has consented to not return to China under penalty of divorce,
and his son has no interest in visiting his former home. Applicant is not close to his older
brother and the two do not maintain a relationship. However, Applicant’s father remains
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a citizen and resident of China. The two share an understandable fondness for each
other. Applicant was inspired to seek out a life in the United States at his father’s
suggestion. Although Applicant recently stopped contact with his father, the cessation of
their telephonic contact does not end their bond. Applicant’s father is nearing 80, lives
alone, and receives a Chinese government pension. Consequently, he is in a vulnerable
position. In addition, Applicant’s wife maintains telephonic contact with her mother and
siblings in China. In these cases, foreign contacts maintained by a spouse can be
attributable to an applicant. Applicant’s mother-in-law may be retired from the private
sector, but there is insufficient information to assess her or her vulnerability. Given these
facts in the context of the country at issue, Foreign Influence Mitigating Condition 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.) applies with regard to Applicant’s wife, son, and brother, but not his
father and mother-in-law.
As noted, Applicant’s wife and son live in the United States. It is highly unlikely
either will return to China. In addition, Applicant has ceased communication with his
father. He has not had contact with his older brother in over two years. His wife,
however, continues to maintain contact with Applicant’s mother-in-law and other
relations. Insufficient evidence was introduced to gauge how close Applicant and his
wife are to these relations. Therefore, AG ¶ 8(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) applies to Applicant’s father and brother, but does
not apply to Applicant’s mother-in-law. It is inapplicable in the context of Applicant’s wife
and son.
Applicant has fulfilled his dream, and that of his father, by residing in and being a
citizen of the United States. He is intensely proud of this achievement and is
undoubtedly a loyal American. Although his wife and son are citizens of China, they
have negligible contact with relations in that country. There is little information about
Applicant’s mother-in-law, who is a citizen and resident of China. However, although he
does not maintain a relationship with his brother and he has ceased contact with his
father in China, Applicant continues to demonstrate strong and natural feelings for his
father.
Applicant’s father has had a life-long antipathy for the Chinese government and
has long motivated Applicant to seek out a new life in the United States. When Applicant
visited him in 2005, his father told him not to return to China. Neither Applicant nor his
father had difficulty severing ties in 2010, thinking it was the best thing for Applicant’s
career. Applicant’s testimony implies that there is a tacit agreement between father and
son to do whatever it takes to not let China jeopardize the son’s future. Because the
country at issue is China, however, this case requires heightened scrutiny. Applicant,
understandably, retains feelings for his father. His father is elderly, lives alone, and is
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partly dependent on a Chinese government pension. Such facts leave both father and
son malleable. Under these facts, AG ¶ 8(b) (there is no conflict of interest, either
because the individual’s sense of loyalty to 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) applies to Applicant’s wife, son, and
brother, but does not apply to his father and mother-in-law. 
Applicant is clearly a loyal U.S. citizen. While it seems reasonable to conclude
that neither his wife, son, or brother represent genuine security concerns, his father and,
to a lesser extent, his mother-in-law sustain foreign influence security concerns.
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). 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. 
I considered the potentially disqualifying and mitigating conditions in light of all the
facts and circumstances surrounding this case, as well as the “whole-person” factors.
Applicant is a highly credible and mature man who has fulfilled his dream by building a
successful life in the United States. His wife is a well-educated individual. His son is a
highly successful student and an academic with much promise.  Applicant is financially
well-situated. He is a highly valued employee. At his father’s urging, he has not
permitted any obstacle to interrupt his pursuit of a better life in the United States. To this
end, he has ceased communication with his father and signed an agreement to divorce
his wife if her actions jeopardize his career. 
While Applicant’s wife, son, brother, and mother-in-law pose some potential
degree of security concern, it is mainly Applicant’s father who sustains foreign influence
security concerns. Although it is clear that Applicant and his father are in accord in their
belief that nothing should jeopardize Applicant’s career, Applicant’s father remains
vulnerable to coercion and their recent resolve to cease contact has been untested by
time. His age, living conditions, and partial dependence on a government pension make
him vulnerable to involuntary influence. In turn, Applicant retains understandable
feelings and concerns for his father. While their attempts to partition themselves from
influence might be sufficient in some circumstances, the country at issue is China. The
administrative notice materials and testimony are replete with information about the
aggressiveness of that nation in collecting sensitive information and the threat it poses to
the United States. In light of these facts, foreign influence security concerns are
unmitigated. Clearance is denied.
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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
Subparagraphs 1.a-1.c: Against Applicant
Subparagraphs 1.d-1.e: For Applicant
Subparagraph 1.f: Against Applicant
Subparagraph 1.g: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance. Clearance denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge