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ISCR Case 14-02632.a1 — CASE

ISCR Case 14-02632.a1denied

Case Headnote

ISCR Case No. 14-02632.a1

Aug 28, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from Taiwan, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant failed to provide sufficient evidence to mitigate security concerns related to foreign contacts and property interests. Specifically, the applicant did not respond to the File of Relevant Material (FORM) with any evidence in mitigation or extenuation.

Further disqualifying conditions raised included AG B2 and AG C1. The applicant's use of a Taiwanese passport also raised concerns regarding foreign preference.

The appeal board affirmed the denial, citing the lack of mitigating evidence and the applicant's failure to provide corroboration for his claims. The security clearance was ultimately DENIED.

Conditions Referenced

Disqualifying

AG B2raisedForeign Contacts and Interests
AG C1raisedForeign Preference

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 issuedAug 4, 2014
Answer filed—
Hearing heldJun 25, 2015
Decision dateAug 28, 2015

Cite For

Insufficient Evidence to Mitigate Foreign Influence Concerns Under Guideline B
Insufficient Evidence to Mitigate Foreign Preference Concerns Under Guideline C
Due Process Considerations 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 was from a denial of a security clearance based on security concerns under Guideline B and Guideline C. The applicant argued that he was denied due process and that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Administrative Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline C

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant claimed he was denied due process.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant was provided adequate notice of the burden to provide mitigating evidence, which he failed to do.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael 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 was on notice of the burden on him to provide information to support his case in mitigation. Adverse decision affirmed. CASENO: 14-02632.a1 DATE: 08/28/2015 DATE: August 28, 2015 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02632

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 August 4, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) and 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 June 25, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether he was denied due process and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant works for a Government contractor. Born in Taiwan to Taiwanese parents, he came to the U.S. in the early 1980sand became a naturalized citizen ten years later. He received a security clearance in 2004. Applicant possesses a U.S. passport. He also obtained a Taiwanese passport in the mid-2000s. He used it to travel to Taiwan three times since 2007. He claimed that he used both his U.S. and Taiwanese passports and that customs officials stamped both of them. He also stated that he had destroyed his Taiwanese passport, although he provided no corroboration. Applicant submitted no information about any financial or property interests in Taiwan. He has relatives living in that country, including a grandmother and other family members. He provided no information about them, for example whether they had any connections with the military, worked for the Taiwanese government, etc. He also provided little information about the extent of his contacts with them. Taiwan is a multi-party democracy and has the 21st largest economy in the world. It is also one of the most active collectors of U.S. economic and proprietary information. Since 2000, the country has been repeatedly involved in criminal espionage and export control violations of U.S. technology with military applications. Private sector acquisitions have resulted in foreign governments obtaining U.S. technology. The Judge’s Analysis The Judge relied in large part upon a paucity of mitigating evidence. He stated that Applicant had provided nothing regarding the nature and extent of his contacts with his foreign relatives or the extent of any property holdings he may have in Taiwan. He also noted evidence that Applicant had exercised a prerogative of Taiwanese citizenship by obtaining and using a passport from that country. He concluded that Applicant had not succeeded in mitigating the security concerns in his case.

DISCUSSION

Applicant stated that he had not been told that he needed to provide corroboration for his claims to have destroyed his Taiwanese passport and to have used his U.S. passport. The Directive states that an applicant who chooses a decision on the written record has 30 days in which to submit written objections, rebuttal, extenuation, mitigation, or explanations of the evidence included in the File of Relevant Material (FORM). Directive ¶ E3.1.7. It also describes various conditions that could mitigate security concerns, including those raised in this case. Directive, Enclosure 2 ¶¶ 8 and 11. Applicant was provided a copy of the Directive. Both the FORM and the cover letter accompanying it clearly explained Applicant’s right to provide evidence. Moreover, the FORM explicitly stated that Applicant had provided no evidence in mitigation or extenuation, including no evidence corroborating his claim to have destroyed his passport. Applicant received notice sufficient to have apprised him of the kind of things that can mitigate security concerns, as well of his right to present evidence in his own behalf. Despite this notice, Applicant did not respond to the FORM. We find no reason to conclude that Applicant was denied his due process rights. Applicant’s brief cites to matters not contained in the record, which we cannot consider. Directive ¶ E3.1.29. Applicant cites to some Hearing Office decisions that, he contends, are similar to his and in which the applicants received clearances. We give these cases due consideration as persuasive authority. However, each case must be decided upon its own merits. Directive, Enclosure 2 ¶ 2(b). Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See, e.g., ISCR Case No. 11-14723 at 3 (App. Bd. Oct. 3, 2014). In none of the decisions that Applicant has cited do the Judges reference a paucity of mitigating evidence, as is the case here. These decisions do not demonstrate that the Judge’s overall decision was erroneous. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed; Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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