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ISCR Case 08-04488.a1 — CASE

ISCR Case 08-04488.a1unknown

Case Headnote

ISCR Case No. 08-04488.a1

Apr 23, 2009· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved a naturalized U.S. citizen, originally from Taiwan, whose application raised concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The Administrative Judge initially granted the clearance, but the Appeal Board subsequently reversed this decision.

The primary disqualifying conditions cited were AG B1 and AG C1, related to the applicant's family ties in Taiwan. While mitigating condition AG B8(a) was considered, the Appeal Board ultimately determined it was insufficient to address the government's security concerns.

The Board concluded that the applicant's connections to Taiwan presented a heightened risk of foreign exploitation. Consequently, the evidence provided was deemed inadequate to mitigate these risks under both Guideline B and Guideline C, resulting in no security clearance being granted.

Conditions Referenced

Disqualifying

AG B1raisedForeign Contacts and Activities
AG C1raisedForeign Preference

Mitigating

AG B8(a)rejectedMitigating Condition for Foreign InfluenceThe Judge's characterization of the applicant's relationships as 'normal' and 'routine' did not mitigate the government's security concerns.

Key Rule Quoted

“No one has a right to a security clearance. . . The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’”
— Department of the Navy v. Egan, 484 U.S. 581, 528 (1988)

Procedural Posture

SOR issuedAug 5, 2008
Answer filed—
Hearing heldJan 30, 2009
Decision dateApr 23, 2009Appeal Board decision reversed the prior ruling.

Cite For

Insufficient Evidence to Mitigate Security Concerns Under Guideline B and C
Heightened Risk of Foreign Exploitation Due to Family Ties in Taiwan
Reversal of Favorable Security Clearance Decisions Based on Inadequate Mitigation of Foreign Influence Risks.

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

Reversed

The appeal involved a security clearance decision where the Administrative Judge granted the applicant a clearance based on findings under Guideline B and C. The Department Counsel appealed, arguing that the Judge erred in concluding that the government did not establish a heightened risk of foreign influence. The Board reversed the Judge's decision, finding that the evidence did not sufficiently mitigate the government's security concerns.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz Jr. — granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
The Judge erred by concluding that the government failed to establish a case of heightened risk under Guideline B.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's application of Foreign Influence Mitigating Condition 8(a) is unsupported by the record evidence and is arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the government's failure to establish a heightened risk under Guideline B were not sustainable and that the Judge's application of mitigating conditions was arbitrary and capricious.

Ignored material evidenceNo rational connection between facts and conclusion

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 Y. Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

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 language of Guideline B does not require the level of proof the Judge asserted from Department Counsel. The ‘heightened risk language addresses an applicant’s contacts, not necessarily the country that the foreign contact is from. The Judge’s discussion about the normal and routine nature Applicant’s immediate family contacts does not vitiate the government’s security concerns. The Board is not able to conclude that the evidence of record is sufficient to overcome the government’s security concerns. Favorable decision reversed.. CASENO: 08-04488.a1 DATE: 04/23/2009 DATE: April 23, 2009 In Re: ---- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04488

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT Pro Se Department Counsel does not challenge the Judge’s favorable findings and conclusions under Guideline C. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 5, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the 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 January 30, 2009, after the hearing, Administrative Judge John Grattan Metz Jr. granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Department Counsel raises the following issues on appeal: (a) whether the Judge erred by concluding that the government failed to establish a case of heightened risk under Guideline B; and (b) whether the Judge’s application of Foreign Influence Mitigating Condition 8(a) is unsupported by the record evidence and is arbitrary, capricious, and contrary to law. erred by concluding that the government’s security concerns were not mitigated. For the following reasons, the Board reverses the Judge’s favorable security clearance determination. Whether the Record Supports the Judge’s Factual Findings A. The Judge made the following pertinent findings of fact: Applicant was born in Taiwan in 1970. She immigrated to the United States in 1990, where she lived with her aunt and uncle, who were both U.S. citizens. She obtained a bachelor’s degree in 2001 and a master’s degree in 2007. Applicant became a naturalized U.S. citizen in 1997. Applicant has a Taiwanese passport which remains valid until 2012, but she has surrendered it to her corporate security officers. Applicant’s mother is a resident citizen of Taiwan, and for the last 10 years has been retired from her job as an insurance agent for a private insurer. Applicant’s step-father is also a resident citizen of Taiwan. He has been retired for 11 years from his job as a ticket seller in a bus station. The record does not reflect whether this was a position with the Taiwanese government or a local government. Applicant’s brother is a resident citizen of Taiwan, employed as a junior high teacher in a private school. Applicant talks to her brother and mother two or three times a month by telephone. Applicant also has some high school friends in Taiwan, whom she speaks to by telephone three or four times a year. One is a housewife, while two others work in a commercial electronics company. Applicant visits these friends when she travels to Taiwan. Since 1999, Applicant has traveled to Taiwan once per year on average. In 2000, she opened some bank accounts in Taiwan so she would have quick access to cash. She deposited traveler’s checks in her accounts and withdrew cash as necessary during her visits. Typically, she would leave about $200 in the accounts when she left Taiwan, but the accounts now have about $3,000 in them. Applicant derives no income from these accounts. Taiwan is a multiparty democracy whose authorities generally respect the human rights of its citizens. While Taiwan is an active collector of industrial information and engages in industrial espionage, the record does not demonstrate that the government of Taiwan targets U.S. intelligence information. Further, the record does not demonstrate that Taiwan seeks to exert pressure on U.S. citizens to collect information from family members residing in that country or abroad. Applicant’s current supervisor, who is aware of her family background, testified that she had proven herself to be open, honest, trustworthy, and reliable in the six years he has known her. B. Discussion The Appeal Board’s review of the Judge’s findings of fact is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less th an 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 bu substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel does not challenge the Judge’s findings of fact. Rather, Department Counsel asserts error in the Judge’s analysis of the case and his application of the Adjudicative Guidelines. Therefore, Department Counsel’s appeal arguments are most appropriately addressed in the context of the Judge’s conclusions as described in the section that follows. Whether the Record Supports the Judge’s Ultimate Conclusions A. Conclusions The Judge reached the following conclusions: Foreign influence adjudications can and should consider the identity of the foreign country in which the foreign contact or financial interest is located–including, but not limited to, whether the country is known to target U.S. citizens to obtain protected information and/or is associated with a risk of terrorism. Evaluation of an individual’s qualifications for access to protected information requires careful assessment of both the foreign entity’s willingness and ability to target protected information, and to target ex-patriots who are U.S. citizens to obtain that information, and the individual’s susceptibility to influence, whether negative or positive. More specifically, an individual’s contacts with foreign family members (or other foreign entities or persons) raise security concerns only if those contacts create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. In this case, the government did not establish that Applicant’s contacts with her family and friends in Taiwan created a heightened risk of exploitation, inducement, manipulation, pressure, or coercion. The government also did not establish that Applicant’s bank accounts in Taiwan were sufficient to create a heightened risk of influence or exploitation. Taiwan and the U.S. enjoy excellent foreign relations. Although Taiwan is an active collector of commercial information, it has not been demonstrated to target protected U.S. information, nor has it been demonstrated to target U.S. citizens to obtain protected information. Given that Taiwan generally respects the human rights of its citizens, the risk that it might seek protected information from Applicant is low, if not non-existent. The government produced no evidence that there was a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because of Applicant’s contacts with family and friends in Taiwan. Applicant has resided in the U.S. nearly half her life. Her contacts with her parents, sibling, and friends are normal. There is nothing in the circumstances of their being in Taiwan, or in Applicant’s contacts with them, to heighten the risk that she could be impelled or compelled to provide protected information to Taiwan. Even if the government had established security concerns based on her contacts with Taiwanese nationals and her bank accounts, those concerns would be mitigated. Applicant’s contacts in Taiwan are routine. Taiwan generally respects the rights of its citizens, and none of her contacts in Taiwan are, or have been involved in activities that would make it likely that Applicant would have to choose between their interests or those of the U.S. The value and nature of Applicant’s bank accounts are such that they are unlikely to be used effectively to influence her. B. Discussion A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines Inc. v. United States, 371 U.S. 156, 168 (1962)). “[N]o one has a right to a security clearance. . . The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’” Department of the Navy v. Egan, 484 U.S. 581, 528 (1988). The Appeal Board may reverse a Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Department Counsel contends that the Judge erred by concluding that the government failed to establish a “heightened” risk in this case under Guideline B. Department Counsel’s arguments have merit. The Board notes the Judge’s findings and record evidence that Applicant has close family members in Taiwan with whom she regularly communicates and visits, and that Taiwan is a country that actively collects industrial information and engages in industrial espionage. As ‘[T]he nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.” pointed out by Department Counsel, the Judge’s conclusions in this case have the practical effect of requiring Department Counsel to prove affirmatively that a country specifically targets U.S. intelligence information and specifically targets U.S. citizens in the course of attempts to gather protected information. The language of the Directive, Guideline B, does not require this level of proof from Department Counsel in order to raise security concerns that shift the burden of persuasion to Applicant. See, e.g., ISCR Case No. 07-05686 at 4 (App. Bd. Nov. 12, 2008). Indeed, the “heightened risk” language in the Guideline addresses an applicant’s contacts, not necessarily the country that the foreign contact is from. The Judge’s conclusion on this issue is not sustainable. Department Counsel further contends that the Judge’s application of Foreign Influence Mitigating Condition 8(a) is unsupported by the record evidence and is arbitrary, capricious, and contrary to law. Department Counsel’s arguments have merit. The Judge based his mitigation rationale in part on his conclusion that Applicant’s relationships with her foreign family members and friends in Taiwan were “normal” and “routine.” The Judge does not define or elaborate on his use of the words “normal” and “routine.” In any event, the ability to characterize an applicant’s relationships with foreign resident citizens who are immediate family relatives or close friends as “routine” does not vitiate the government’s security concerns. Indeed, the rebuttable presumption that an applicant has ties of affection for immediate family members is based on the set of circumstances one normally expects to exist among close relatives. These circumstances include strong emotional attachments, feelings of obligation, and the maintenance of regular contact with such relatives. These are the very factors that give rise to the potential of exploitation and use of those relationships to place applicants in the position of having to choose between the interests of those individuals and the interests of the United States. The Judge’s findings of fact in this case do not rebut the presumption. Thus, the Judge erroneously employed his conclusion that these contacts were “normal” and “routine” as a partial basis for his ultimate ruling that Applicant satisfied her burden of overcoming the government’s security concerns. The Judge also based part of his mitigation rationale on his statement that Taiwan generally respects the human rights of its citizens. As Department Counsel points out, when evaluating the strength of Applicant’s case in mitigation, the Judge omits any consideration of Taiwan as an active collector of industrial information and a user of industrial espionage techniques. Taiwan’s posture in this regard is of such significance that the failure of the Judge to factor it into his analysis of the strength of Applicant’s case in mitigation was error. Department Counsel argues that the Judge’s conclusion that none of Applicant’s contacts in Taiwan are, or have been, involved in activities that would make it likely that Applicant would have to choose between their interests and those of the U.S. is not supported by the record evidence. Department Counsel characterizes the record as “sparse” regarding the activities of Applicant’s Taiwanese relatives and friends. The Board notes that there is some record evidence of the employment history and other life circumstances of Applicant’s relatives and friends. However, given Applicant’s burden of production regarding mitigation, the Board is not able to conclude that the evidence of record is sufficient to overcome the government’s security concerns. The record as a whole does not support a conclusion that Applicant has met her burden of persuasion in light of the Egan standard. Therefore, the Judge’s ultimate decision is not sustainable.

ORDER

The decision of the Administrative Judge granting Applicant a security clearance is REVERSED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board