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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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-------------------- )       ISCR Case No. 14-05743
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Sean M. Bigley, Esquire
February 29, 2016
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Decision
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MOGUL, Martin H., Administrative Judge:
On February 20, 2015, the Department of Defense Consolidated Adjudication
Facility (DoD CAF) issued a Statement of Reasons (SOR) detailing the security
concerns under Guidelines B and C 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 within the Department of
Defense for SORs issued after September 1, 2006. 
 
Applicant replied to the SOR (RSOR) in writing on April 14, 2015, and she
requested a hearing before an Administrative Judge. The case was assigned to this
Administrative Judge on July 13, 2015. DOHA issued a notice of hearing on July 16,
2015, and I convened the hearing as scheduled on August 26, 2015. At the hearing, the
Government offered Exhibits 1 and 2, which were received and admitted without
objection. Applicant testified on her own behalf and submitted Exhibits A through H,
which were also admitted without objection. Two additional witness also testified on
behalf of Applicant. DOHA received the transcript of the hearing (Tr) on September 3,
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2015. Based upon a review of the pleadings, exhibits, and the testimony of Applicant
and her witnesses, 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 (the PRC). The request and the attached
documents were admitted into evidence as Exhibit 2. The facts administratively noticed
are set out in the Findings of Fact, below. 
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 the
additional witnesses, and upon due consideration of that evidence, I make the following
findings of fact: 
Applicant is 45 years old. She was born in the PRC in 1970, and she moved to
the United States in 1998, as a graduate student. She became a naturalized United
States citizen in January 2010. Applicant has been married to her husband since 1995,
and they have one daughter, age 7, who is a United States citizen. Her husband was
born in the PRC, came to the United States in 1999, and became a U. S. citizen on the
same day as Applicant. 
Applicant received Masters and Ph.D. degrees from American universities in Civil
Engineering. She is employed by a defense contractor, and she seeks a DoD security
clearance in connection with her employment in the defense sector.  
Paragraph 1 (Guideline B - Foreign Influence) 
The SOR lists six allegations regarding Foreign Influence, under Adjudicative
Guideline B: 
1.a. It is alleged in the SOR that Applicant’s father is a citizen and resident of the
PRC. Applicant’s father is 76 and retired. He was a chemical engineer for a local
medicine chemical factory. She speaks to her father approximately once a month. She
has only seen her parents once in the last 17 years, in 2006, when they came to visit
Applicant in the U. S. (Tr at 57-59.) Applicant averred that none of her family members
ever worked for the PRC Government, and she has never offered financial support to
any of her PRC relatives. (Tr at 64, 71.) 
1.b. It is alleged in the SOR that Applicant’s mother is a citizen and resident of
the PRC. Applicant’s mother is also 76 and retired. She worked as a technician for the
same medical chemical company as Applicant’s father. Applicant speaks to her mother
with the same frequency as her father. (Tr at 59.) 
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1.c. It is alleged in the SOR that Applicant’s brother is a citizen and resident of
the PRC. Applicant testified that her brother is 53, and was a chemical engineer for an
automobile company, but he is also retired. She speaks to him once a year on Chinese
New Year Day, and she has not seen him in 17 years.  (Tr at 60-61.) 
1.d. It is alleged in the SOR that Applicant’s sister is a citizen and resident of the
PRC.  Applicant testified that she has not seen her sister in 17 years, and she contacts
her by email approximately three or four times a year. (Tr at 61.) Applicant’s sister is a
nurse, and she works in a university. (Tr at 79.)  
  
1.e. It is alleged in the SOR that Applicant’s father-in-law and mother-in-law are
citizens and residents of the PRC. Applicant testified that they are both 75 or 76 years
old, and they are both retired. They previously were employed as medical doctors by a
small community hospital. Applicant never calls her in-laws, and she only speaks with
them, one or two times a year, as she picks up the phone to speak to them after her
husband has been talking to them. (Tr at 61-62.) 
 
1.f. It is alleged in the SOR that Applicant owns a home in the PRC in which her
in-laws reside. Applicant testified that this house in the PRC was a gift from her in-laws
to Applicant’s husband, and it was never registered in her name. Her in-laws have never
lived in this house. Applicant’s husband was not informed of the gift until after the
purchase was made. Since that time, Applicant’s husband has transferred the property
back to his father, so neither Applicant nor her husband has any current financial
interest in the house or any other property in the PRC. (Tr at 64-65.) Exhibits B and C
establish that Applicant and her husband have transferred the PRC property back to her
husband’s father, and the house is now owned by Applicant’s father-in-law.
Applicant testified that her husband and she earn approximately $255,000 plus
bonuses per year. She also has approximately $800,000 saved in United States
financial institutions. Additionally, Applicant owns a townhouse in which she has paid
$120,000 of a $320,000 mortgage. Finally, Applicant testified that she has no financial
interest in the PRC or any professional affiliations with the country. (Tr at 51-52., Exhibit
F.)
Paragraph 2 (Guideline C - Foreign Preference) 
The SOR lists one allegation regarding Foreign Preference, under Adjudicative
Guideline C.
 
2.a. It is alleged in the SOR that Applicant possesses a PRC passport issued in
June 2008, and not scheduled to expire until June 2018. 
Applicant testified that after she became a United States citizen, she was not
sure what to do with her passport. She has since given her current passport and an
expired passport to her Facility Security Officer (FSO), and they have been destroyed.
Exhibit G confirms that the FSO of Applicant’s employer did destroy Applicant’s current
and expired PRC passports on March 11, 2015. 
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Applicant further testified that “My heart is in the United States.” Since she came
to the United States more than 17 years ago, she has never once returned to the PRC.
She also has no friends from the PRC with whom she still has contact. Finally, she
reiterated that she has no intention to return to the PRC, and she has no potential
divided loyalty between the PRC and the United States, because her loyalty lies
completely with the United States. (Tr at 53-54, 77-79.) 
Mitigation
As reviewed above, two witnesses also testified on behalf of Applicant. One is an
Associate Director and the other is a Principal Director of Applicant’s current employer.
The witnesses recommended Applicant as “super conscientious” and someone with
“impeccable” character. (Tr at 22-36.) 
Applicant also submitted nine extremely positive and laudatory character letters,
two of which were from the witnesses described above. (Exhibit H.) Applicant was
described as someone with “a remarkable work ethic [who has] demonstrated a high
degree of integrity, both in her work and in character.”
Current Status of the PRC
I take administrative notice of the following facts regarding the PRC.  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. (Exhibit 2.)
Policies
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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). 
Analysis
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Paragraph 2 (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 family members, who are citizens and residents of the PRC make
AG ¶ 7(a) a concern to the Government. AG ¶ 7 (e) “a substantial business, financial, or
property interest in a foreign country . . . which could subject the individual to
heightened risk of foreign influence or exploitation” is also potentially applicable
because of Applicant’s alleged property in the PRC. 
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 because of the following: Applicant, her husband
and their daughter are all United States citizens and residents. Applicant received her
Ph.D. in the United States, and she has a net worth of more that $800,000 here.
Applicant has not visited the PRC since she first came to the United States, more than
17 years ago. Additionally, the two witnesses and the submitted character letters were
extremely positive in extolling Applicant’s exemplary character and integrity. Finally
Applicant testified credibly and convincingly that her loyalty lies with the United States,
and she has no divided loyalty with the PRC. 
While there was a house that had been gifted to Applicant’s husband without his
knowledge, that home has been now returned to Applicant’s father-in-law. Because of
Applicant’s significant assets in the United States, even if the house in the PRC had not
been returned,  AG ¶ 8(f) would be applicable, because “the value . . . [of the] property
interests is such that they are unlikely to result in a conflict and could not be used to
effectively to influence, manipulate, or pressure the individual.” As a result of all of these
factors, I conclude Guideline B for Applicant.
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Guideline C, Foreign Preference
 Under AG ¶ 9 the security concern involving foreign preference arises, “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.”
Applicant’s retention of her passport from the PRC raises foreign preference
concerns under disqualifying condition AG ¶ 10(a) as the “exercise of any right, privilege
or obligation of foreign citizenship.”
However, Applicant never has taken any affirmative act of foreign citizenship
after becoming a United States citizen, including not using her PRC passport after she
became a United States citizen, and she has now destroyed her PRC passport.
Therefore, I find that mitigating conditions AG ¶ 11(a), (c) and (e) apply to this case.
After considering all of the evidence of record under Guideline C, I conclude that the
mitigating evidence substantially outweighs any disqualifying evidence. 
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 under Guidelines B and C. Based on all
of the reasons cited above as to why the mitigating conditions are applicable and
controlling under both Guidelines, I find that the 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 under the whole-person concept. 
Formal Findings
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         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:             FOR APPLICANT
                            Subparagraphs 1.a. - 1.f.:              For Applicant
                   Paragraph 2, Guideline C:             FOR APPLICANT
                           Subparagraph 2.a.:                        For Applicant
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