1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01364 ) Applicant for Security Clearance ) Appearances For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ COACHER, Robert E., Administrative Judge: Applicant failed to mitigate the security concerns under Guideline B, foreign influence. Applicant’s eligibility for a security clearance is denied. Statement of the Case On September 26, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence. DOD CAF acted 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 on September 1, 2006.1 1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Applicant answered (Ans.) the SOR on October 9, 2016. He requested a hearing before an administrative judge. The case was assigned to me on January 27, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on March 15, 2015, with a hearing date of April 12, 2017. The hearing was convened as scheduled. The Government offered exhibits (GE) 1 and 2, which were admitted into evidence without objection. The Government’s request to take administrative notice of certain facts about the People’s Republic of China (PRC) was marked as hearing exhibit (HE) I and its exhibit list was marked as a HE II. Applicant testified and offered exhibits (AE) A and B, which were admitted without objection. DOHA received the hearing transcript (Tr.) on April 20, 2017. Procedural Ruling Department Counsel moved to amend the SOR by withdrawing SOR ¶ 1.e. The motion was granted and my formal findings will reflect that allegation was withdrawn. Department Counsel submitted a formal request that I take administrative notice of certain facts relating to the PRC. Applicant did not object and the request was approved. The request and the attached documents were not admitted into evidence but were included in the record as HE I. The facts administratively noticed are set out in the Findings of Fact, below.2 Findings of Fact The SOR alleged Applicant’s mother is a U.S. citizen residing in the PRC; that his grandfather, a cousin, and an uncle are citizens and residents of the PRC; and an uncle is a citizen and resident of Singapore. In Applicant’s answer to the SOR, he admitted SOR allegations SOR ¶¶ 1.c, 1.d, and 1.f. He denied the allegations in SOR ¶¶ 1.a and 1.b. The admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact. Applicant is 24 years old. He was born in the PRC in 1993. He relocated to the United States with his family in either 1998 or 1999. He became a naturalized U.S. citizen in 2008, as did his parents. He went to high school and college in the United States. He received his bachelor’s degree in engineering in 2015. He began working for a defense contractor as an engineer in June 2016 (he worked as an intern from June to August 2015 for the same defense contractor). He has never held a security clearance before.3 Applicant’s maternal grandfather is over 90 years old. He is retired. He formerly worked for the railroad industry in the PRC. He served in the PRC army around the time 2 Tr. at 10-13. 3 Tr. at 5-6, 18-20; GE 1-2. 3 of the Korean War. Applicant has yearly contact with his grandfather. He attended his grandfather’s 90th birthday celebration in 2015. He used his U.S. passport for this trip. He does not possess a passport issued by the PRC.4 Applicant’s cousin is a citizen of the PRC currently residing in the United States. She is legally in this country using an H1B visa (allowing U.S. employment of foreign workers). She works as an accountant. Applicant stated his cousin bought a house, intends to remain in this country, and become a U.S. citizen. He has yearly contact with her.5 Applicant has an uncle who is a citizen and resident of the PRC. He is a schoolteacher. He has yearly contact with this uncle. He last saw this uncle in 2015 at his grandfather’s birthday celebration. Applicant has another uncle who is a citizen and resident of Singapore. He is an engineer who works for an oil shipping company. Applicant has yearly contact with this uncle and last saw him at his grandfather’s birthday celebration.6 Applicant’s mother is a naturalized U.S. citizen and is currently a U.S. resident. She was born, raised, and educated in the PRC. She has a PhD. From 2000 to 2011, she worked for a U.S.-based company. She was laid off from that position in 2012. A friend referred her to a PRC-affiliated institute where she was hired as an engineer in 2011. This institute has a history of hiring Chinese ex-patriots. This institute is a subsidiary of a PRC-owned company. She continued working for this institute until August 2016. She did not renew her contract at Applicant’s request. Applicant thought it best for his employment for her not to have an affiliation with this institute. She does not receive a retirement pension from this institute. She is retired living in a U.S. community with her husband, who is a realtor. She has not returned to the PRC since she left in 2016. Applicant testified that his parents have no intentions of ever returning to live in the PRC. His mother is 58 years old. Applicant provided a telephone log that showed calls he made to or received from numbers in the PRC from March through August 2016. All the calls were to or from his mother.7 Applicant’s yearly salary is approximately $70,000. He does not own any property, but rents an apartment. His parents paid for his car and his college, so he does not have any major debt obligations. He traveled to the PRC in 2008 and 2011- 2015. All the trips were to see his mother, except for a wedding in 2008 and his grandfather’s birthday in 2015. Applicant stated he does not intend to return to the PRC because he was advised by his company not to return.8 4 Tr. at 25, 29, 36; Ans.; GE 1-2. 5 Tr. at 26-27, 36; Ans.; GE 1-2. 6 Tr. at 25-26, 37; Ans.; GE 1-2. 7 Tr. at 28, 30-31, 34, 45-46; Ans.; GE 1-2; AE A-B. 8 Tr. at 28-29; 35, 38. 4 People’s Republic of China The PRC has an authoritarian government, dominated by the Chinese Communist Party. The PRC has a poor record with respect to human rights, suppresses political dissent, and its practices include arbitrary arrest and detention, forced confessions, torture, and mistreatment of prisoners. Repression and coercion, particularly against organizations and individuals involved in rights advocacy and public interest issues, are routine. The PRC is one of the most aggressive countries in targeting sensitive and protected U.S. technology, and economic intelligence. It has targeted the U.S. with active intelligence gathering programs, both legal and illegal. In China, authorities have monitored telephone conversations, facsimile transmissions, e-mail, text messaging, and internet communications. Authorities opened and censored mail. The security services routinely monitored and entered residences and offices to gain access to computers, telephones, and fax machines. All major hotels had a sizable internal security presence, and hotel guestrooms were sometimes bugged and searched for sensitive or proprietary materials. As recently as March 2017, a state department employee was charged with failing to report repeated contacts with PRC foreign intelligence agents who provided her and her family with thousands of dollars’ worth of gifts and benefits over five years.9 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(a), the entire process is a careful weighing 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 national security eligibility will be resolved in favor of the 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. 9 HE III. 5 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 that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Section 7 of EO 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 The security concern relating to the guideline for foreign influence is set out in AG ¶ 7: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns under AG ¶ 7. Two are potentially applicable in this case: (a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or 6 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 classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology. Applicant’s grandfather, uncle, and cousin are citizens of the PRC. His mother was a resident of the PRC and working for a PRC-affiliated institute until August 2016. The PRC is a communist country with a poor human rights record. It is one of the world’s most aggressive nations in the collection of U.S. intelligence and sensitive economic information. Because of the PRC’s posture in these areas, his relatives’ connection to the PRC, and his mother’s recent employment with a PRC institute, there exists a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. The same situation also creates a potential conflict of interest for Applicant. AG ¶¶ 7(a) and 7(b) have been raised by the evidence. Applicant’s connection to his uncle who is a resident and citizen of Singapore has little security significance, thus alleviating any heightened risk or potential conflict of interest. SOR ¶ 1.f is resolved in Applicant’s favor. Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8: (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 United States; and (b) there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest. Based upon the documented action of the PRC in attempting to gain intelligence from U.S. sources, the evidence does not support that it is unlikely that Applicant could be placed in a position to choose between the interests of his family in the PRC and those of the United States. Additionally, his mother’s recent close ties to the PRC place Applicant in a susceptible position. Although Applicant has some ties to the United States, he does not own property here and is recently just out of college. It is difficult to determine based upon the evidence that he has a deep and longstanding relation with 7 the United States such that he would resolve all conflicts in favor of the United States. As stated above, the protection of the national security is the paramount consideration and any doubt must be resolved in favor of national security. I am unable to find either of the mitigating conditions to be fully applicable. Despite the presence of some mitigation, it is insufficient to overcome the significant security concerns that exist. 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. The PRC has an authoritarian government, a bad human rights record, and has a very aggressive espionage program aimed at the United States. The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, or the country is known to conduct intelligence operations against the United States. There is no reason to question Applicant’s loyalty and devotion to this country. However, he has not overcome the vulnerability to pressure, coercion, exploitation, and duress created by his relatives living in the PRC and his mother’s recent close connection to the PRC. Applicant has done nothing whatsoever to question his loyalty and devotion to this country. However, he has simply been unable to overcome the heavy burden of showing that he is not subject to influence by the PRC. His vulnerability to foreign pressure, coercion, exploitation, or duress remains a 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 Foreign Influence security concerns. 8 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 Subparagraphs 1.b – 1.d: Against Applicant Subparagraph 1.e: Withdrawn Subparagraph 1.f: For 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. _____________________________ Robert E. Coacher Administrative Judge