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ISCR Case 06-18097.a1 — CASE

ISCR Case 06-18097.a1denied

Case Headnote

ISCR Case No. 06-18097.a1

Dec 4, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen applicant was denied a security clearance under Guideline B (Foreign Influence) due to concerns stemming from family ties in China. The judge identified disqualifying conditions, specifically AG ¶ 6(a) and AG ¶ 6(b), related to the applicant's financial support for her parents residing in China.

The denial was based on the finding that the applicant did not demonstrate sufficient loyalty to the United States. The judge determined that the financial support provided to family in China, an authoritarian regime known for collecting sensitive information about the U.S., raised plausible security concerns.

While mitigating condition AG ¶ 8(b) was considered, it was not sufficient to overcome the security risks. The judge concluded that the applicant's personal unhappiness with China's actions did not equate to a commitment to U.S. national security interests, ultimately leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 6(a)raisedForeign Influence
AG ¶ 6(b)raisedForeign Influence

Mitigating

AG ¶ 8(b)rejectedMitigating ConditionThe applicant's financial support to her parents did not mitigate the security concerns.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 26, 2006
Answer filed—
Hearing heldJul 27, 2007
Decision dateDec 4, 2007

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
The Impact of Family Ties in Authoritarian Regimes on Security Clearance Decisions
The Necessity of Demonstrating Loyalty to the U.S. in the Context of Foreign Influence

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on foreign influence concerns under Guideline B. The applicant argued that the judge erred in not applying a mitigating condition. The Board affirmed the judge's decision, finding no harmful error in the denial of the clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert J. Tuider — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant alleged that the Judge erred by not applying Guideline B Mitigating Condition 8(b) in her case.

Why the Board ruled this way

The Board found that the Administrative Judge's conclusions were sustainable based on the evidence presented, including concerns about the applicant's ties to family in China and the implications for national security.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
William S. Fields

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline B DIGEST: The Judge found that China has an authoritarian regime and actively collects military , economic, proprietary and industrial information about the U.S. The Judge found that Applicant sends her parents $1000 to $2000 a year. Applicant’s unhappiness with China’s conduct is not necessarily synonymous with ties to the United States, nor is it indicative of a history of compliance with security procedures and regulations in the context of dangerous high risk circumstances in which Applicant had made a significant contribution to national security. CASENO: 06-18097.a1 DATE: 12/04/2007 DATE: December 4, 2007 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-18097

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Richard Murray, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 26, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On July 27, 2007, after the hearing, Administrative Judge Robert J. Tuider denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant alleges that the Judge erred by not applying Guideline B Mitigating Condition 8(b) in Applicant’s case. Applicant’s argument is unpersuasive. A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance a security clearance. See, Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the government presents evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 05- 03635 at 3 (App. Bd. Dec. 20, 2006). In this case, the Judge wrote that Applicant has not demonstrated a “sufficient relationship and loyalty to the United States that she can be expected to resolve any conflict of interest in favor of the U.S.” In challenging that conclusion, Applicant relies on her (and her husband’s) acquisition of U.S. citizenship in response to the events in Tianamen Square. The Judge’s conclusion is sustainable for three reasons: The Judge found that China has an authoritarian regime, with a poor human rights record and practices arbitrary arrest and prisoner mistreatment. He also found that China aggressively competes with the United States and actively collects military, economic, proprietary and industrial information about the U.S. Given those findings there is a plausible concern that the presence of Applicant’s family members in China could present a security concern. Applicant’s sense of obligation to her parents in China is substantiated without need to consider rebuttable presumptions. The Judge found that Applicant sends her parents $1000 to $2000 a year. Applicant’s husband sends his mother in China comparable amounts. Applicant’s unhappiness with China’s conduct in the Tianamen Square events is not necessarily synonymous with ties to the United States. Nor is it indicative of a history of compliance with security procedures and regulations in the context of dangerous, high-risk circumstances in which the applicant had made a significant contribution to national security. Cf. ISCR Case No. 04- 02511 at 4 (App. Bd. Mar. 20, 2007). Applicant also challenges the Judge’s whole person analysis on analogous grounds. The reasoning above applies to that challenge.

Thus, the Administrative Judge did not err in denying Applicant a clearance.

ORDER

The decision of the Administrative Judge denying Applicant a clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board