DATE: November 1, 2002

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOHN G. METZ, JR

APPEARANCES

FOR GOVERNMENT

Kathryn D. MacKinnon, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant's retention of his foreign passport after his naturalization as a U.S. citizen--an act demonstrating potential foreign preference--was mitigated where Applicant had retained the passport only because he had never been given any instructions that he should surrender it, had not used the passport after becoming a U.S. citizen, had indicated an intent to use only his U.S. passport even before he became aware of the "Money Memo", had surrendered it in accordance with the "Money Memo" once he became aware of its provisions, and, for good measure, applied to formally renounce his foreign citizenship. Applicant's prospective foreign influence was mitigated where his contacts with his parents were infrequent, and where both parents were registered U.S. aliens who intended to emigrate to the U.S.--where both Applicant and his sister reside as U.S. citizens--after retiring from teaching. Record evidence did not suggest that he would be subject to pressure on their behalf. Clearance granted.

STATEMENT OF THE CASE

On 22 April 2002, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding ⁽¹⁾ that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On 1 May 2002, Applicant answered the SOR and requested a hearing. The case was assigned to me on 2 October 2002, and I received and set the case the same day. I issued a notice of hearing on 3 October 2002 for a hearing on 21 October 2002.

At the hearing, the Government presented two exhibits--admitted without objection--and one witness, the Applicant; Applicant presented nine exhibits, and the testimony of one witness, himself. DOHA received the transcript on 30 October 2002.

At the hearing, Department Counsel asked me to take official notice of the Money Memorandum. ⁽²⁾ Department Counsel also requested that I take official notice that on 1 July 1997 the United Kingdom lease on the British Crown Colony of Hong Kong expired and dominion, control, and the exercise of sovereignty over Hong Kong reverted to the People's Republic of China (PRC). I granted both motions (Tr. 19-21).

At the end of the hearing, Department Counsel moved to amend the SOR by amending Subparagraph 2.a. to correctly reflect the date of issue and expiration on Applicant's foreign passport (Tr. 70-71). I granted the motion (Tr. 71-72).

FINDINGS OF FACT

Applicant admitted the allegations of the SOR; accordingly I incorporate those admissions as findings of fact.

Applicant--a 25-year-old employee of a defense contractor--seeks access to classified information. He has not previously held a clearance.

Applicant--an ethnic Chinese--was born in Hong Kong in 1977, making him a citizen of the United Kingdom. He emigrated to the U.S. in 1994, when he was 17 years old. He applied for U.S. citizenship in 1999, and became a naturalized citizen in April 2000. He obtained his U.S. passport in June 2000.

Although much of Applicant's early education occurred in Hong Kong, where he completed the basic public education available, completed two years of high school in the U.S., graduating in 1996 (Tr. 26); he went on to obtain his undergraduate degree from a major U.S. university (G.E. 1). He has no financial assets in Hong Kong. He intends to remain in the U.S.

When Applicant became a U.S. citizen, he possessed a U.K. passport issued in March 1994 (when Applicant was still a citizen only of the foreign country). This passport would not expire until March 2004. Applicant used his U.K. passport to travel to Singapore and Malaysia in November 1996 and to travel to Thailand in August 1998--all dates before his naturalization as a U.S. citizen.

On 27 July 2000, Applicant executed a Security Clearance Application (SCA)(SF 86) (G.E. 1) on which truthfully disclosed his foreign connections and travel. He also indicated that he had registered with the Selective Service System as required under Federal law (question 18).

On 9 July 2001, Applicant gave a sworn statement to a Special Agent of the Defense Security Service (DSS) (G.E. 2), describing his foreign connections:

I was born in Hong Kong on 09 March 1977. My parents, [named], have been registered United States aliens since about July 1992. They are still working and residing in Hong Kong, however, they intend to move to the United States and become naturalized citizens when they retire from their jobs in Hong Kong. My sister, [named], is a naturalized citizen of the United States. My last trip to Hong Kong was in December 2000, when I visited my parents for two weeks. I have a British National (Overseas), Hong Kong, passport, [number], however, I do not intend to use it again. I was issued a United States of America passport [number], on 28 June 2002, and I will always use it for foreign travels. I never served in the Hong Kong military, and I am not willing to serve in any military except that of the United States. My foreign relatives and connections would never attempt to influence me to do anything to harm the national defense interests of the United States. When I became a naturalized citizen of the United States, I renounced my Hong Kong citizenship. I would be willing to engage in combat against Hong Kong, if same was ever necessary. My loyalty is totally to the Constitution of the United States without any reservations whatsoever.

In his 1 May 2002 Answer to the SOR, admitted possessing a U.K. passport, but expressed a desire to dispose of it:

I have no intention of keeping the British passport. When I received my US Passport, there were no instructions regarding disposal of previous passports. I have not used it since becoming a US citizen. In addition, the British Passport expires on May 19 2003, not 14 January 2005 as stated in the Statement of Reasons. I would like to request your help in disposing of it properly.

True to his stated intent, Applicant contacted Department Counsel and obtained information on how to dispose of his passport (Tr. 29-32). Applicant contacted the British Embassy, completed the necessary application to renounce his U.K. citizenship, and surrendered his U.K. passport (A.E. C, Tr. 32). Applicant provided a copy of his U.K. passport, which confirms his date of emigration to the U.S. as well as his last use of the passport before becoming a U.S. citizen (A.E. A). A copy of his U.S. passport corroborates his assertion that he has used only his U.S. passport since becoming a U.S. citizen (A.E. B).

Applicant's mother and father still reside in Hong Kong (Tr. 35), however, both have applied for renewal of their alien registration, and plan to emigrate to the U.S. when they retire (A.E. D., E.; Tr. 44-46, 69). Applicant visits them periodically, but has otherwise been independent of them since emigrating to the U.S. (Tr. 42). Both parents are teachers, father in a secondary school (A.E. F., Tr. 38-39), mother in an elementary school (A.E. G., H.; Tr. 38-39). Applicant's only sibling is a U.S. citizen, residing in the U.S. (A.E. I, Tr. 41).

At the hearing, Applicant testified consistently with his sworn statement about his foreign connections. He has no connection with the PRC (Tr. 25) or with the U.K. beyond his growing up in Hong Kong (Tr. 29-30). He testified credibly that he considers himself a citizen of the U.S. only. He testified that it was not until he received the SOR that he had any idea of the need to surrender his U.K. passport, or how to request assistance in surrendering it (Tr. 29).

The record contains no evidence of Applicant's work performance or character references.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section F.3. and in Enclosure (2) of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc.

Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case:

E2.A3.1.1 The Concern: 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.

E2.A3.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A3.1.2.2. Possession and/or use of a foreign passport;

E2.A.1.3. Conditions that could mitigate security concerns include:

E2.A3.1.3.4. Individual has expressed a willingness to renounce dual citizenship.

E2.A2.1.1. The Concern: A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

E2.A2.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A2.1.2.1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident in, a foreign country;

E2.A2.1.3. Conditions that could mitigate security concerns include:

E2.A2.1.3.1. A determination that the immediate family member(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.

On 16 August 2000, the Assistant Secretary of Defense, Command, Control, Communications, and Intelligence (ASD, C³I) issued a memorandum(the "Money emo") to clarify the application of Guideline C., Foreign Preference, to cases involving possession and/or use of a foreign passport. In pertinent part, the ASD, C³I memorandum "requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government."(Emphasis added).

Burden of Proof

Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. Assessment of an applicant's fitness for access to classified information requires evaluation of the whole person, and consideration of such factors as the recency and frequency of the disqualifying conduct, the likelihood of recurrence, and evidence of rehabilitation.

A person who seeks access to classified information enters into a fiduciary relationship with

the U.S. Government that is predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability, or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSIONS

Although Applicant possessed a U.K. passport after his naturalization in 2000, he has not exercised dual citizenship with the U.K. While his U.S. citizenship oath may not operate to terminate his U.K. citizenship under U.K. law, his foreign citizenship possesses little security significance if based solely on his birth in a foreign country. For Applicant's conduct to fall within the security concerns of Guideline C, Foreign Preference, he must have acted in a way to indicate a preference for a foreign nation over the United States. However, inimical intent or detrimental impact on the interests of the United States is not required before the Government can seek to deny access under Guideline C. The Government has a compelling interest in ensuring those entrusted with this Nation's secrets will make decisions free of concerns for the foreign country of which they may also be a citizen. Under this assessment, I conclude the Government has established its case under Guideline C. Nevertheless, I conclude that Applicant has mitigated the security concerns.

Applicant convincingly asserts that he prefers his U.S. citizenship. The single instance of conduct to the contrary--retaining his U.K. passport after becoming a U.S. citizen--is mitigated by a number of factors. First, he credibly asserts that retained the passport only because he did not know what else to do with it, and had no reason to know that he should dispose of it. Second, he never used the passport; even when traveling to Hong Kong he used his U.S. passport. Third, before becoming aware of the specifics of the "Money Memo," he intended to use only his U.S. passport for foreign travel. Finally, when he became aware of the requirements of the "Money Memo," he sought information on how to surrender his U.K. passport, then not only surrendered the passport to the British Embassy, but submitted an application to renounce his U.K. citizenship, an action not strictly required by the mitigating factor. Further, Applicant stated a clear willingness to serve only in the military of the U.S., an assertion made more credible by Applicant's registering as required with the Selective Service System.

Applicant has resided in the U.S. since he was 17 years old and completed significant portions of his education in the U.S. His sister resides here, and Applicant's parents intend to emigrate when they retire from teaching. He has no ties to the PRC and none to the U.K. beyond growing up in Hong Kong, which no longer belongs to the U.K. His national preference seems overwhelmingly for the U.S., a conclusion reinforced by his application to formally renounce his U.K. citizenship. In addition, I found Applicant's testimony that he considers himself a citizen of the U.S. only to be credible. Accordingly, I resolve Guideline C. for Applicant.

In a similar fashion, the Government has established its case under Guideline B., but I consider the security concerns mitigated. Applicant's mother and father are U.K. citizens, living in Hong Kong, but have been U.S. registered aliens and have applied to renew that status. They intend to emigrate to the U.S. when they retire, and presumably will have that opportunity because of the U.S. citizenship of Applicant and his sibling. Applicant is financially independent of his parents; and they of him. The parents were teachers when the U.K. exercised control over Hong Kong and thus unlikely to have been agents of a foreign power. They remain teachers under the new regime, and unlikely to have become agents of the new sovereign. Further, despite the reversion of Hong Kong to the PRC--which does increase the potential for exploitation--there is nothing in the record to suggest that the parents' relationship with Applicant, or their positions as teachers in Hong Kong, is such that Applicant would be forced to chose between his duty to his parents and his duty to the U.S. Accordingly, I resolve Guideline B. for Applicant.

Paragraph 1. Guideline B: FOR THE APPLICANT

Subparagraph a: For the Applicant

Paragraph 2. Criterion C: FOR THE APPLICANT

Subparagraph a: 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.

1. Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated 2 January 1992--amended by Change 3 dated 16 February 1996 and by Change 4 dated 20 April 1999 (Directive).

2. The 16 August 2000 memorandum of the Assistant Secretary of Defense, Command, Control, Communications, and Intelligence (ASD, C³I), so-called the "Money Memorandum" because it is signed by Assistant Secretary Arthur L. Money.