DATE: April 13, 2006
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ERIN C. HOGAN
APPEARANCES
FOR GOVERNMENT
Richard A. Stevens, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant is a naturalized United States citizen who was born in the People's Republic of China (PRC). Concerns were raised because his parents, brother, friends and extended family members are citizens of and reside in the PRC. Applicant maintains frequent contact with his immediate family members who reside in the PRC. Security concerns under foreign influence remain. Clearance is denied.
STATEMENT OF CASE
On April 29, 2005, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) stating they were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. (1) The SOR, which is in essence the administrative complaint, alleges security concerns under Guideline B, Foreign Influence.
In a sworn statement dated May 19, 2005, Applicant responded to the SOR allegations. He requested a decision based on the written record. Department Counsel submitted the government's file of relevant material (FORM) on December 14, 2005. The FORM was mailed to Applicant on December 16, 2005, and received on December 19, 2005. Applicant was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant responded on January 10, 2006. The case was assigned to me on January 23, 2006.
FINDINGS OF FACT
Applicant admits to all of the SOR allegations. He is 35 years old and is a software engineer for a defense contractor. He submitted a security clearance application on September 3, 2002. (Item 4.)
Applicant was born in the People's Republic of China (PRC). He moved to the United States in December 1989. (Item 6, p.5.) He joined the United States Air Force on March 22, 1995. He separated from the Air Force as a Senior Airman on March 23, 1999, with an honorable discharge. (Item 1, p.6.) He became a United States citizen on November 19, 1999. (Item 6, p.6.)
Applicant's parents and brother are citizens of and reside in the PRC. His parents are both retired senior engineers. (Item 6, p.3.) No information was provided pertaining to his brother's occupation. He contacts his parents by telephone. He speaks with his mother once a week and with his father about once a month. He contacts his brother about once a week over the Internet. (Item 6, p.4.)
Applicant has several aunts and uncles who are citizens and reside in the PRC. He has no communication with any of them with the exception of a maternal aunt who takes care of his grandmother. He calls his aunt about every three months to see how his grandmother is doing. Id.
Applicant still communicates with a high school friend who is a citizen of and resides in the PRC. He communicates over the Internet with his friend. He communicated with his friend on a monthly basis but his contacts have become less frequent since his friend and his wife started a family. (Item 6, p.4-5.) He occasionally communicates with three other PRC citizens who reside in the United States. Each of these individuals are studying at various universities in the United States. (Id.)
Applicant has visited the PRC three times since immigrating to the United States. His visits occurred in 1994, 2000, and 2001. The purpose of these trips was to visit relatives and sightsee. (Item 5, p.2.)
Applicant's family suffered greatly during the cultural revolution. (Item 6 at 3.) In 1989, as a student in the PRC, he was involved in the pro-democracy movement. (Id.) He became a Christian while residing in China and claims his religious beliefs put him in a bad situation. (Id.) His parents have visited him in the United States on two occasions. (Response to FORM, dated January 10, 2006) They were previously restricted from traveling to the United States while they were employed as senior engineers. The PRC government had a policy to prevent 'brain drains.' (Item 6 at 3.)
The PRC government is known for its human rights abuses, including intolerance of dissent and the legal inadequacy of legal safeguards for basic freedoms. (Item 7 at p.9.) The PRC government is known to focus intelligence collection efforts on the United States, especially pertaining to acquiring advanced military and civilian technology with a desire to improve their economic position in the global economy. (Item 9.)
POLICIES
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." (Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).) In Executive Order 10865 Safeguarding Classified Information Within Industry (Feb. 20, 1960), the President set out guidelines and procedures for safeguarding classified information within the executive branch.
To be eligible for a security clearance, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. The adjudicative guideline at issue in this case is:
Guideline B, Foreign Influence: 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. Contact 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. (Directive ¶ E2.A2.1.1.)
Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns pertaining to this adjudicative guideline, are set forth and discussed in the conclusions below.
"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." (Directive, ¶ E2.2.1.) An administrative judge must apply the "whole person concept," and consider and carefully weigh the available,
reliable information about the person. (Id.) An administrative judge should consider the following factors: (1) the nature, extent, and seriousness of the conduct;
(2) the circumstances surrounding the conduct, to include knowledgeable participation; (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 pertinent 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.
(Id.)
Initially, the Government must present evidence to establish controverted facts in the SOR that disqualify or may disqualify the applicant from being eligible for access to classified information. (Directive, ¶ E3.1.14.) Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts. (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).) "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." (Directive, ¶ E2.2.2.)
A person granted access to classified information enters into a special relationship with the government. The government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. (Exec. Ord. 10865, § 7.) It is merely an indication that the applicant has not met the strict guidelines the President has established for issuing a clearance.
CONCLUSIONS
I have carefully considered all the facts in evidence and the legal standards. Under the foreign influence concern, a potentially disqualifying condition is raised with respect to Applicant's father, mother, and brother since they are citizens of and reside in the PRC. As such, Foreign Influence Disqualifying Condition (FI DC) 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 or present in, a foreign country) applies. FI DC 1 also applies with respect to his relationship with his aunt and grandmother since it is apparent that Applicant has close ties of affection to his grandmother and aunt based on his contact with them every three months.
The foreign influence concern can be mitigated. Foreign Influence Mitigating Condition (FI MC) E2.A2.1.3.1: (A determination that immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associates 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 the loyalty to the person(s) involved and the United States) is potentially applicable to this case. Not enough information has been provided about Applicant's family members to make a conclusion that they are not agents of a foreign power. The first prong of MC 1 is not met since insufficient information has been provided.
Since Applicant's immediate family members are citizens of and reside in the PRC, a country whose interests often conflict with the United States, he has a very heavy burden of showing that these family members do not pose a security risk. (ISCR Case No. 01-26893 (October 16, 2002)) Applicant has not met the second prong of MC 1 since his immediate relatives residing in the PRC have the potential to be exploited by a foreign power that could force him to chose between the loyalty to his family members and the United States.
Applicant has regular contact with his parents and brother. He talks to his mother and brother at least once a week and his father once a month. He communicates with them over the telephone and the Internet. I cannot apply FI MC E2.A2.1.3.3: (Contact and correspondence with foreign citizens are casual and infrequent) since he has regular contact with his parents and brother. Furthermore, his visits to the PRC to visit family members as well his parents' visits to him in the United States indicate that his contacts and correspondence with his family members are not casual or infrequent.
Applicant contacts a high school friend who still resides in the PRC about once a month over the Internet. The frequency of contact has decreased. Although he has regular contact, it does not appear that his relationship with his friend would make Applicant potentially vulnerable to coercion, exploitation or pressure. He occasionally communicates with other PRC citizens who are studying in the United States. His relationship with these friends do not raise a security concern. I find for the Applicant with respect to SOR ¶¶1.c.
In all adjudications, the protection of our national security is the paramount concern. The objective of the security-clearance process is the fair-minded, common sense assessment of a person's life to make an affirmative determination that the person is eligible for a security clearance. Indeed, the adjudicative process is a careful weighing of a number of variables in considering the "whole person" concept. It recognizes that we should view a person by the totality of their acts, omissions, motivations and other variables. Each case must be adjudged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis.
Despite Applicant's honorable service in the United States Air Force and his assurances that he is not a security risk, his relationship with his immediate family members who are citizens of and reside in the PRC make him vulnerable to foreign influence which could result in the compromise of classified information. I considered all the evidence provided and also considered the "whole person" concept in evaluating Applicant's risk and vulnerability in protecting our national interests. I find Applicant has not mitigated the foreign influence security concerns. Therefore, I am persuaded by the totality of the evidence in this case, that it is not clearly consistent with the national interest to grant Applicant a security clearance. Accordingly, Guideline B is decided against Applicant.
FORMAL FINDINGS
Formal Findings for or against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline B: AGAINST APPLICANT
Subparagraph 1.a. Against Applicant
Subparagraph 1.b. Against Applicant
Subparagraph 1.c. For Applicant
Subparagraph 1.d. Against Applicant
Subparagraph 1.e Against Applicant
DECISION
In light of all 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.
Erin C. Hogan
Administrative Judge
1. This action was taken under Executive Order 10865, dated February 20, 1960, as amended, and DoD Directive 5220.6, dated January 2,1992, as amended and modified (Directive).