1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 15-01585 ) Applicant for Security Clearance ) Appearances For Government: Candace Garcia, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MARSHALL, Jr., Arthur E., Administrative Judge: Statement of the Case On September 22, 2015, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline C (Foreign Preference) and 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 (AG) effective within the DOD on September 1, 2006. In a letter dated October 9, 2015, Applicant admitted two of four allegations raised under Guideline C and all allegations raised under Guideline B. He also requested a hearing. I was assigned the case on June 6, 2016. On September 2, 2016, the Defense Office of Hearings and Appeals (DOHA) issued a notice setting the hearing for September 21, 2016. It was convened as scheduled. The Government offered two documents, which were accepted into the record without objection as exhibits (Exs.) 1-2. In addition, it offered two requests for administrative notice concerning Taiwan and Malaysia, respectively, which were accepted into the record without objection as hearing exhibits (HE) I and II. During the 2 hearing, the Government’s request to amend allegations 1.c and 1.d was granted.1 Applicant gave testimony and introduced three witnesses. He also presented three documents, which were accepted into the record without objection as Exs. A-C. The transcript of the proceeding (Tr.) was received on September 29, 2016. When no additional materials were received by October 3, 2016, the record was closed. Based on a through review of the case file, I find that Applicant carried his burden in mitigating security concerns arising under Guideline C and Guideline B. Procedural and Evidentiary Rulings Request for Administrative Notice Department Counsel submitted written requests that I take administrative notice of certain facts about Taiwan and Malaysia. The requests were not admitted in evidence, but were included in the record as HE I and HE II. Applicant posed no objection, and I have taken administrative notice of the information set forth. The facts are summarized in the requests and will not be repeated in the Findings of Fact. Reference to some facts contained in the exhibits may be made in the Analysis section. Findings of Fact Applicant is a 40-year-old senior engineer who has worked for his present employer for nearly 12 years. He was born in Malaysia and moved to the United States in 2000 to pursue his collegiate studies. He earned a bachelor of science and a master of science degree in the United States. In 2004, he began working for his present employer. He is proud that his work gives him the ability to apply his technical expertise and passion to working on cutting-edge, life-saving technologies. In 2009, Applicant was granted a green card and, in 2014, he became a naturalized United States citizen. He has taken his U.S. citizenship seriously, pledging his allegiance to this country and voting in elections. (Tr. 9) He also invalidated his Malaysian passport.2 He was told by a representative of that government that, in light of his acquisition of U.S. citizenship and destruction of his Malaysian passport, he is no longer recognized as a Malaysian citizen. Consequently, he has not needed to take further action to renounce his prior citizenship.3 He has not visited Malaysia since 2008. He has no plans to return to Malaysia. (Tr. 51) 1 The amendment was with regard to an entity noted in the two allegations referenced. Applicant did not object to this amendment. The motion and its content are reflected in the transcript at pages 52-53. 2 Applicant obtained the Malaysian passport before becoming a United States citizen. He invalidated the document by cutting its corners after he became a United States citizen. In addition, that passport expired in March 2016, before the hearing. (Tr. 16-17, 35-36) 3 Before coming to the United States, Applicant worked a sufficient amount to earn an entitlement to about $18,000 in retirement benefits to start at age 55. This entitlement is not adversely affected by his renunciation of Malaysian citizenship. He does not consider the sum a sufficient incentive to regain foreign citizenship. (Tr. 37) Noting its nominal significance in light of his financial interests in this country, 3 Applicant’s wife is originally from Taiwan, but became a dual citizen of Taiwan and the United States after completing the naturalization process in this country in early 2014.4 She considers the United States to be her home, retaining her citizenship in Taiwan only to facilitate her occasional travel back to that country to see her parents and to maintain supplemental medical coverage there should she or a child fall ill on a visit. (Tr. 41; see also SOR response) She has not used the foreign passport since becoming a United States citizen. (Tr. 41) Presently a homemaker raising the couple’s two children, she has earned a master’s degree in international relations. She last visited Taiwan in 2014. Generally, Applicant stays at home and sends his wife and children on any trips by them to visit her family abroad. (Tr. 42) For about three months, between about August 2010 and January 2011, Applicant’s wife worked for a Taiwanese trade entity. (Tr. 20) It was not a consulate, but an entity providing commercial, informational, consular, and cultural services for Taiwanese citizens.5 (Tr. 18) While there, she helped mail documents and provided administrative duties related to commercial transactions. She did not handle sensitive or classified material. This was before either she or Applicant became United States citizens. Applicant’s wife maintains no contact with any former co-workers from this entity. She voluntarily left the position to become to have her first child. (Tr. 39) Applicant and his wife have, however, returned to this entity twice. The first time was to have a power of attorney letter notarized in February 2011. The second occasion was in August 2012, before either Applicant or his wife became United States citizens. Their purpose for the visit was to present their U.S.-born daughter’s birth certificate so she could be issued a Taiwanese passport.6 Neither Applicant nor his wife has had any contact with this entity since August 2012. Applicant and his wife consider the United States to be their home. It is where they chose to settle, raise a family, and eventually retire. They reside in a house they own, which is worth nearly $600,000. (Tr. 22, 33) Applicant also maintains investments in this country worth about $500,000 and generates nearly $140,000 a year in salary, Applicant is willing to do whatever is needed to divest himself of any rights to this expected sum if required. (Tr. 72) 4 A condominium in Taiwan given to Applicant’s wife by her parents shortly before she became a naturalized citizen of the United States was subsequently transferred back to her parents. Applicant’s wife no longer has any financial interests in Taiwan. (SOR response; Tr. 20-21) Her parents ultimately sold the property. (Tr. 35) 5 Due to the One China policy, the United States does not recognize Taiwan officially. Therefore, Taiwan does not have an official consulate in the United States. (Tr. 18-19; see also Request for Administrative Notice: Taiwan) 6 The power of attorney letter was obtained regarding property Applicant’s wife received from her parents. Since deciding to remain in the United States permanently and pursue citizenship, however, Applicant’s wife has since retransferred the property back to her parents. (Tr. 20-21) Ultimately, the foreign passport for their child was not used during the child’s 2012 visit to Taiwan. (Tr. 40) Applicant sees no need to renew that passport when it expires in August 2017. (Tr. 43) 4 while his wife has about $10,000 to $20,000 in savings here. He has no expectations of inheriting any interests from abroad. (Tr. 34) His two children were born in this country and his eldest child attends a local school. The eldest child became a dual citizen before her parents became United States citizens. The youngest, however, was born in 2014, and is solely a citizen of the United States. (Tr. 23) Applicant’s assets are all in this country and he has no interests abroad. Applicant’s mother is a citizen and resident of Malaysia. She is 76 years old, lacks an education, is illiterate, and is retired from employment in the private sector. She has had no nexus to a foreign military and is not the recipient of state pension funds. Although she understands Applicant works as an engineer, she knows no more of his job or career. She resides in a region far from the state in which Malaysia currently experiences some friction with terrorism. (Tr. 25) They maintain contact by telephone “every few months.” (Tr. 44). She visited Applicant in the United States in 2015, after the birth of her second grandchild. It was her second visit in the past 12 years. (Tr. 45) Over the past dozen years, Applicant has sent his mother approximately $35,000 in funds, at a rate of about $5,000 to $6,000 a year. These voluntarily contributions follow “a formal Chinese tradition or culture that make (sic) children who can afford are expected to provide gift and cash for the elderly parents in a special occasions like Chinese New year or her birthday . . . out of respect.” (Tr. 26) He stresses that these payments are supplemental, not mandatory, and do not pose any conflict of interest. Applicant also has three sisters who are citizens and residents of Malaysia. He is not close to these women and has not seen them in nearly a decade. They do not know of his work in the United States. They are all homemakers with no nexus to a foreign government. None of their spouses have connections with the Malaysian government or military. They live far from terrorist activity within their country. None of the siblings have visited Applicant and his family in the United States. They occasionally exchange texts concerning their mother or a holiday. (Tr. 45) Applicant’s in-laws are citizens and residents of Taiwan. Neither of these elderly retirees has a nexus with the Taiwanese government. They speak little English, do not receive retirement pensions from the Taiwanese government, and are financially independent. They do not know anything about Applicant’s work. Their occasional telephone calls to the United States are to speak with Applicant’s wife and discuss their grandchildren. (Tr. 28) Applicant’s brother-in-law is a citizen of Taiwan who resided in the United States for a period of time as part of his engineering education. (Tr. 49-50) He has no connection with the Taiwanese government or military. Applicant’s wife is not close to her brother and the two do not get along. (Tr. 29, 50) He has had no contact with Applicant or his sister in at least two years. (Tr. 50) At work, Applicant is a valued employee. (Ex. A) A former supervisor noted that Applicant was consistently noted as a fine worker who exceeds expectations and has a passion for his work. (Tr. 56) A former co-worker, with whom Applicant also maintains a social relationship, testified on Applicant’s behalf. That witness possesses a security 5 clearance and has done so for many years. He stated that Applicant is highly trustworthy and can reliably maintain a security clearance. (Tr. 65) Another witness who maintains a security clearance and knows Applicant socially also testified that he had no reservations about Applicant being granted a security clearance. (Tr. 66-68) 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 drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have not drawn 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, 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 and has the ultimate burden of persuasion to obtain 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 safeguard 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 6 applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline C - Foreign Preference AG ¶ 9 sets out the security concern relating to Foreign Preference: 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. Appellant was a dual citizen of the United States and, through his birth in that land, Malaysia. He has a Malaysian passport, has an interest in retirement benefits acquired when he worked in Malaysia, and has utilized consular services from Taiwan. In addition, his wife worked for an entity providing consular services for Taiwan. These facts are sufficient to raise: Disqualifying Condition AG ¶ 10(a): . . . exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport. . . (3) accepting educational, medical, retirement,.social welfare, or other such benefits from a foreign country . . . ; and Disqualifying Condition AG ¶ 10(d): . . . any statement or action that shows allegiance to a country other than the United States . . . . Applicant had a Malaysian passport issued to him before he became a United States citizen. After becoming a United States citizen, he invalidated his Malaysian passport. Moreover, through his own voluntary actions, he is no longer considered a citizen of Malaysian. He is willing to forfeit what is presently only a future interest in a retirement benefit from Malaysia. Applicant’s nexus to Taiwan is through his wife. His use of consular services from Taiwan occurred before he was a United States citizen, as was the time of his wife’s brief employment at that entity. These facts contribute to the applicability of Mitigating Condition AG ¶11: (b) the individual has expressed a willingness to renounce dual citizenship; (c) exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor; and (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. 7 Guideline B, Foreign Influence Foreign Influence AG ¶ 6 explains the security concern about “foreign contacts and interests” stating: [I]f the individual has divided loyalties or foreign financial interests, [he or she] 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. Here, there is evidence terrorism exists in a portion of Malaysia and evidence that interests within Taiwan potentially pose a threat in terms of espionage. AG ¶ 7 indicates three conditions that could raise a security concern and may be disqualifying 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; (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; and (d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion. Applicant’s spouse is a dual citizen of the United States and her native Taiwan, presently residing in the United States with their family in this country. Their eldest child, born before Applicant became a United States citizen, is a dual citizen of the United States and Taiwan through her mother’s Taiwanese citizenship. Applicant’s mother, to whom Applicant sends an annual fiscal tribute, is a citizen and resident of Malaysia, as are his sisters. Applicant’s parents-in-law and brother-in-law are citizens and residents of Taiwan. These ties potentially raise security concerns to the extent Applicant has contact with the above-referenced kin under AG ¶¶ 7 and 8. Applicant provided sufficient information indicating that his relationships with his sisters and brother-in-law are strained due to distance or family friction. He does not presently maintain contact with them. His relationship with his mother is respectful, but not close; his monetary submissions to her are an expression of cultural duty, not funds needed for her upkeep. Although his relationship with his in-laws is remote, it must be assumed that his wife maintains a normal, healthy relationship with her parents.7 It is 7 There is a rebuttable presumption that a person has ties of affection for, or obligation to, their immediate family members. See ISCR Case No. 01-03120, 2002 DOHA LEXIS 94 at 8 (App. Bd. Feb. 20, 2002). Applicant has ties of affection and obligation to his spouse, and she is close to her parent. “[A]s a matter of common sense and human experience, there is … a rebuttable presumption that a person has ties of 8 notable, however, that none of these individuals has a nexus with a foreign government or military, or is financially dependent on a foreign entity. None know of Applicant’s work. Those who live in Malaysia are geographically distant from terrorist activity. Moreover, Applicant’s ties to the United States are significantly stronger than they are to any foreign nation, given his passion for his work, financial holdings, real estate, home, and growing family. He has demonstrated so clear a commitment to his present life in the United States to diminish concerns regarding his sense of loyalty or obligation to foreign kin or foreign countries. Under these facts AG ¶ 8 is raised with regard to subsections (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.; and (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. In sum, while Applicant’s relationships with his wife and daughter are understandably warm, related concerns regarding their dual citizenship status are diminished by their residency with Applicant in the United States. His relationships with other kin or in-laws are minimized given the facts and circumstances presented. Applicant’s annual financial tribute to his mother is a gesture of cultural tradition, not a monetary handout needed for her support. Under these facts, I find that foreign influence security concerns under Guideline B are mitigated. Even if they were not so mitigated, they would be mitigated under the whole-person concept, infra. 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 relevant 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. I incorporated my comments under the three guidelines at issue in my whole-person analysis. Most of the factors in AG ¶ 2(a) were addressed under the above guideline, but some warrant additional comment. affection for, or obligation to, the immediate family members of the person’s spouse.” ISCR Case No. 07- 17673 at 3 (App. Bd. Apr. 2, 2009) (citing ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002)). 9 Applicant is a 40-year-old senior engineer who has worked for his present employer for over a decade. Born in Malaysia, he moved to the United States in 2000 to pursue higher education. In 2004, he began working for his present employer. Once married, he and his wife decided to stay in the United States and start a family. To that end, Applicant filed for naturalization and was granted United States citizenship in 2014. In the interim, however, he possessed a Malaysian passport that he has since invalidated, his wife worked for an entity providing Taiwanese consular services briefly, and he visited that entity for family matters in 2011 and 2012. Since becoming a United States citizen, he has actively pursued the American dream without seeking benefit of any other nation. Indeed, his focus on his life in the United States far outweighs his nexus to relations living in Malaysian and Taiwan. In light of these factors, I find that Applicant has mitigated foreign preference and foreign influence 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 C: FOR APPLICANT Subparagraphs 1.a-1.d For Applicant Paragraph 2, Guideline B: FOR APPLICANT Subparagraphs 2.a-2.g: 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 a security clearance. Eligibility for access to classified information is granted. _____________________________ Arthur E. Marshall, Jr. Administrative Judge