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ISCR 06-19923.a1: Guideline B security clearance appeal, denied (2008) · CASE

ISCR Case 06-19923.a1denied

Case headnote

ISCR Case No. 06-19923.a1

Feb 28, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant representing himself was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated security concerns related to close family ties in Taiwan. The appeal board affirmed the judge's decision, emphasizing the importance of national security.

The denial stemmed from the applicant's family ties in Taiwan, which created a potential conflict of interest and vulnerability to coercion, aligning with Disqualifying Condition AG B1. While Mitigating Condition AG B2 was considered, it was not sufficiently applied.

The judge's findings regarding the applicant's immigration and citizenship dates were supported by substantial evidence. Ultimately, the applicant failed to demonstrate that these findings were unreasonable or arbitrary, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B2rejectedMitigating ConditionsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.

Key rule quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
Directive ¶ E3.1.15.

Procedural posture

SOR issuedDec 14, 2006
Answer filed—
Hearing heldSep 27, 2007
Decision dateFeb 28, 2008

Cite for

Evaluation of Foreign Influence Under Guideline B
Burden of Proof Shifts to Applicant to Establish Mitigation
Importance of National Security in Clearance Decisions

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 concerned the denial of a security clearance under Guideline B due to foreign influence. The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the findings were supported by substantial evidence and that the applicant's arguments did not demonstrate harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that any alleged errors were either harmless or did not warrant a reversal of the decision.

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 D. Hipple
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’s controverted findings of fact are based on substantial evidence or reasonable inferences from the record evidence or harmless error that would not change the outcome of the case. Applicant’s alternative interpretation of the evidence is insufficient to demonstrate error. Adverse decision affirmed. CASENO: 06-19923.a1 DATE: 02/28/2008 DATE: February 28, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-19923

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James F. Duffy, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 14, 2006, DOHA issued a statement of reasons (SOR) 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 See Decision at 2; Transcript at 36; Government Exhibit 1 at 1; Applicant’s Exhibit B at 1. The Judge stated that Applicant had telephone contact with his sister “when he calls his parents” and had “telephone contact once a week” with his father. See Decision at 3. The evidence indicates that Applicant had telephone contact with his sister “various amounts of time, exact amounts unknown” and “telephone contact once a week” with his father when his mother is in Taiwan. See Applicant’s Exhibit B at 1. See also Transcript at 72 and 74. requested a hearing. On September 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 raised the following issue on appeal: whether the Judge’s adverse security clearance decision under Guideline B is arbitrary, capricious, or contrary to law. Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge erred in his findings as to the date Applicant immigrated to the U.S., the date he became a U.S. citizen, and the extent of his telephone contact with his mother, father, and sister in Taiwan. He also argues the Judge erred in his weighing of the evidence. The Board does not find Applicant’s arguments persuasive. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). The Judge’s findings as to the date Applicant immigrated to the U.S., the date he became a U.S. citizen, and the extent of his telephone contact with his mother, are based on substantial evidence. The Judge’s findings as to the extent of Applicant’s telephone contact with his sister and father constitute either reasonable inferences that could be drawn from the record evidence or harmless error in that they would not change the outcome of the case. Applicant has not met his burden of demonstrating that the Judge’s material findings with respect to his circumstances of security concern do not reflect a reasonable or plausible interpretation of the record evidence. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, Decision at 5-8. or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions and factors. The Judge gave Applicant partial credit under the relevant mitigating conditions, but reasonably explained why the evidence which Applicant had presented was insufficient to overcome the government’s security concerns. The Judge’s decision exhibits a discerning weighing of a number of variables to reach a commonsense determination. Directive ¶ E2.2. In so doing, the Judge articulated a reasonable concern that Applicant's circumstances created a conflict of interest that could potentially make him vulnerable to coercion, exploitation or pressure. That security concern is based on close family ties in Taiwan, considered in the context of the overall political/security profile of that country vis-a-vis the United States. Applicant offers an alternative interpretation of the record evidence. However, that alternative interpretation of the record evidence is insufficient to render the Judge’s interpretation arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13, 2006). The Judge has articulated a rational explanation for his unfavorable determination under the disqualifying and mitigating factors and the whole-person concept, and there is sufficient record evidence to support that determination—given the standard that required the Judge to err on the side of national security. See, e.g, ISCR Case No. 06-04371 at 3 (App. Bd. Oct. 18, 2007).

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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