DATE: March 27, 2003

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

PAUL J. MASON

APPEARANCES

FOR GOVERNMENT

Kathyrn D. MacKinnon, Esq., Department Counsel

FOR APPLICANT

Sheldon I. Cohen, Esq.

SYNOPSIS

Applicant, a citizen of Taiwan by birth, immigrated to the United States (US) in December 1977 to pursue advanced education. After receiving his master's degree in civil engineering, he pursued additional training and worked at various jobs, including a construction business. After receiving his PhD in nuclear rock engineering, Applicant landed a job working with the Department of Energy (DOE) in handling nuclear waste. The project lost its funding, and Applicant was laid off in September 1995. For about three to four months, Applicant searched the local area but was unable to find work in his specialty of nuclear rock engineering. Applicant accepted a job in Taiwan by the high speed rail agency and began working in February 1996. Before the job started, he was told to supply his Taiwan passport to the personnel office for administrative purposes. After working more than 21/2 years as an employee or consultant of the rail agency, he returned to the US to be with his family and find work in his specialty. The unsuccessful search convinced Applicant to change professions. Given Applicant's preferential conduct for the US since November 1998, which is underscored by renunciation of his Taiwanese citizenship, there is a sufficient basis to find for Applicant under the foreign preference guideline. The foreign national status of Applicant's immediate family raises a security risk under the foreign influence guideline. This risk is persuasively removed by the positive evidence reflecting that none of the relatives have any current ties with the Government, or are at any material risk to be pressured or exploited by the Taiwan Government. Clearance is granted.

On May 17, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, amended by Change 4, April 20, 1999, issued a Statement of Reasons (SOR) to Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. The SOR is attached. Applicant filed his Answer to the SOR on June 19, 2002.

The case was received by the undersigned on October 10, 2002. A notice of hearing was issued on January 9, 2003, and the case was heard on February 14, 2003. The Government and Applicant submitted documentary evidence. The Government called no witnesses. Testimony was taken from Applicant and 3 witnesses. The transcript was received on February 24, 2003.

During the hearing, the Government moved to amend the SOR (Tr. 174) by changing the language of subparagraph 1.c. to read, "You worked for the Taiwan government from 1996 to 1997." The motion was overruled because Applicant was never technically an employee of the Taiwanese government.

I have also taken official notice of the consular information sheet for Taiwan, effective February 3, 2003.

The SOR alleges foreign preference and foreign influence. Applicant's admissions to all the factual allegations shall be incorporated into the factual findings. Applicant is 50 years old and has been employed as a software engineer by his current employer since July 1999. He seeks a secret level clearance.

Appellant was born in Taipei, Taiwan on March 10, 1953. In 1975, he received his Bachelor of Science degree in hydraulic engineering at a Taiwanese university, and then completed mandatory military service in 1975, 1976 and 1977. Applicant then immigrated to the United States with his girlfriend on December 27, 1977. Applicant married his girlfriend in 1979.

While working as a consultant for a mining company from 1979 to approximately 1984, Applicant began graduate school and received a master's degree in civil engineering in 1983. His wife had already received her master's degree in accounting in 1981. From 1985 to 1989, Applicant was a consultant to a geotechnical consulting firm. In the early 1990s, Applicant and his friends formed a construction business, but a west coast earthquake drove him out of business within two years. (Tr. 117) After receiving his United States citizenship in January 1988, ⁽¹⁾ Applicant was awarded a PhD. in mineral engineering in 1993. See, Security Clearance Application (SCA) (GE 1)

Between 1991 and September 1995, Applicant returned to a employer he previously worked for. This time around, he was a performance consultant to a subcontractor with a Department Of Energy (DOE), nuclear waste project. In September 1995, the overall budget for nuclear waste repository projects was dramatically cut,(Tr. 119), resulting in a massive layoff. Applicant was out of work for approximately four months. He tried to find work in the US., first by reviewing the local newspaper (Tr. 122), then contacting three employment agencies. Next, he examined the opportunities available in an employment journal and through a friend. Applicant opined he could not find a job because there was not much government investment directed at infrastructure. (Tr. 122) Applicant's wife also knew the job market was limited for someone who specialized in nuclear waste rock mechanics. (Tr. 97)

In December 1995, Applicant attended a National Conference of Rock Mechanics, which happened to be in Taiwan. At the conference, among the individuals Applicant talked to was the director of the rail program; ⁽²⁾ the director offered Applicant a job. ⁽³⁾ Applicant's duties at his first job were to write proposals and provide expertise in building five tunnels. (Tr. 121) Before he began work in February 1996, Applicant was advised to get a Taiwanese passport so the personnel office of his Taiwanese employer could process his paperwork (Tr. 123-125) Although not sure about the specific reason for getting the passport, Applicant surmised there was some connection to taxes. (Tr. 127)

Besides needing the work in February 1996, Applicant also accepted the job so he could see his father who had a history of serious heart problems. (AE T) His father ultimately received an implant in November 1998.

In July 1997, Applicant stayed with the same project but transferred from the government agency to the private consulting contractor of the organization. (Tr. 130) After working there for about eight months, Applicant began working for the construction company (his third Taiwanese employer) for about six months. Applicant terminated his employment with the construction company in October 1998 because of funding problems.

Applicant returned to the US so he could see his family and try to land a job in his field. (Tr. 133) When he could not find a job, he decided to take some computer software training courses, which he completed in March 1999. (GE 1) He began working for his current employer in July 1999.

Applicant and his wife have been married for 24 years. They have two children, born in the US, one in graduate school and one in high school.

Applicant's wife renounced her Taiwan citizenship in August 2002 by surrendering her passport when the Taiwan government approved her renunciation of Taiwanese citizenship. (AE F, G) Applicant certified she returned her passport on February 11, 2003. (AE H; Tr. 72-82)Applicant initiated the same procedures in August 2002 and renounced his Taiwan citizenship by February 2003, (AE M, N, O, P) and returned his Taiwanese passport. (AE O, P)

Applicant's wife believes their home in the US is valued at about $800,000.00. She earned $128,000.00 in salary in 2001 and $137,000.00 in 2002. Applicant's wife has about $2,800.00 in one of her retirement accounts and about $77,000.00 in another retirement account. Her pension account contains about $71,000.00. According to Applicant and his wife, they have no property or bank accounts in Taiwan. In addition, there is nothing for them to inherit from Taiwan. (Tr., 85; 157)

Applicant's social security earning statement reflects earnings from 1979 to 2001. (AE W) Applicant's pension retirement fund decreased by 20% from approximately $19,000.00 since May 2002. (AE X) The employee savings and investment plan, which also contains employer ontributions, is presently valued at $50,000.00. (AE Y)

Applicant's supervisor of three years, observes Applicant daily and considers Applicant dependable, thorough, and honest. The supervisor wrote a compelling need letter for Applicant explaining why Applicant deserved a clearance. (AE B) Applicant's performance summary and appraisal strongly supports the supervisor's observations of Applicant.

Applicant's friend since 1993 believes Applicant is an honest person and a good father. (Tr. 52) Applicant's friend thinks the primary reason Applicant went to Taiwan was for the job.

Applicant's father is 83 years old and has been retired from high school teaching for 20 years. He and his wife (who has been a housewife all her life) live on a pension and a savings account. Applicant's oldest sister is a financial manager for a wholesale company owned by Taiwanese investors. (Tr. 143; AE Q, R, S) Applicant's oldest brother has been a farmer of apples and pears. Applicant's youngest sister is an office administrator of a high technical firm in Taiwan.

Applicant's younger brother lives in Canada currently. He is a software engineer who is also attending school for advanced computer science learning. (Tr. 144) The younger brother had worked for the government from about 1993 to 1998 in computer coding, but has had no contact with the government since then.

Considering the evidence as a whole, including Applicant's demeanor at the hearing, I find Applicant's credibility generally credible. While Applicant's father still has a serious heart problem, I find Applicant's real motivation for moving to Taiwan was work, so he could provide for his family. By applying for the Taiwanese passport and turning the passport into the personnel office, Applicant was demonstrating a preference for Taiwan over the United States, after he had received his US citizenship. ⁽⁴⁾ In short, he was using his Taiwanese citizenship to secure a benefit of employment from Taiwan. However, Applicant returned to the US because he wanted to reunite his family while resuming his search in the US for a job in his field. He completed six months of computer training and has been working for his current employer for over three years. Also, he completed the process for renouncing his Taiwanese citizenship pursuant to the ASD(C3I) memorandum.

Enclosure 2 of the Directive sets forth policy factors which must be given binding consideration in making security clearance determinations. These factors must be considered in every case according to the pertinent criterion; however, the factors are in no way automatically determinative of the decision in any case nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the entire realm of human experience or that the factors apply equally in every case. In addition, the Judge, as the trier of fact, must make critical judgments as to the credibility of witnesses. Factors most pertinent to evaluation of the facts in this case are:

Disqualifying Conditions:

1. The exercise of dual citizenship;

2. Possession and/or use of a foreign passport;

3. Military service or willingness to bear arms for a foreign country.

Mitigating Conditions:

1. Dual citizenship is based solely on parent's citizenship or birth in a foreign country;

2. Indicators of possible foreign preference occurred before obtaining United States citizenship;

4. Individual has expressed willingness to renounce dual citizenship.

Disqualifying Conditions:

1.An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of or present in a foreign country;

3. Relatives, cohabitants, or associates who are connected with any foreign government.

Mitigating Conditions:

1. A determination that the family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States.

Every security clearance case must also be evaluated under additional policy factors that make up the whole person concept. Those factors (found at pages 16 and 17 of Enclosure 2 of the Directive) include: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other 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.

As set forth in the Directive, every personnel security determination must be a fair and impartial overall commonsense decision based upon all available information, both favorable and unfavorable, and must be arrived at by applying the standard that the granting (or continuance) of a security clearance under this Directive may only be done upon a finding that to do so is clearly consistent with the national interest. In reaching determinations under the Directive, careful consideration must be directed to the actual as well as the potential risk involved that an applicant may fail to properly safeguard classified information in the future. The Administrative Judge can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature.

The Government must establish all the factual allegations under Guideline C (foreign preference), and Guideline B (foreign influence) which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to the sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation which demonstrates that the past adverse conduct is unlikely to repeat itself and Applicant presently qualifies for a security clearance.

Guideline C applies to an individual who acts in such a way that demonstrates a preference for a foreign country over the US. Applicant became a citizen of Taiwan by birth. He was raised and educated in that country. He received a hydraulic engineering degree and served almost two years mandatory service in the Taiwan military.

Applicant immigrated to the US in December 27, 1977 at the age of 24 and received a master's degree in civil engineering in 1983. Over the next 10 years, Applicant performed several jobs, including the operation of a construction firm. He became a US citizen in 1988. In 1993, Applicant received a PhD in nuclear rock mechanics and began working on nuclear waste project for a subcontractor to the DOE. Funds for the contract were reduced in September 1995, and Applicant was laid off from his job.

When Applicant could not find work in his specialty, he decided to take advantage of a job opportunity presented to him by a participant at the Nuclear Rock echanics Conference in Taiwan. Working in Taiwan also allowed Applicant to monitor his father's medical condition. Before beginning the job in February 2003, Applicant was informed he would have to obtain a foreign passport which would be kept on file. Whether it is characterized a consulting or employee relationship, by applying for and transferring the Taiwan passport to the personnel office, Applicant clearly demonstrated a preference for the government of Taiwan over the US within the scope of the first, second, and fourth disqualifying conditions (DC) of the foreign preference guideline. ⁽⁵⁾ This relationship lasted from February 1996 to November 1998.

There are 3 mitigating conditions (MC) which have potential application to these circumstances. Since Applicant exercised dual citizenship between 1996 and 1998, MC 1 (dual citizenship is based solely on parents citizenship or birth in a foreign country) is inapplicable. MC 2 is applicable to remove Applicant's military service in Taiwan (1975) as a security concern because it occurred before he obtained US citizenship in 1988.

MC 4 may apply where the individual has expressed a willingness to renounce dual citizenship. In August 2000, the Assistant Secretary of Defense promulgated ASD(C3I) clarifying the disqualifying condition of possession and/or use of a foreign passport. While Applicant 's use of the Taiwan passport falls under requirements of foreign law, the use occurred almost four years ago at a time when Applicant was unaware of the implications of his exercise of dual citizenship. Since he needed work to help provide for his family, the application and use of his foreign passport clearly arose out of the circumstances necessitating employment rather than any need to revive or sustain his cultural heritage. Applicant's use or his Taiwanese passport was an isolated incident and can readily be distinguished from the circumstances in ISCR Case No. 01-16419, where Applicant used his foreign and US passport to conceal his trip to the foreign country after September 11, 2001.

In support of his intention to renounce his dual citizenship, Applicant has taken documented steps to renounce his foreign citizenship. In sum, Applicant's use of his Taiwan passport from 1996 to 1998 raises security concerns under the foreign preference guideline. Those concerns are sufficiently removed by Applicant's actions since November 1998 which show a consistent preference for the US.

With respect to the foreign influence guideline, Applicant's wife was a dual citizen of Taiwan. However, his wife started the renunciation process of her Taiwanese citizenship in August 2002, and completed the process in February 2003. Her motivation was to assist her husband obtain his security clearance. Hence, while a security risk may have existed by the dual citizenship of Applicant's wife, that risk has been eliminated.

The potential risks raised by Applicant's immediate family members (2.b.) being all foreign nationals is mitigated by the persuasive testimony by Applicant and his wife concerning their present status. Applicant's mother has been a housewife all her life, and is 73 years old. Applicant's father has been retired for twenty years from the teacher profession, and is currently 83 years old.

Applicant's oldest sister is a finance manager of a retail store owned by Taiwanese investors. Applicant's oldest brother has always been a farmer. Applicant's youngest sister is an office administrator of a high tech firm in Taiwan. Applicant's younger brother lived in Taiwan and worked as a C-coding government computer consultant from about 1993 to 1988. He is currently in a Canadian school for advanced training. Having weighed all the evidence furnished by Applicant as to the status of his immediate family members, I conclude that his immediate family members are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force Applicant to choose between loyalty to the person(s) involved and the US.

Though Applicant has traveled to Taiwan between 1995 and 1998, the trips were to see his family in the US, then, return to work. Though the SOR allegation used the word 'numerous,'I only count six or seven trips in 2 ½ years. In addition, the record reflects no evidence of a sinister motive by Applicant cultivate relationships with foreign nationals or members of the foreign service. Finally, Applicant's trips occurred with his US passport. In view of the benign information about his immediate family, the financial portfolios of Applicant and his wife, and the presence of no assets or property in Taiwan, I find for Applicant under he foreign influence guideline.

In finding for Applicant under foreign preference and foreign influence guidelines, I have also considered evidence as a whole, utilizing the general policy factors under the whole person concept. Applicant demonstrated a preference for Taiwan over the US when he applied for and gave his Taiwan passport to the personnel office so he could work in Taiwan. The use of the foreign passport is aggravated by the length of time Applicant continued to exercise dual citizenship in allowing his Taiwan passport to remain on file. Even though Applicant was eager to begin work for this foreign employer while looking after his ill father, he should have used the US rather than the Taiwan passport. The prolonged and inappropriate use of the passport must be also be weighed and balanced against the fact Applicant did not possess a security clearance in February 1996, nor did he have an application on file. Applicant may not have been aware of all the implications of using the foreign passport over his American passport, particularly under the circumstances in which the passport was used. On the other hand, Applicant's conduct since November 1998 in demonstrating his overwhelming preference for the US, including his actions in successfully renouncing his Taiwan citizenship, enables me to find for Applicant under the whole person concept. The whole person concept also leads me to conclude that none of Applicant's family pose a security risk which could make Applicant a target for coercion or pressure, whereby he would have to choose between loyalty to the sources of the pressure and the US.

Formal findings required by Section 3, Paragraph 7 of the Directive are:

Paragraph 1(foreign influence): For the Applicant.

1.a. For the Applicant.

1.b. For the Applicant.

1.c. For the Applicant.

1.d. For the Applicant.

Paragraph 2 (foreign influence); For the Applicant.

1a. For the Applicant.

1.b. For the Applicant.

1.c. For the Applicant.

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.