2 Applicant answered the SOR on September 27, 2016, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on November 1, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on November 2, 2016, scheduling the hearing for December 1, 2016. The hearing was convened as scheduled. The Government offered Exhibit (GE) 1, which was admitted without objection, and Hearing Exhibit (HE) I. Applicant presented 11 exhibits, marked Applicant Exhibit (AE) A through K, which was admitted without objection, and testified on her own behalf. DOHA received the transcript of the hearing (Tr.) on December 13, 2016. Procedural Rulings At the hearing, the Government requested I take administrative notice of certain facts relating to China. Department Counsel provided an eight-page summary of the facts, supported by ten Government documents pertaining to China, identified as HE I. The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact. Findings of Fact Applicant admitted SOR allegation ¶ 2.a. She denied SOR allegation ¶ 1.a. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 52-year-old employee of a defense contractor. She has been employed with the defense contractor since 2015. She immigrated to the United States in 2001. She acquired U.S. citizenship in 2010. She has a U.S. passport, which she has used to travel since obtaining U.S. citizenship. She is married to a naturalized U.S. citizen and has two children, who are both native-born U.S. citizens. (GE 1; AE D; Tr. 23.) Applicant was born in China. She earned a bachelor’s degree and a master’s degree at Chinese universities. From 1992 to 1994, she attended a university in Australia and earned a doctorate from that university in 1996. She acquired Australian citizenship in May 1997. She was issued an Australian passport in December 2007, which will expire in December 2017. Applicant has relinquished that passport to her FSO and no longer has it in her possession, as documented by a letter from her FSO. (AE J.) She has not used her Australian passport since acquiring her U.S. citizenship, and does not intend to renew it. She signed a statement expressing that she will not exercise any privileges of dual citizenship while possessing a security clearance. (GE 1; AE C; AE E; Tr. 19-20, 24-26.) At the age of one, Applicant’s maternal aunt (foster mother) and uncle (foster father) took her in as a foster child. Her foster mother is deceased and her foster father is 80 years old. He is a citizen and resident of China. He is retired from a position in a 3 private restaurant. He owns a home, valued at approximately $100,000, which Applicant stands to inherit. Applicant does not provide him financial support. He has no affiliation with the Chinese Government. He does not receive a pension from the Chinese Government. Applicant communicates with her foster father on a weekly basis by phone. They are close. (GE 1; Tr. 21, 27-29, 31-32, 36, 38, 42.) Applicant’s birth family included her birth father, birth mother, and three sisters. Applicant’s birth mother is deceased. Her birth father is 75 years old, and retired from a job with the “local justice bureau.” He receives a pension from the Chinese Government. She claims he is not a member of the Communist Party. Applicant does not provide him financial support. He supplements his income by working in a restaurant owned by Applicant’s sister. He has not visited Applicant in the United States. Applicant communicates with him by telephone on holidays. (GE 1; Tr. 21-22, 29-31, 43.) Applicant’s three sisters range in age from 50 to 54. Her older sister owns a private restaurant where her father works. Her middle sister works as an accountant for the restaurant. Her youngest sister is a nurse at a government run hospital. Applicant calls them on Chinese New Year. Applicant does not provide her sisters financial support. (GE 1; Tr. 33, 43-45.) Applicant’s father-in-law is 81 years old. Applicant does not communicate with him. None of Applicant’s Chinese family members know what she does for a living. They do not know she has applied for a security clearance. (Tr. 21, 37.) Applicant visited China from February to March 2009; in July 2009; in March 2010; in September 2010; for two weeks in 2013; in November 2015; and in April 2016. She intends to visit China in the future, but has no specific travel dates planned. (GE 1; Tr. 31-32.) Applicant owns a home in the United States, valued at $1.22 million. She did not state how much equity she has in the home. She reported she has retirement savings accounts. She has no assets in China. She votes in U.S. elections. She is active within her church community. She has a monthly remainder of $7,314, after expenses are paid. (AE F; AE G; AE H; Tr. 39-41.) Applicant’s performance evaluations reflect she is a valued employee. (AE A.) She received several awards from her former employer, including “Outstanding Employee of the Year” in 2012. (AE B.) Those that wrote letters of recommendation on Applicant’s behalf indicate she is honest, reliable, and trustworthy. (AE I.) China I take administrative notice of the facts set forth in the Administrative Notice documents concerning China, which are incorporated herein by reference. 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. China has an 4 authoritarian government, dominated by the Chinese Communist Party. It has a poor record with respect to human rights, suppresses 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 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. All major hotels have a sizable internal security presence, and hotel guestrooms are sometimes bugged and searched for sensitive or proprietary materials. There are several recent cases involving actual or attempted espionage, as well as the illegal export of information to China. 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 to be 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, administrative judges apply the guidelines 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. 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” 5 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 EO 10865 provides that adverse 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 C, Foreign Preference The security concern relating to the guideline for Foreign Preference is set out in AG ¶ 9: 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. The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following is potentially applicable in this case: (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. Applicant was a dual citizen of the United States and Australia. She possessed a valid Australian passport after becoming a U.S. citizen. The evidence is sufficient to raise the above disqualifying condition. Conditions that could mitigate foreign preference security concerns are described under AG ¶ 11. One is potentially applicable: (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. 6 Applicant surrendered her Australian passport to her FSO. AG ¶ 11(e) provides mitigation with respect to this guideline. Foreign Influence AG ¶ 6 explains the security concerns pertaining to foreign influence as follows: Foreign contacts and interest 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 sets out two 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; 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. China is known to target U.S. citizens to obtain protected information, and has a significant interest in acquiring defense-related and other technology. While there is no evidence that intelligence operatives from China seek or have sought classified or economic information from or through Applicant or her family, nevertheless, it is not prudent to rule out such a possibility in the future. Applicant’s relationship with her foster father, birth father, father-in-law, and three sisters creates substantial potential for conflict of interest. Those circumstances could place Applicant in a position of having to choose between family members residing in China, a country that generates a heightened risk of coercion, and the United States. The evidence is sufficient to raise potential security concerns under AG ¶¶ 7(a), and 7(b). The Government met its burden of production by raising the above disqualifying conditions and shifts the burden to Applicant to prove mitigation. 7 AG ¶ 8 lists three conditions that could mitigate foreign influence security concerns. Those with potential application in mitigating the security concerns in this case are: (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. AG ¶ 8(a) does not have application under the facts in this case. Applicant’s foster father, birth father, father-in law, and three sisters are citizens and residents of China. The family’s physical presence in that country creates a heightened potential for exploitation, inducement, manipulation, pressure, or coercion, as there is strong evidence of China’s human rights abuses toward citizens and residents. Thus, Applicant’s family interests could be threatened to the point that she would confront a choice between their interests and those of the United States should adverse forces learn of Applicant’s work for the U.S. Government. AG ¶ 8(b) provides some mitigation. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the U.S.,” such that she “can be expected to resolve any conflict of interest in favor of the U.S. interest.” She has lived in the United States since 2001 and became a citizen in 2010. Her husband is a naturalized U.S. citizen, and her two children are U.S. citizens. She has successfully worked for her employer for the past two years. She has economic ties to the United States, including a financial interest in real estate, and retirement savings. While those factors weigh in Applicant’s favor, she maintains strong ties to her Chinese foster father, and to a lesser extent her birth father and sisters. AG ¶ 8(c) provides mitigation with respect to her father-in-law. She testified she has no communications with him. It does not provide mitigation for the security concerns raised with respect to her foster father, birth father, or sisters. Applicant maintains regular contact with her foster father. She has some contact with her birth father and sisters. All of these people are citizens and residents of China. She visits her family members in China regularly. These contacts have been sufficiently frequent that they cannot be construed as casual or infrequent. 8 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 relevant circumstances. 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 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. I considered the potentially disqualifying and mitigating conditions in light of all pertinent facts and circumstances surrounding this case. Some mitigating evidence weighs in favor of granting Applicant a security clearance. She is an intelligent, articulate, and hardworking person, who has lived in the United States for approximately 16 years. Her husband and two children are U.S. citizens and residents. She owns her home and has retirement accounts in the United States. She no longer holds a valid Australian passport. Four circumstances weigh against Applicant in the whole-person analysis. First, Applicant had numerous connections to China before she immigrated to the United States in 2001. She spent her formative years there and earned a bachelor’s and master’s degrees at a Chinese university. Second, Applicant’s foster father, birth father, sisters and father-in-law are citizens and residents of China. Third, China is a known collector of U.S. technological and economic information. Fourth, and more importantly for security purposes, the Chinese government is hostile to the United States and actively seeks classified information. The Chinese government could attempt to use Applicant’s family members to obtain protected information and compromise Applicant’s responsibilities to the United States. After weighing the disqualifying and mitigating conditions, and all facts and circumstances in the context of the whole-person, Applicant has not sufficiently mitigated the security concerns pertaining to foreign influence. Overall, the record evidence leaves doubt as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant did not mitigate the security concerns arising under Guideline B. 9 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 Subparagraph 1.a: For Applicant Paragraph 2, Guideline B: AGAINST APPLICANT Subparagraph 2.a: 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. ________________________ Jennifer I. Goldstein Administrative Judge