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ISCR Case 12-00058.a1 — CASE

ISCR Case 12-00058.a1denied

Case Headnote

ISCR Case No. 12-00058.a1

Apr 9, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A 59-year-old naturalized U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated concerns regarding family ties in his birth country. The applicant's mother and brother reside in China, and while contact was described as limited, the judge determined these relationships presented a heightened risk of foreign exploitation.

Specifically, the applicant's family ties were found to create a potential conflict of interest concerning sensitive information. The judge concluded that the applicant did not sufficiently mitigate the risks associated with these relationships.

Ultimately, the applicant's assertions of limited contact with his family members in China were deemed insufficient to alleviate the foreign influence concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B2rejectedThe Nature of the Foreign ContactsThe judge found that the applicant's limited contact did not eliminate the risk of coercion or exploitation.
AG B3rejectedThe Applicant's Choice to Live in the U.S.The judge concluded that living in the U.S. does not negate the potential risks posed by family ties in China.

Key Rule Quoted

“A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law.”

Procedural Posture

SOR issuedSep 5, 2012
Answer filed—
Hearing heldJan 23, 2013
Decision dateApr 9, 2013

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Family Ties on Security Clearance Decisions
Burden of Proof Regarding Mitigating Conditions in Foreign Influence 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 seeking a security clearance who was denied due to concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — 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 argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings and conclusions were reasonably supported by the record and that the Judge articulated a satisfactory explanation for the decision, maintaining 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
Jeffrey D. Billett
William S. Fields

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: A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASE NO: 12-00058.a1 DATE: 04/09/2013 DATE: April 9, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-00058

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 5, 2012, DoD 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 January 23, 2013, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable security clearance decision. The Judge’s Findings of Fact The Judge found: Applicant is 59 years old. He was born and raised in the People’s Republic of China (China). In the mid-1980s, he immigrated to the United States. He became a naturalized U.S. citizen in the late 1990s. Applicant has been married three times. The first two wives were citizens of China. He and his first wife divorced in China. Applicant’s second wife remained in China. They divorced in the late 1990s. Applicant married his third wife in 2001. She was also born in China. The couple has a daughter who was born in the United States and is a U .S. citizen. Applicant’s father is deceased. Applicant’s mother is a citizen and resident of China. She is suffering from poor health, including dementia. Twice in the last decade, Applicant traveled to China to visit his mother when her failing health required hospitalization. Before his mother began to suffer from dementia, he spoke with her on the telephone about three times a year. Since his last visit, Applicant has had little contact with his mother. Applicant surmises that his mother receives a private pension from the hospital that employed her. Applicant’s brother is a citizen and resident of China. Applicant believes his brother works as a salesman for companies in China. When Applicant’s mother was in better health, Applicant spoke with his brother about three times a year. Sometimes his brother calls Applicant to inform him of their mother’s health condition. Applicant’s last telephone contact with his brother was in early 2012. Applicant’s brother has not served in the Chinese military. Applicant’s sister is a citizen and resident of China. She worked in a technical profession. Applicant believes his sister and her husband may have worked for an entity of the Chinese government. Applicant’s sister has immigrated to the United States with her husband and son. Applicant’s sister is a citizen of China and now has legal resident status in the United States. She continues to hold a Chinese passport, and she is working as a nanny for a Chinese family. Before she moved to the United States, Applicant spoke on the telephone with his sister about three times a year. Applicant does not own any property in China. He owns a home in the United States with a value of $850,000. He feels that his loyalties are to the United States and not China. Between 1994 and 2000, Applicant traveled to China five times. China has an authoritarian, Communist government and powerful military forces. It has significant resources and a rapidly expanding economy. China aggressively competes with the United States in many areas. China’s competitive relationship with the United States exacerbates the risk posed by Applicant’s connections to family members living in China. China has a history of human rights problems, including suppression of political dissent, arbitrary arrest and detention, forced confessions, torture, and mistreatment of prisoners. The Chinese government also monitors communications devices. China actively collects military, economic, and proprietary industrial information about the United States. China’s active intelligence-gathering programs focus on sensitive and protected U.S. technologies. Chinese intelligence services and private companies frequently try to target Chinese citizens or individuals with family ties to China who can use their insider access to corporate networks to steal secrets using removable media devices or e-mail. Attempts to collect U.S. technological and economic information will continue at a high level and will represent a growing and persistent threat to U.S. economic interests. The Judge’s Analysis The Judge concluded: Applicant’s sister and her family do not live with Applicant and his family, and her presence in the United States diminishes but does not extinguish the possibility of foreign exploitation or coercion. However, Applicant’s relationship with his mother and his brother in China is sufficient to create a heightened risk of foreign exploitation, inducement, manipulation, pressure or coercion. These relationships with residents and citizens of China create a potential conflict of interest between Applicant’s obligation to protect sensitive information or technology and his desire to help family members who are in China. The relationship of China with the United States places a significant, but not insurmountable, burden of persuasion on Applicant to demonstrate that his contacts with his family members living in China do not pose a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. While there is no evidence that intelligence operatives from China seek or have sought classified or economic information from or through Applicant and his family members living in China, it is not possible to rule out such a possibility in the future. Although his connections to his mother and brother in China are infrequent, Applicant is not able to fully meet his burden of showing there is little likelihood that his relationships with relatives who are Chinese citizens could create a risk for foreign influence or exploitation because of China’s aggressive pursuit of classified and sensitive U.S. information. Applicant has strong family connections to the United States. Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with his family members who live in China. China’s conduct makes it more likely that it would attempt to coerce Applicant through his family living in China, if it determined it was advantageous to do so. Applicant has failed to mitigate the security concerns arising under the Foreign Influence adjudicative guideline.

DISCUSSION

Applicant asserts that he does not have close ties with his brother and mother, as evidenced by his contacting them once, twice, or three times a year, or not at all. He states that his brother and mother do not know what he is doing, and he has not been approached by any Chinese or foreign agents. He asserts that he would report any such contacts immediately. He emphasizes that he has a long and solid record as a government contractor. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06- 10320 at 2 (App. Bd. Nov. 7, 2007). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant’s appeal brief essentially argues for an alternate interpretation of the record evidence. A review of the Judge’s decision reveals that the Judge listed the potentially applicable mitigating conditions and then discussed several components of those factors in her analysis in some detail. After a review of the evidence and the Judge’s decision, the Board concludes that the Judge’s findings and conclusions are reasonably supported by the record. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated 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)). “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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board