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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------ )       ISCR Case No. 10-07340
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
June 21, 2011
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Decision
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MOGUL, Martin H., Administrative Judge:
On November 17, 2010, 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, 1960), as amended; Department of
Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review
Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines
(AG), effective after September 1, 2006. 
 
On December 10, 2010, Applicant replied to the SOR (RSOR) in writing, and she
requested a decision based on the written record. Department Counsel thereafter
requested a hearing before an Administrative Judge. I received the case assignment on
March 7, 2011. DOHA issued a notice of hearing on March 7, 2011, and I convened the
hearing as scheduled on March 31, 2011. The Government offered Exhibits 1 through 3,
which were received without objection. Applicant testified on her own behalf and
submitted Exhibits A and B, which were also admitted without objection. DOHA received
the transcript of the hearing (Tr) on April 8, 2011. I granted Applicant’s request to keep
the record open until April 15, 2011, to submit additional documents, but Applicant
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submitted a letter indicating that she would be offering no additional evidence. Based
upon a review of the pleadings, exhibits, and the testimony of Applicant, eligibility for
access to classified information is granted.
Request for Administrative Notice
Department Counsel requested that I take administrative notice of certain facts
relating to the People’s Republic of China (PRC) and Hong Kong.  The request and the
attached documents were admitted into evidence as Exhibit 3. Applicant also submitted
documents regarding Hong Kong in Exhibit A. The facts administratively noticed are set
out in the Findings of Fact, below. 
                                            Findings of Fact
In her RSOR, Applicant admitted all of the SOR allegations 1.a. through 1.g. The
admitted allegations are incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon
due consideration of that evidence, I make the following additional findings of fact: 
Applicant is 32 years old. She is unmarried, and she has no children. She is
employed by a defense contractor, and she seeks a DoD security clearance in
connection with her employment in the defense sector.
Applicant was born in Ontario, Canada in 1978. She lived there approximately
two or three years and then moved to the United States. Applicant became a United
States citizen in 1991. She has lived in the United States since she emigrated here,
except for 1995 and 1996, when she resided in Hong Kong while completing her high
school education. She lived in Hong Kong with her father during those years, but before
that, she had resided with her mother. (Tr at 45.) Applicant had been a Canadian citizen
and held a  Canadian passport, but she renounced her Canadian citizenship when she
became a United States citizen. In 2006, she received a Ph.D. degree from a United
States university. She also received a Master’s degree and a Bachelor’s degree from
United States universities. Applicant has only been employed in the United States. (Tr
at 36-37.) 
Applicant does not own any property in Hong Kong or the United States, but she
hopes to purchase a home in the United States. (Tr at 40.) In her current position,
Applicant earns $135,000 a year, and she has approximately $60,000 in her retirement
account. She estimated that her net assets in the United States were $200,000, and she
has no assets in Hong Kong. (Tr at 41-42.)
Applicant’s mother is a citizen and resident of the United States, and is a deputy
director at another Federal agency. She also has four aunts who live in the United
States. Applicant testified that she feels no loyalties to Canada or to Hong Kong. (Tr at
47.)
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Finally, Applicant has voted in United States election, but never in elections in
Hong Kong or Canada. (Tr at 42.) She has been active a several different organizations
in the United States in an effort to give back to the community, including volunteering for
homeless people in the city where she resides. (Tr at 43.)
(Guideline B - Foreign Influence) 
The SOR lists seven allegations, regarding Foreign Influence, under Adjudicative
Guideline B, which will be reviewed in the same order as they were listed on the SOR.
As stated above, Applicant has admitted all of the allegations listed:
 
1.a. Applicant's father is a United States citizen residing in Hong Kong. He was
born in Hong Kong, and he lived in the United States in the 1980s and 1990s for
approximately 20 years. He returned to Hong Kong in 1995, and has resided there since
then. Applicant testified that she is closer to her mother who resides in the United States
than to her father in Hong Kong. She communicates with her father every few months
by emails, and she speaks to her mother by telephone every week.  (Tr at 46-49.)
1.b. Applicant's father is employed as a professor at a Hong Kong university. She
did not know if it was a private or a public university. 
1.c. Applicant’s mother-in-law is a citizen and resident of Hong Kong. She
became Applicant’s father’s wife after he and Applicant’s mother divorced. She is a
homemaker. Applicant has very little contact with her, only when she is in Hong Kong.
(Tr at 49.) 
1.d. Applicant's half-brother is a United States citizen residing in Hong Kong, and
he is the son of Applicant’s father and step-mother. He is 10 years old. Applicant’s only
contact with him is when she is in Hong Kong. (Tr at 50.) 
1.e. Applicant’s aunt and uncle are citizens and residents of Hong Kong. Her
aunt is a school teacher, and her uncle works for an independent organization against
corruption. Applicant speaks to her aunt by telephone one or two times a year, and with
her uncle only when she is in Hong Kong. (Tr at 51.) 
1.f. Applicant’s cousin is a citizen and resident of Hong Kong. This is Applicant’s
uncle’s daughter, who is in her late 20s, and she is employed by an Ameerican
accounting firm in Hong Kong. 
1.g. Applicant has traveled to Hong Kong in at least 1997, 1998, 1999, 2001, and
2004. Applicant testified that she also went to Hong Kong in 2007 and 2011. All of her
trips were to visit her father and for sightseeing. and they each were around two weeks
in duration. (Tr at 34-35.) During all of her travels she has used her United States
passport, which is the only one she has maintained since she became a United States
citizen. (Tr at 39-40.)
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Mitigation
Applicant submitted seven extremely positive character letters. (Exhibit B.)  A
Ph.D. and chief engineer, who is a co-worker of Applicant, described her as “a
responsible, trustworthy, and intelligent person who makes leadership decisions. Our
organization has trusted her in the past and continues to trust her.” A systems
engineering  manager for her employer wrote that Applicant “has performed in the
utmost professional manner and has created a well respected reputation for producing
high quality work.”
Current Status of the PRC and Hong Kong
The PRC, the most populous country in the world, is economically powerful, and
is an important trading partner of the United States. It is run by the Communist Party
which controls all aspects of the PRC government. It has strong military forces, and has
its own foreign-policy. Although there has been some cooperation, there has been much
more conflict with the United States in the past. The PRC has an extremely large army,
a sophisticated defense establishment, and space capability. The PRC has launched
satellites, has ballistic missiles, has nuclear arms, and nuclear bombs. Its diplomatic
and military dispute with the Republic of China (Taiwan), foreshadows a possible
military conflict, which the United States opposes as a resolution of the conflict. The
PRC has an abysmal human rights record, which includes arbitrary killings; detention or
incarceration without notice in mental facilities; torture; arbitrary arrest, detention or
exile; no right to a public, fair trial; a politically controlled judiciary; lack of due process;
restrictions on free speech, on religious freedom, on freedom of travel, on freedom of
assembly; and no rights of privacy - family, home or correspondence. 
The PRC engages in espionage against the United States through an extensive
network of businesses, personnel, and specific programs designed to acquire advanced
U.S. military technology. One approach is to covertly conduct espionage by personnel
from government ministries, commissions, institutes, and military industries,
independently of the PRC intelligence services. This is believed to be the major method
of PRC intelligence activity in the United States. It also tries to identify ethnic Chinese in
the United States who have access to sensitive information, and sometimes is able to
enlist their cooperation in illegal technology information transfers.
Applicant submitted a document with a summary of information furnished from
the United States Government about Hong Kong. (Exhibit A.)  In a web posting from the
U.S. Department of State, it stated among other things: “Hong Kong remains a free and
open society where human rights are respected, courts are independent, and there is
well-established respect for the rule of law.” Also, “Every major religion is practiced
freely in Hong Kong.” Under another web posting from the U.S. Department of State, it
was written, “Under a Sino-British declaration of September 1984, Hong Kong reverted
to Chinese control on July 1, 1997. It is now a semi-autonomous entity that exists
pursuant to international agreement and maintains its own government apart from the
People’s Republic of China.” 
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the 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 commonsense 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. 
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).  
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Analysis
Guideline B, Foreign Influence
AG ¶ 6 expresses the security concern regarding 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. 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.
AG ¶ 7 describes conditions that could raise a security concern and may be
disqualifying. Those that could be applicable in this case include the following: 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.” Applicant’s relatives who are citizens and residents of Hong Kong, primarily
her father who resides in Hong Kong, make AG ¶ 7(a) a concern to the Government. I
find that 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  . . . and the individual’s desire to help a foreign person, group, or
country by providing that information” is also applicable in this case.
AG ¶ 8 provides conditions that could mitigate security concerns. I find that 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,” is applicable to this Applicant and controlling for the following reasons:  
Applicant moved to the United States when she was two or three years of age,
and has lived in the United States since then, with the exception of 1995 and 1996.
Applicant became a United States citizen in 1991.  Applicant has received all of her
college education in the United States, including a Ph.D. degree, and been employed
only in the United States. In her current position, Applicant earns $135,000 a year, and
her net assets in the United States total $200,000. She has no assets in Hong Kong
Applicant’s mother is a citizen and resident of the United States, and has a senior
position with a Unites States government agency. Applicant also has four aunts who live
in the United States. Applicant is far closer to her mother than to any relatives in Hong
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Kong, including her father, who is also a United States citizen. I therefore conclude
Guideline B for Applicant.
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.  
  
I considered the potentially Disqualifying and Mitigating conditions in light of all
the facts and circumstances surrounding this case. Based on all of the reasons cited
above as to why the Mitigating Conditions apply, considered together with the positive
character letters on behalf of Applicant, I find that the record evidence leaves me with
no significant questions or doubts as to Applicant’s eligibility and suitability for a security
clearance under the whole-person concept. For all these reasons, I conclude Applicant
has mitigated the security concerns. 
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 F: FOR APPLICANT
Subparagraphs 1.a through 1.g.: For Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge