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ISCR Case 06-24420.a1 — CASE

ISCR Case 06-24420.a1denied

Case Headnote

ISCR Case No. 06-24420.a1

Feb 5, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A principal software engineer, who emigrated from Taiwan, was denied a U.S. security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed from his continued ties to Taiwan and the People's Republic of China.

Key concerns included the applicant's use of a Taiwan passport, frequent travel to both Taiwan and the PRC, and ownership of property in Taiwan. Additionally, the applicant has siblings who are citizens and residents of Taiwan, which was identified as a potential source of foreign pressure.

The judge found a rational connection between these foreign ties and the potential for foreign influence, leading to the denial. The appeal board subsequently affirmed this decision, finding no error in the judge's assessment and a rational link between the established facts and the adverse outcome.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence
AG C1raisedForeign Preference

Key Rule Quoted

“The Judge has drawn a rational connection between the facts found and his ultimate adverse decision.”
— ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006)

Procedural Posture

SOR issuedApr 18, 2007
Answer filed—
Hearing heldSep 26, 2007
Decision dateFeb 5, 2008

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Security Concerns Related to Foreign Preference Under Guideline C
The Importance of Rational Connections Between Facts and Adverse Decisions in Security Clearance Cases.

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 an applicant who was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant challenged the Judge's findings and the adverse decision. The Board affirmed the Judge's decision, finding no harmful error in the Judge's reasoning or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCharles D. Ablard — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in finding that he has never desired a security clearance until it was suggested by his company.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision is arbitrary, capricious, and 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 no error in the Judge's findings and concluded that the Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
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: Applicant has three siblings who are residents and citizens of Taiwan. He has a Taiwan passport which he has used in lieu of his U.S. passport. He owns an interest in two apartments in Taiwan. He has traveled several times to Taiwan and six times to the People’s Republic of China between 1999 and 2005. The Judge has drawn a rational connection between the facts found and his ultimate adverse decision. Unfavorable decision affirmed. CASENO: 06-24420.a1 DATE: 02/05/2008 DATE: February 5, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-24420

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 18, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and The Judge’s favorable decision under SOR paragraphs 1(c), (d) and 2(a) are not at issue in this appeal. “There is evidence that Taiwan has engaged in economic and military espionage and that the PRC seeks to use it as a source for information as shown in the official documents of which I have taken administrative notice . . .” Decision at 5. Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 26, 2007, after the hearing, Administrative Judge Charles D. Ablard 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 issues on appeal: whether certain of the Judge’s factual findings were error; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following findings of fact: Applicant is employed as a principal software engineer for a major defense contractor. He emigrated to the U.S. from Taiwan in 1986 after earning degrees in electrical engineering and physics. He obtained a Masters degree in the U.S. and became as citizen of this country in 1996. He has held a U.S. passport since 1997. Applicant has two brothers and one sister who are citizens and residents of Taiwan. He has made several trips to that country and, in addition, has traveled to the People’s Republic of China (PRC) six times between 1999 and 2005, this last instance occurring after the issuance of the SOR. Applicant holds a Taiwan passport, which he has turned over to the security office of his employer until such time as he no longer needs a security clearance. He used that passport in lieu of his U.S. one during two of his trips to Taiwan. He owns an interest with his brothers in two apartments in Taiwan. Applicant challenges a number of the Judge’s findings. For example, Applicant contends that the Judge erred in finding that he has never desired a security clearance “until it was suggested by his company.” Decision at 3. We have examined the record and conclude that the challenged findings are based upon substantial evidence. We have also considered the totality of the unchallenged findings. To the extent that the Judge’s challenged findings may contain error, however, we conclude that it is harmless, in that it did not likely affect the outcome of the case. See ISCR 01-23362 (App. Bd. Jun. 5, 2006). In evaluating Applicant’s case the Judge took into account favorable information, such as his excellent work record, his financial holdings in the U.S., and his relatively limited contact with his foreign siblings. However, the Judge also balanced that evidence against the security concerns raised by Applicant’s frequent trips to Taiwan and the PRC, his use of a Taiwanese passport, and the fact that both Taiwan and the PRC engage in intelligence gathering against the U.S. He also noted that, despite the limited nature of Applicant’s contact with his foreign siblings, they could still be the means through which Applicant could be subjected to pressure. The Board concludes that the Judge has drawn “a rational connection between the facts found” and his ultimate adverse decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Accordingly, the Board holds that this decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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