CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-21247.a1 — CASE

ISCR Case 06-21247.a1denied

Case Headnote

ISCR Case No. 06-21247.a1

Apr 7, 2008· Hon. Jean E. Smallin· appeal

Summary

A U.S. citizen and electrical engineer, originally from Taiwan, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed primarily from his significant family ties remaining in Taiwan and his extended residence there after acquiring U.S. citizenship.

The judge determined that these factors raised sufficient security concerns, specifically citing Disqualifying Conditions AG ¶ 6(a) and AG ¶ 8(a). The applicant did not meet the burden of persuasion to demonstrate that granting a security clearance would be consistent with national security interests.

Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 6(a)raisedForeign Influence
AG ¶ 8(a)raisedForeign Preference

Key Rule Quoted

“the burden shifts to the applicant to establish any appropriate mitigating conditions”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 31, 2007
Answer filed—
Hearing heldDec 3, 2007
Decision dateApr 7, 2008

Cite For

Security Concerns Under Guideline B Due to Foreign Influence From Family Ties
Security Concerns Under Guideline C Related to Foreign Preference
Burden of Persuasion on the Applicant Regarding Mitigating Conditions

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 and preference concerns. The Applicant argued that the Judge erred in not finding the concerns mitigated. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in failing to conclude that the Guideline B security concerns were mitigated.

Why the Board ruled this way

The Board found no error in the Judge's conclusion that the Applicant did not meet his burden of persuasion regarding the security concerns under Guideline B.

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

Jean E. Smallin
William S. Fields
James E. Moody

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; Guideline C DIGEST: The Judge concluded that in light of Applicant’s family ties in Taiwan and his years living there after acquiring U.S. citizenship he had not met his burden of persuasion. Adverse decision affirmed. CASENO: 06-21247.a1 DATE: 04/07/2008 DATE: April 7, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-21247

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Greg D. McCormack, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 31, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the The Judge’s favorable decision under SOR paragraphs 1(b) and 1(d) and under Guideline C is not at issue in this appeal. basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 3, 2007, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in failing to conclude that the Guideline B security concerns were mitigated. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an electrical engineer who works for a defense contractor. He was born in Taiwan and became a U.S. citizen in 1991. His father and mother are citizens and residents of Taiwan as are his siblings–two brothers and three sisters. The eldest of his sisters is a computer engineer for a cell phone company. The other two work for the Taiwanese equivalent of the IRS. Applicant speaks with his mother two or three times a year. In 1998 Applicant returned to Taiwan, living there until 2004 in order to look after his father, who was ill. Taiwan is a multiparty democracy which is a trading partner of the U.S. In the past, Taiwan has utilized unlawful methods to obtain U.S. economic and intelligence information. However, in recent years Taiwan has taken “dramatic steps” to improve its human rights posture. The Judge acknowledged Applicant’s appreciation of the U.S. and his sincere desire to remain here. However, she concluded that, in light of his family ties to Taiwan and the years he spent living there after becoming a U.S. citizen, Applicant had not met his burden of persuasion that it is “clearly consistent with the interests of the national security” for him to have a security clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive ¶ E3.1.15. (After the government presents evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions.) The Judge’s decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board