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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-10917
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the pleadings and exhibits, Applicant’s eligibility for
access to classified information is denied.
Statement of the Case
Applicant completed and certified an Electronic Questionnaire for Investigations
Processing (e-QIP) on February 14, 2011. The Department of Defense (DOD) issued
Applicant a Statement of Reasons (SOR) on January 10, 2013, 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 Adjudicative Guidelines For Determining Eligibility for Access to Classified
Information (AG) implemented on September 1, 2006. 
 
Item 6.1
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Applicant received the SOR. He submitted a notarized, written response to the
SOR allegations dated February 5, 2013, and he requested a decision on the written
record in lieu of a hearing. 
Department Counsel prepared a file of relevant material (FORM) and mailed
Applicant a complete copy, which he received on March 19, 2013. He had 30 days from
receipt of the FORM to file objections and submit material in refutation, extenuation, or
mitigation. He did not submit a response. DOHA assigned this case to me on May 2,
2013. The Government submitted seven exhibits, which have been marked as Items 1-7
and admitted into the record. Applicant’s response to the SOR has been marked and
admitted as Item 3, and the SOR has been marked as Item 1.
Procedural Ruling
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 and Hong Kong. The request
and the attached documents were not admitted into evidence, but were included in the
record as Hearing Exhibit 1, I-XVI. The facts administratively noticed will be limited to
matters of general knowledge and matters not subject to reasonable dispute, and are
set out in the Findings of Fact below. 
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a -
1.e of the SOR. His admissions are incorporated herein as findings of fact. After a
complete and thorough review of the evidence of record, I make the following findings of
fact.  
Applicant, who is 36 years old, works as an electrical engineer for a Department
of Defense contractor. He began his current employment in August 2007. He previously
worked for a Department of Defense contractor and was granted a security clearance
after an Office of Personnel Management investigation in 2004.1
Applicant was born in 1977 in Hong Kong. Because Hong Kong was under British
rule, he was a British citizen by birth. Around the time Great Britain transferred the
sovereignty of Hong Kong to the People’s Republic of China in 1997, Applicant
emigrated from Hong Kong to the United States with his family. He became a
naturalized United States citizen in February 2003. Applicant’s father and one sister are
citizens and residents of the United States, although his father has resided in Hong
Kong as recently as 2004. His mother is a citizen of Hong Kong and a permanent U.S.
resident, living with Applicant. His second sister is a U.S. citizen, who began living in
Items 5 - 7.2
Item 6.3
Item 6; Item 7.4
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Hong Kong in 2004 where she works as a social worker. He communicates with her
about four times a year.2
Applicant attended college in the United States. He graduated from a major U.S.
university with a bachelor’s degree in electrical engineering in 2004. He registered for
the U.S. Selective Service as required. He has never served in the United States
military or a military of any other country.3
Applicant married in December 2010. His 27-year-old wife was born in the
People’s Republic of China (PRC) and lives with him in the United States. She has a
permanent resident card. Her parents and sister are citizens and residents of the PRC.
He communicates with his in-laws about four times a year. The frequency of his wife’s
communications with her family is unknown. He traveled to the PRC several times
before he and his wife married, but he has not traveled to the PRC since his marriage.4
Applicant’s father owns a piece of property in Hong Kong. The value of this
property is unknown and any future rights of the Applicant to the property is unknown.
Applicant estimates his net worth in the United States at approximately $350,000. He
has a small bank account in Hong Kong with an approximate value of $2,800.
Administrative Notice
People’s Republic of China (PRC)
The PRC is an authoritarian, communist party-led state. Human rights violations
continue to be problematic. Concerns regarding the PRC’s weapons development, theft
of classified technology information between 1979 and 1999, and industrial espionage
activities remain. The PRC continues to have active intelligence operations in the United
States, which seek to obtain military and industrial secrets through Americans of Chinese
ancestry. On the other hand, the PRC supports the United State’s anti-terrorism position
and activities. The United States and the PRC have developed joint trade agreements,
resulting in the sale of goods to each other, and work together on environmental issues.
The PRC enjoys a most favored nation status in trading with the United States. The PRC
has opened its doors to outside investment.
Hong Kong
In 1997, the PRC resumed the exercise of sovereignty over Hong Kong after 150
years of British Colonial rule. Hong Kong is a Special Administrative Region of the PRC.
Hong Kong’s defense and foreign relations are the responsibility of the PRC.  Hong Kong
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is a customs territory and an economic entity separate from the rest of China. Hong
Kong can enter into international agreements on its own behalf in commercial and
economic matters. U.S. policy toward Hong Kong is set forth in the U.S.-Hong Kong
Policy Act of 1992 and is grounded in the determination to promote Hong Kong’s
prosperity, autonomy, and way of life. The United States maintains substantial economic
and political interests in Hong Kong and supports Hong Kong under the “One County,
Two Systems” framework by concluding and implementing bilateral agreements;
promoting trade and investments; broadening law enforcement cooperation; bolestering
educational, academic, and cultural links; supporting high-level visits of U.S. Officials;
and serving the large community of U.S. citizens and visitors. Hong Kong actively works
in counterterrorism efforts and is an important partner in efforts to eliminate funding for
terrorist networks and combat money laundering. The United States and Hong Kong
have substantial economic and social ties. Independent of the PRC, Hong Kong
participates in several international economic organizations, such as the World Trade
Organization, Asia-Pacific Economic Cooperation forum, and Financial Action Task
Force.
While the PRC is known to be an active collector of U.S. economic and military
intelligence and proprietary information, there is no evidence that Hong Kong does.
Likewise, there is no evidence Hong Kong uses coercive measures to gain access to
such information. While there have been a number of incidents involving individuals,
companies, and PRC intelligence officers improperly acquiring U.S. economic and
military intelligence and proprietary information, there is no direct or indirect connection
to, or involvement with, Applicant. 
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines. In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are used 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 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
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drawn only those conclusions that are reasonable, logical, and based on the evidence
contained in the record.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, 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. . . .” An applicant
has the ultimate burden of persuasion for 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
an 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 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 the disqualifying conditions that could raise security concerns. I
have considered all the conditions, and the following are potentially applicable: 
(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
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country if that contact creates a heightened risk of foreign exploitation,
inducement, manipulation, pressure, or coercion; 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 father and one sister are citizens and residents of the United States.
His mother is a permanent U.S. resident, who lives with Applicant. Thus, no security
concern is raised by these family members. Applicant’s wife is a citizen of the PRC, living
with him in the United States. Applicant’s other sister is a U.S. citizen, who works and
resides in the Hong Kong. His wife’s parents and sister are citizens and residents of the
PRC. Applicant maintains a normal familial relationship with his sister in Hong Kong and
with his in-laws in the PRC. He communicates with them about four times a year. His
father owns property in Hong Kong, which his father has used as a residence in the past.
His family relationships are not per se a reason to deny Applicant a security clearance,
but his contacts with his family members must be considered in deciding whether to
grant Applicant a clearance. The Government must establish that these family
relationships create a risk of foreign exploitation, inducement, manipulation, pressure, or
coercion or would create a potential conflict of interest between his obligations to protect
sensitive information and his desire to help his family members. 
In determining if such a risk exists, I must look at Applicant’s relationships and
contacts with his family, as well as the activities of the governments of Hong Kong and
PRC. The risk that an applicant could be targeted for manipulation or induced into
compromising classified information is real, not theoretical. Applicant’s relationship and
contacts with his family in Hong Kong and the PRC raise a heightened risk and a
security concern because the monitoring and surveillance activities of the PRC
government intrude upon the privacy of its citizens. The evidence of record fails to show
that the government of Hong Kong targets U.S. citizens in the United States or in Hong
Kong by exploiting, manipulating, pressuring, or coercing them to obtain protected
information. Thus, the concern that the Hong Kong government will seek classified
information is moderate. The same cannot be said of the PRC government, which
actively engages in espionage activities in the United States and targets American-
Chinese citizens for classified information.
Under the guideline, the potentially conflicting loyalties must be weighed to
determine if an applicant can be expected to resolve any conflict in favor of U.S.
interests. In determining if Applicant’s contacts in Hong Kong and the PRC cause
security concerns, I considered that Hong Kong, the PRC,  and the United States have a
relationship, which includes working together on international security issues and trade.
There is no evidence that the Hong Kong government targets U.S. citizens for protected
information, but there is evidence that the PRC does. The human rights issues in the
PRC continue to be a concern, but are not a concern with the Hong Kong government.
While none of these considerations by themselves dispose of the issue, they are all
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factors to be considered in determining Applicant’s vulnerability to pressure or coercion
because of his family in Hong Kong and the PRC. Applicant’s contacts with his family
raise a heightened risk under AG ¶¶ 7(a) and (b). However, since Applicant’s mother
resides in the U.S., she does not raise a heightened risk under AG ¶¶ 7(a) and (b).
The foreign influence guideline also includes examples of conditions that can
mitigate security concerns. I have considered mitigating factors AG ¶ 8(a) through 8(f),
and the following are potentially applicable:                                                                 
(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.;
(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; 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’s communication with his sister in Hong Kong is limited and creates little
likelihood for foreign influence or exploitation. It is unlikely that the government of Hong
Kong, on its own, would target her to pressure Applicant for classified information, and
thus, Applicant would not be placed in a position of having to choose between the
interests of Hong Kong and the interests of the United States. Applicant’s inheritance
rights to his father’s property in Hong Kong is unknown, but he would most likely share
the inheritance with his mother and sister. Outside of this possible inheritance and a
small bank account, Applicant does not have any other assets in Hong Kong. He does
not receive any benefits from Hong Kong or the PRC government. His contacts in Hong
Kong do not show that he would chose the interests of Hong Kong over the interests of
the United States. In reviewing all the evidence of record, there is little likelihood that
Applicant’s sister in Hong Kong is a security risk. Applicant has mitigated the security
concerns about his sister in Hong Kong under AG ¶¶ 8(a)-8(c).
Concerning his in-laws in the PRC, a security concern remains because of the
activities of the PRC government towards its citizens in the country and in the United
States. The PRC actively seeks U.S. classified information, using any method it can to
obtain it.  Because his in-laws live in the PRC, he is vulnerable to pressure from the PRC
government through them and his wife. Applicant has not mitigated the security concerns
related to his father-in-law, mother-in-law and sister-in-law living in the PRC under AG ¶
8.
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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 an applicant’s
conduct and all relevant 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 decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct, but
on a reasonable and careful evaluation of all the evidence of record to decide if a nexus
exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
immigrated to the United States in 1997 when the British Colonial rule of Hong Kong
ceased and the PRC resumed sovereignty over Hong Kong. He became a U.S. citizen
and graduated from a major U.S. university with an electrical engineering degree. He
registered with the U.S. Selective Service. His loyalty to the United States is not
questioned. However, he chose to court and marry a citizen of the PRC, whose family
members remain in the PRC. Their continued residence in the PRC places them in a
position of potential pressure from the PRC government to coerce and exploit Applicant
through his wife to provide classified information to the PRC. Given the aggressive
activities of the PRC government to obtain classified U.S. military documents, his wife’s
family in the PRC remains a security concern.
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising under Guideline B.
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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
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: Against 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.  Eligibility for access to classified information is denied.
                                                              
MARY E. HENRY
Administrative Judge