DATE: February 27, 2004
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JAMES A. YOUNG
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant's father is a naturalized U.S. citizen who resides in Taiwan. Her maternal aunts and cousins are Taiwanese citizens and residents. Applicant renounced her Taiwanese citizenship but maintains a Taiwanese passport contrary to the dictates of the Money Memo. Applicant failed to sufficiently mitigate the foreign influence and foreign preference security concerns. Clearance is denied.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. DOHA issued an undated Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). Applicant answered the SOR in writing on 9 September 2003 and elected to have the case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on 24 November 2003. A complete copy of the file of relevant material (FORM) was provided to Applicant, and she was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant received the FORM on 11 December 2003 and responded on 30 December 2003. The case was assigned to me on 19 February 2004.
FINDINGS OF FACT
Applicant's father was born in the People's Republic of China (PRC). He became a naturalized U.S. citizen in 1972. Applicant's mother was born in the Republic of China (Taiwan) and became a naturalized U.S. citizen in 1997. Applicant and her brother were born in the ROC in 1976 and 1975, respectively. They are U.S. citizens born abroad of a U.S. parent.
Applicant's father lives in Taiwan where he taught at the National Taiwan University since before Applicant was born. He is now retired. Applicant sees him "about twice a year" and has infrequent telephone conversations with him. Applicant's mother resides in the U.S. and twice a year visits her husband (Applicant's father), her aging mother (a citizen and resident of Taiwan), and the rest of her family in Taiwan. Many of Applicant's aunts and cousins are citizens and residents of Taiwan. Applicant has contact with her grandmother, aunts, and cousins only about once a year.
Applicant admitted dual U.S.-Taiwanese nationality as a result of her birth in Taiwan to a U.S. citizen. Applicant applied to renounce her Taiwanese citizenship and it was granted on 17 December 2003. Applicant possesses a Taiwanese passport that is set to expire in July 2005. She acquired the passport to enable her to have a medical procedure performed in Taiwan because she thought it might be cheaper. Applicant determined the costs were similar in the U.S. and Taiwan, so she decided to have the procedure performed in the U.S. She has never actually used the Taiwanese passport. Applicant provided a signed, sworn statement that she will not use the Taiwanese passport or claim any privileges granted by said passport.
POLICIES
"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.
Enclosure 2 of the Directive sets forth personal security guidelines, as well as the
disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.
Initially, the Government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. "[T]he Directive presumes there is a nexus or rational connection between proven conduct under any of the Criteria listed therein and an applicant's security suitability." ISCR Case No. 95-0611 at 2 (App. Bd. May 2 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)).
Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531; see Directive ¶ E2.2.2.
CONCLUSIONS
Guideline B-Foreign Influence
In the SOR, DOHA alleged the following foreign influence concerns: Applicant's father is a U.S. citizen residing in Taiwan (¶ 1.a.); her grandmother (¶ 1.b.) and aunts and cousins (¶ 1.d.) are citizens and residents of Taiwan; and her mother, a U.S. citizen travels to Taiwan twice a year to visit her husband, Applicant's father (¶ 1.c.). A security risk may exist when an applicant's immediate family and other persons to whom she may be bound by affection, influence, or obligation are not citizens of the U.S. or may be subject to duress. Directive ¶ E2.A2.1.1.
The Government established by substantial evidence and Applicant's admissions each of the allegations set forth in the SOR ¶ 1. A member of Applicant's immediate family (her father) resides in Taiwan. Persons to whom she has close ties of affection or obligation (her grandmother, aunts, and cousins) are citizen residents of Taiwan. DC E2.A2.1.2.1. Applicant's mother visits her husband (Applicant's father) in Taiwan twice a year and has many relatives in Taiwan. This places her in a position to influence Applicant concerning those relatives in Taiwan. Under the circumstances, none of the mitigating conditions under this guideline apply to Applicant's case. Although there is no evidence that her relatives work for the government (although her father worked for the National Taiwan University), Applicant failed to establish that her foreign contacts are not in a position to be exploited by a foreign power in a way that could force her to choose between loyalty to the associate and loyalty to the U.S. I find against Applicant.
Guideline C-Foreign Preference
In the SOR, DOHA alleged Applicant is a dual citizen of the U.S. and Taiwan (¶ 2.a.) and possesses a Taiwanese passport that will not expire until July 2005 (¶ 2.b.). When an applicant acts in such a way as to indicate a preference for a foreign country over the U.S., she may be prone to provide information or make decisions that are harmful to the interests of the U.S. Directive ¶ E2.A3.1.1.
The Government established by substantial evidence and Applicant's admissions that she was a dual U.S.-Taiwan national who exercised her dual citizenship by obtaining a Taiwanese passport which she still possesses. DC E2.A3.1.2.1; E2A3.1.2.2. Although she was a dual citizen as a result of her birth in Taiwan of a U.S. citizen parent (MC E2.A3.1.3.1.), Applicant's exercise of her Taiwanese citizenship by seeking a Taiwanese passport when she already had a U.S. passport is evidence of a preference for Taiwan over the U.S.
It is evident Applicant considers herself a U.S. citizen. She has renounced her Taiwanese citizenship. Such a step is a matter in mitigation. MC E2.A3.1.3.4. I find for Applicant on ¶ 2.a.
A clearance must "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." Memo. from Arthur L. Money, Asst Sec. Def. Command, Control, Communications, and Intelligence, to Directors of Defense Agencies, Guidance to DoD Central Adjudication Facilities (CAF) Clarifying the Application of the Foreign Preference Adjudicative Guideline (Aug. 16, 2000). Applicant's formal renunciation of her Taiwanese citizenship should invalidate her Taiwanese passport. Nevertheless, it could still probably be used to travel to many parts of the world. Applicant's failure to provide evidence she surrendered her Taiwanese passport to the issuing authority precludes me from finding for her on ¶ 2.b. Cf. ISCR Case No. 01-24306 at 5 (App. Bd. Sep. 30 2003 (Money Memo requires surrender of the passport to the issuing authority even if it has recently expired.).
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline B: AGAINST APPLICANT
Subparagraph 1.a.: Against Applicant
Subparagraph 1.b.: Against Applicant
Subparagraph 1.c.: Against Applicant
Subparagraph 1.d.: Against Applicant
Paragraph 2. Guideline C: AGAINST APPLICANT
Subparagraph 2.a.: For Applicant
Subparagraph 2.b.: Against Applicant
DECISION
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 or continue a security clearance for Applicant. Clearance is denied.
James A. Young
Administrative Judge
1. Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.