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ISCR Case 07-00311 — CASE

ISCR Case 07-00311denied

Case Headnote

ISCR Case No. 07-00311

Jan 17, 2008· Hon. Jeffrey D. Billett· appeal

Summary

This DOHA security clearance decision involved an applicant, a defense contractor with a Ph.D. in electrical engineering, who was denied clearance under Guideline B (Foreign Influence). The primary concerns stemmed from her birth in the People's Republic of China (PRC) and ongoing family ties there, specifically her husband and in-laws.

The judge identified disqualifying condition AG B2, concluding that the applicant failed to sufficiently mitigate the security concerns. Key factors in the denial included the potential for her foreign relatives to influence her decisions regarding U.S. interests.

Ultimately, the judge determined that the applicant's connections to the PRC, coupled with the repressive nature of its regime, presented an unmitigated risk, leading to the denial of her security clearance.

Conditions Referenced

Disqualifying

AG B2raisedForeign Influence

Key Rule Quoted

“The government is not estopped from making an adverse clearance decision when there were prior favorable determinations.”
— ISCR Case No. 03-23190 at 4 (App. Bd. Jul. 12, 2007)

Procedural Posture

SOR issuedMar 28, 2007
Answer filed—
Hearing held—
Decision dateJan 17, 2008

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
The Burden of Persuasion on the Applicant to Mitigate Security Concerns
The Impact of Foreign Family Ties on Security 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 involved a denial of security clearance based on foreign influence concerns. The applicant argued that the decision was arbitrary and capricious, but the Board affirmed the Judge's ruling, finding no harmful error in the decision-making process. The Judge's conclusions were supported by substantial evidence regarding the applicant's foreign ties and the potential security risks involved.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided onthe written record

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 security clearance decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge had drawn a rational connection between the facts and the adverse decision regarding security clearance.

Standard of review applied

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

Appeal Board panel

Jeffrey D. Billett
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 DIGEST: The Judge concluded that Applicant had not met her burden of persuasion that the security concerns in her case had been mitigated, in view of the potential for Applicant’s foreign relatives to become a means through which Applicant could be placed in a position of having to choose between the interests of the U.S. and the PRC. See Directive ¶¶ E3.1.15, 8(a). The Board concludes that the Judge has drawn “a rational connection between the facts found” and his ultimate adverse decision. CASENO: 07-00311 DATE: 01/17/2008 DATE: January 17, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-00311

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge’s favorable decision under SOR paragraphs 1(b) and 1(d) are not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 28, 2007, 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 requested a decision on the written record. On September 17, 2007, after considering the record, Administrative Judge Edward W. Loughran 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’s adverse security clearance decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an employee of a defense contractor, holding a Ph.D. in electrical engineering. Applicant was born in the People’s Republic of China (PRC). Her husband is a citizen of the PRC living with her in the U.S. Her in- laws are citizens and residents of the PRC. Applicant’s grandparents worked for the Chinese government before the Communist Revolution. Because of this, and because they were well off, Applicant “was marked since birth as the descendant of the ‘exploiting class,’ and was considered the target and enemy of the Communist Party.” Decision at 3. Applicant and her family were deprived of equal rights during the Cultural Revolution. Applicant argues on appeal that the Judge failed to consider that she received an interim clearance in May 2006, which was granted in full knowledge of her foreign contacts. She states that this is a matter which should be considered on appeal. However, Applicant’s contentions do not overcome the rebuttable presumption that the Judge has considered all the evidence in the record. See ISCR Case 01-03357 at 4 (App. Bd. Dec. 13, 2005). In any event, a prior decision to grant an applicant access to classified information does not impair a Judge’s subsequent adverse determination. See ISCR Case No. 03-23190 at 4 (App. Bd. Jul. 12, 2007) (“The government is not estopped from making an adverse clearance decision when there were prior favorable determinations.”) We have considered the Judge’s decision in light of the record as a whole. He gave favorable consideration to Applicant’s excellent work record, her education, her assets in the U.S., and her strong ties to this country. On the other hand he also noted the repressive nature of the PRC regime, the fact that it targets the U.S. for espionage, the fact that Applicant’s family has been targeted by the regime in the past, and the fact that Applicant has close family members who are citizens of the PRC. The Judge concluded that Applicant had not met her burden of persuasion that the security concerns in her case had been mitigated, in view of the potential for Applicant’s foreign relatives to become a means through which Applicant could be placed in a position of having to choose between the interests of the U.S. and the PRC. See Directive ¶¶ E3.1.15, 8(a). 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: Jeffrey D. Billett Jeffrey D. Billett 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