CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-21622.a1 — CASE

ISCR Case 06-21622.a1unknown

Case Headnote

ISCR Case No. 06-21622.a1

Oct 15, 2007· Hon. Jean E. Smallin· appeal

Summary

This case involved a U.S. citizen who emigrated from China and was seeking a security clearance. Concerns were raised under Guideline B (Foreign Influence) due to the applicant's relatives residing in China, specifically citing Disqualifying Condition AG ¶ 6.

The appeal board determined that the initial decision to grant a security clearance was insufficient. It highlighted the necessity for a more comprehensive evaluation of the current political climate in China. This analysis was deemed crucial to fully understand the potential security implications arising from the applicant's foreign connections.

While Mitigating Condition AG ¶ 8 was considered, the board's primary finding was that the initial assessment lacked the required depth regarding the geopolitical context. Consequently, the outcome was that no security clearance decision was finalized, pending a more thorough review.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign InfluenceThe Judge did not adequately address the security concerns raised by the applicant’s foreign relatives.

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe Judge made no findings about the conditions in China.

Key Rule Quoted

“Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact . . . is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.”
— Directive ¶ E2.6

Procedural Posture

SOR issuedOct 18, 2006
Answer filed—
Hearing heldMar 12, 2007
Decision dateOct 15, 2007Remanded for further findings.

Cite For

Remand for Further Findings Regarding Foreign Influence Under Guideline B
Importance of Political Conditions in Evaluating Security Risks
Inadequate Analysis of Mitigating Conditions Related to Foreign Contacts

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

Remanded

The appeal involved a security clearance decision where the Administrative Judge granted the clearance. The Department Counsel appealed, arguing that the Judge's analysis was arbitrary and capricious. The Appeal Board found merit in the appeal and remanded the case for further findings and analysis.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowWilford H. Ross — granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's application of the pertinent mitigating conditions and whole person analysis were arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Judge failed to make findings about the political conditions in China and did not adequately address security concerns raised by the Applicant's foreign relatives, necessitating a remand for further analysis.

Missing findings

On remand, the judge must

The Judge must make more complete factual findings and provide analysis consistent with those findings.

Standard of review applied

Harmful-error gatekeeperArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
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 DIGEST: The Judge made no findings about the conditions in China, and does not adequately address the security concerns raised by Applicant’s foreign relatives. Favorable decision remanded. CASENO: 06-21622.a1 DATE: 10/15/2007 DATE: October 15, 2007 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-21622

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Elizabeth L. Newman, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 18, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence), pursuant to Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 12, 2007, after the hearing, Administrative Judge Wilford H. Ross granted Applicant’s request for a security clearance. Department Counsel submitted a timely appeal pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s application of the pertinent mitigating conditions, as well as his whole person analysis, are arbitrary, capricious, and contrary to law. Finding error, we remand to the Judge. The Judge made the following pertinent findings: Applicant emigrated from the People’s Republic of China (PRC) in 1986 to pursue his education. He became a U.S. citizen in 1998 and his wife, also born in the PRC, became a U.S. citizen in 2004. The couple has one daughter, born in the U.S. Applicant’s brother and mother are U.S. citizens. His father is still a citizen of the PRC but resides with Applicant and is a permanent resident of the U.S. Applicant’s parents-in-law are citizens of the PRC who reside there. They are retired, living on a pension from a non-government company. Applicant speaks with them once or twice a year. Applicant has traveled four times to China, all for vacations. He has complied with his employer’s reporting requirements for foreign travel. Although Department Counsel has not explicitly challenged the Judge’s findings, we conclude that such a challenge is implicit in Counsel’s argument that the Judge did not properly analyze Applicant’s case in light of the political conditions within the PRC. Insofar as the Judge made no findings at all about such conditions, his analysis erred in that he does not adequately address the security concerns raised by an Applicant’s foreign relatives. See Directive ¶ E2.6. (“Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact . . . is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.”) We conclude that the best way to resolve this case is to remand it to the Judge for more complete factual findings and for analysis consistent with those findings. See ISCR Case No. 05- 11292 at 4 (App. Bd. Apr. 12, 2007); ISCR Case No. 05-00939 at 3-4 (App. Bd. Mar. 14, 2007).

ORDER

The Judge’s decision granting Applicant a security clearance is REMANDED. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board