DATE: May 13, 2003

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

WILFORD H. ROSS

APPEARANCES

FOR GOVERNMENT

Melvin A. Howry, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

The Applicant has destroyed her Chinese passport, and returned it to the Chinese consulate. She never used the passport after becoming an American citizen. Her parents and brother are Chinese citizens. However, all three of the them now reside permanently in the United States and there is no evidence that they are agents of a foreign power or in a position to pressure or coerce the Applicant. Adverse inference is overcome. Clearance is granted.

On December 17, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 (as amended) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The Applicant responded to the SOR in writing on January 6, 2003, and requested a hearing. The case was received by the undersigned on January 23, 2003, and a Notice of Hearing was issued on February 19, 2003.

A hearing was held on February 28, 2003, at which the Government presented four documentary exhibits. Testimony was taken from the Applicant, who also submitted two hearing exhibits and one post-hearing exhibit. Applicant's Exhibit C consists of excerpted pages from the Applicant's American passport. The transcript was received on March 19, 2003.

The Applicant is 31, married and has a Bachelor of Science degree. She is employed by a defense contractor as a software engineer, and she seeks to obtain a security clearance in connection with her employment in the defense sector.

The Government opposes the Applicant's request for a security clearance, based upon the allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR. They are based on the Applicant's Answer to the SOR, the exhibits and the live testimony.

Paragraph 1 (Guideline Foreign Preference). The Government alleges in this paragraph that the Applicant is ineligible for clearance because she has acted in such a way as to show a preference for another country over the United States.

The Applicant was born in the People's Republic of China in 1972. She came to the United States in 1995, after marrying an American citizen. The Applicant became an American citizen herself in August 1999. When the Applicant came to the United States she had a Chinese passport. This passport was renewed in December 1998 for a period ending in 2004. (Government Exhibit 4 at 3.)

The record shows that the Applicant was provided with a copy of the Memorandum dated August 16, 2000, from Arthur L. Money, Assistant Secretary of Defense for Command, Control, Communications and Intelligence. The Subject of this Memorandum is, "Guidance to DoD Central Adjudication Facilities (CAF) Clarifying the Application of the Foreign Preference Adjudicative Guideline." (Government Exhibit 2.)

On January 27, 2003, the Applicant destroyed her Chinese passport. This event was witnessed by her company's facility security officer. (Applicant's Exhibit A at 1-7.) The Applicant then mailed the destroyed passport to the Chinese Consulate. (Applicant's Exhibit A at 8-10.) (Transcript at 33-37.)

The Applicant received a United States passport in September 1999. Since that time she has made two trips to China. For each of these trips she used her United States passport. (Applicant's Exhibit C.)

Paragraph 2 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because she has family members who are not citizens of the United States or may be subject to duress.

The Applicant's mother and father are both Chinese citizens. Both of them are retired engineers. In the Summer of 2002 they moved to the United States and live with the Applicant. Both of them are permanent residents of the United States and have "green cards." (Applicant's Exhibit B at 1-4.) They intend on living in the United States for the rest of their lives and becoming citizens when eligible. (Transcript at 39-40.)

The Applicant's brother is also a citizen of China. He has lived in the United States for approximately five years. The brother currently is living with the Applicant. He applied for permanent resident status in the United States in 2001. (Applicant's Exhibit B at 5.)

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive, has set forth policy factors which must be given "binding" consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent guideline. However, the factors are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense, as well as his knowledge of the law, human nature and the ways of the world, in making a reasoned decision. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Guideline C (Foreign preference)

Condition that could raise a security concern:

(2) Possession and/or use of a foreign passport;

Condition that could mitigate security concerns include:

(2) Indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;

Guideline B (Foreign influence)

Condition that could raise a security concern:

(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 or present in, a foreign country;

Condition that could mitigate security concerns include:

(1) A determination that the immediate 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;

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, "In evaluating the relevance of an individual's conduct, the [Administrative Judge] should consider the following factors [General Factors]:

a. The nature, extent and seriousness of the conduct

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual's age and maturity at the time of the conduct

e. The voluntariness of participation

f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence."

The eligibility guidelines established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours a day. The Government is therefore appropriately concerned where available information indicates that an Applicant for clearance may be have foreign connections or exhibit a preference for a foreign country that demonstrates poor judgement, untrustworthiness or unreliability on the Applicant's part.

The DoD Directive states, "Each adjudication is to be an overall common sense determination based upon consideration and assessment of all available information, both favorable and unfavorable, with particular emphasis placed on the seriousness, recency, frequency, and motivation for the individual's conduct; the extent to which conduct was negligent, willful, voluntary, or undertaken with the knowledge of the circumstances or consequences involved; and, to the extent that it can be estimated, the probability that conduct will or will not continue 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. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order...shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned."

It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the granting of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him or her a security clearance.

In this case the Government has met its initial burden of proving by substantial evidence that the Applicant possessed a Chinese passport after becoming a citizen of the United States (Guideline C); and that her parents and brother are Chinese citizens (Guideline B).

The Applicant, on the other hand, has successfully mitigated the Government's case. Turning first to her possession of a Chinese passport. The Applicant did not use this passport after becoming an American citizen. Her American passport contains Chinese visas for two trips to China, one which occurred this year. Once she was informed that she could no longer possess this passport, she destroyed it in sight of her security officer and returned it to the Chinese Consulate. Guideline C is found for the Applicant.

The Applicant's parents are retired, and her brother has resided in the United States for almost five years. There are no indicators that they are agents of a foreign power. The Applicant has taken the proper steps to have her parents and brother reside in the United States permanently. I have weighed the fact that these three people continue to be Chinese citizens against their actions indicating a desire to remain in the United States permanently. Their conduct, and the Applicant's, has mitigated the security significance of their citizenship. Guideline B is found for the Applicant.

On balance, it is concluded that the Applicant has successfully overcome the Government's case opposing her request for a DoD security clearance. Accordingly, the evidence supports a finding for the Applicant as to the factual and conclusionary allegations expressed in Paragraphs 1 and 2 of the Government's Statement of Reasons.

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive, are:

Paragraph 1: For the Applicant.

Subparagraph 1.a.: For the Applicant.

Paragraph 2: For the Applicant.

Subparagraph 2.a.: For the Applicant.

Subparagraph 2.b.: 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 the Applicant.

Wilford H. Ross

Administrative Judge