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ISCR Case 09-08417.a1 — CASE

ISCR Case 09-08417.a1denied

Case Headnote

ISCR Case No. 09-08417.a1

Apr 4, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence) due to significant family ties remaining in China. These ties included a spouse and in-laws. The applicant presented favorable evidence and letters of recommendation, and the Judge acknowledged some mitigating factors were present.

However, the Judge ultimately determined that the mitigating evidence did not outweigh the unfavorable evidence related to foreign influence. The applicant's appeal was denied, with the board finding no error in the Judge's decision. The applicant failed to rebut the presumption that all record evidence was considered and could not demonstrate error by relying on other Hearing Office decisions.

Consequently, the security clearance was denied, as the applicant did not sufficiently mitigate the government's concerns regarding foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe Judge found some evidence of mitigation, but it did not compel a favorable decision.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 21, 2010
Answer filed—
Hearing heldFeb 8, 2011
Decision dateApr 4, 2011

Cite For

Evaluation of Foreign Influence Under Guideline B
Burden of Proof on Applicant to Mitigate Security Concerns
Persuasive Authority of Prior Hearing Office Decisions Not Binding on Judges

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 based on foreign influence concerns under Guideline B. The applicant argued that the judge's decision was arbitrary and capricious, citing other cases as persuasive authority. The Board affirmed the judge's decision, finding no harmful error in the judge's assessment of the evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the judge's decision denying a security clearance is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, demonstrating a rational connection between the facts found and the choice made.

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
William S. Fields
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 DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Other Hearing Office cases may be considered as persuasive authority, but they are not binding either on other Hearing Office Judges or on the Appeal Board. Adverse decision affirmed. CASE NO: 09-08417.a1 DATE: 04/04/2011 DATE: April 4, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-08417

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 21, 2010, 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 hearing. On February 8, 2011, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the judge’s decision denying Applicant a security clearance is arbitrary, capricious, or contrary to law. Specifically, Applicant contends that he has mitigated the Government’s security concerns under Guideline B, and he cites two Hearing Office decisions in support of his position. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following relevant factual findings: Applicant was born in China, but completed high school and college in the United States. Applicant became an American citizen while he was in college. Applicant’s spouse is a citizen of China. They married in China, and she immigrated to the United States later. Applicant’s spouse is a lawful U.S. resident alien, and she intends to apply for U.S. citizenship as soon as she is allowed to apply. They have one child, who was born in the United States. Applicant’s father, mother, brother, and sister were born in China. All now reside in the United States, and his mother has become a U.S. citizen. Applicant’s mother- in-law and father-in-law are citizens and residents of China. Applicant made five trips to China between 2005 and 2007–first to marry his wife and then to visit her before she joined him in the United States. Neither Applicant nor his wife has business, financial, or property interests in China. Applicant submitted ten highly favorable letters of recommendation. Applicant argues that he has mitigated the government’s security concerns under Guideline B and that the Judge either did not consider or did not give adequate weight to his evidence of mitigation. Among other factors which he considers to be significant as mitigation, Applicant refers to a statement in the government’s exhibits regarding China that China is helping the United States fight terrorism. There is a rebuttable presumption that the Judge considered all the record evidence unless the Judge specifically states otherwise; and there is no requirement that the Judge mention or discuss every piece of record evidence when reaching a decision. See, e.g., ISCR Case No. 07- 18303 at 2 (App. Bd. Nov. 13, 2008). Applicant has not rebutted the presumption that the Judge considered that evidence in his decision. Once the government presents evidence raising security concerns, the burden shifts to the applicant to mitigate those concerns. Directive ¶ E3.1.15. Applicant argues that he presented enough mitigating evidence that the Judge should have granted him a clearance. The Judge found some evidence of mitigation. However, that alone did not compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 07-05809 at 2 (App. Bd. May 27, 2008). In support of his appeal, Applicant cites decisions by two other Hearing Office Judges which he believes are similar to his case and in which the Judge granted the applicant a clearance. While decisions by Hearing Office Judges in other cases may be cited as persuasive authority, those cases are not binding legal precedent which a Hearing Office Judge must follow in another situation. Applicant’s reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case. See, e.g., ISCR Case No. 08-03845 at 2 (App. Bd. Feb. 24, 2009). After reviewing the record as a whole, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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, 158 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board