DATE: August 29, 2003

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

DARLENE LOKEY ANDERSON

APPEARANCES

FOR GOVERNMENT

Jennifer I. Campbell, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant's close and continuing foreign contacts, including his wife, who is a citizen of Hong Kong, China and his parents-in-law and two brothers-in-law who are citizens of and reside in Hong Kong, China create the potential for foreign influence that could make him vulnerable to coercion, exploitation or pressure. The Applicant and his wife have created a financial interest in Hong Kong, China by sending $9,600.00 a year to their family there for several years. This shows a strong emotional attachment to their foreign national relatives, which creates the potential for foreign influence that could result in the compromise of classified information. Sufficient mitigation has not been shown. Clearance is denied.

STATEMENT OF THE CASE

On February 28, 2003, 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 the 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 March 17, 2003, and requested a hearing before a DOHA Administrative Judge. This case was transferred to the undersigned on July 8, 2003. A notice of hearing had been previously issued on June 25, 2003, scheduling the hearing for July 15, 2003. At the hearing the Government presented five exhibits. The Applicant presented four exhibits and he called one witness. He also testified on his own behalf. The official transcript (Tr.) was received on July 28, 2003.

The following Findings of Fact are based on Applicant's Answer to the SOR, the nine exhibits and testimony from one witness besides himself. The Applicant is 28 years of age and holds a Bachelors Degree in Mechanical Engineering. He is employed as a Systems Engineer for a defense contractor. He seeks a security clearance in connection with his employment in the defense industry.

Paragraph 1 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

The Applicant was born in China in 1975. He immigrated to the United States at the age of twelve with his parents and one younger brother. The Applicant attended college in the United States and became a citizen in 1994. In 1992, the Applicant traveled to Japan to participate in a work study program for a three week period. In 1996, he again traveled to Japan, this time for a one year study program that was sponsored by the United States Department of Defense. During this trip to Japan, he met his wife, a citizen of Hong Kong, China, who worked as an office manager for a credit card company. They were married in October 2000, and they moved to the United States. Except for two extended trips to Japan, he has lived permanently in the United States since 1986.

The Applicant's wife is a citizen of Hong Kong, China. The Applicant testified that his wife presently has a conditional green card and will be applying for her United States citizenship as soon as she is eligible.

The Applicant's parents-in-law and brothers-in-law are citizens of and reside in Hong Kong, China. The Applicant's father-in-law is employed as a cook during the day and a parking lot attendant at night. His mother-in-law is a homemaker. The Applicant's oldest brother-in-law is a janitor, and his youngest brother-in-law works for the subway system in Hong Kong, China. Given the depressed economic conditions in Hong Kong, China the Applicant and his wife send about $800.00 a month through a bank wire transfer to help support her family in Hong Kong, China. (Tr. pp. 42-43). They have been doing this for several years. The Applicant also has other extended family members that are citizens of and reside in China, including an aunt and uncle. The Applicant's travels to Hong Kong, China on an annual basis at which time he visits his family there.

A Senior Vice President of the company, who is also one of the Applicant's second level supervisors testified that he has known the Applicant for the past three and a half years and the Applicant has consistently demonstrated the highest degree of moral integrity. He is considered an extremely hardworking, loyal American. (Tr. pp. 25-31).

Four letters of recommendation submitted on behalf of the Applicant from an Assistant Vice President of the company, who is presently his manager, another division manager, a past coworker and supervisor, and a retired Navy Chief Warrant Officer all indicate that the Applicant is a highly respected individual. He is uniquely qualified to perform a required task for their company that includes his tri-lingual ability (Japanese, English and Cantonese), and he is a skilled structural/mechanical engineer. They consider him to be extremely ethical, honorable and trustworthy. (See, Applicant's Exhibits A, B, C, and D).

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on her own common sense. 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:

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: (1) not citizens of the United States or (2) may be subject to duress. These situations could create the potential for foreign influence that 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.

Conditions 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;

8. A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence.

Conditions that could mitigate security concerns:

None.

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 general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

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 criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information.

The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have 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."

The Government must make out a case under Guideline B (Foreign Influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to 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 be repeated, and that the Applicant presently qualifies for a security clearance.

An individual who demonstrates a foreign preference and has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. The mere possession of a foreign passport raises legitimate questions as to whether the Applicant can be counted upon to place the interests of the United States paramount to that of another nation. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

Having considered the evidence in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR, and that Applicant's foreign preference have a direct and negative impact on his suitability for access to classified information.

The Applicant has a number of relatives to whom he has close ties of affection or obligation in Hong Kong, China. These foreign ties or contacts include his parents-in-law and his two brothers-in-law who could potentially influence him. The Applicant's wife, with whom he resides, is a citizen of Hong Kong, China. Although the Applicant owns no real estate and has no bank accounts in Hong Kong, he has created a financial interest in China by sending $9,600.00 a year for several years to his in-laws. The substantial amount of money he sends to China shows that he has a strong emotional attachment to his in-laws. Thus, there is a possibility that a situation could arise that could create the potential for foreign influence that could result in his compromise of classified information. Under the particular facts of this case, the Applicant's request for a security clearance must be denied under Guideline B.

Considering all the evidence, the Applicant has met not the mitigating conditions of Guidelines B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guidelines B.

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: Against the Applicant.

Subparas. 1.a.: Against the Applicant

1.b.: Against the Applicant

1.c.: Against the Applicant

1.d.: Against the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interests to grant or continue a security clearance for the Applicant.