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ISCR 14-03200.a1: Guideline B security clearance appeal, denied (2015) · CASE

ISCR Case 14-03200.a1denied

Case headnote

ISCR Case No. 14-03200.a1

Jul 16, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen and former military member was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The primary issue revolved around his ex-wife, a Chinese citizen, and the potential for coercion by the Chinese government.

Specifically, the applicant's ongoing communication with his ex-wife and child, who reside in China, was deemed to create a heightened risk of coercion given the authoritarian nature of the Chinese government. While favorable findings were made under Guideline E, the judge concluded that the applicant's ties to China presented significant security risks.

The applicant failed to provide sufficient mitigating evidence to overcome these security concerns related to his ex-wife. Consequently, despite the application of mitigating conditions under AG ¶ 20, the disqualifying conditions raised under AG ¶ 7 ultimately led to the denial of his security clearance.

Conditions referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 20rejectedMitigating ConditionsThe applicant's ties to his ex-wife and the nature of the Chinese government were deemed insufficient to mitigate the security concerns.

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 18, 2014
Answer filed—
Hearing heldApr 28, 2015
Decision dateJul 16, 2015

Cite for

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Personal Relationships on Security Clearance Decisions
Due Process Considerations in Security Clearance Hearings

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 a security clearance based on concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant argued that he was denied due process and that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the SOR was sufficient to place the applicant on notice of the security concerns and that the Judge's analysis was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Due-process / fairness, raised by the applicantRejected
Applicant contended that he was denied due process because the SOR did not explicitly mention his child as a concern.
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 findings were supported by substantial evidence and that the SOR provided adequate notice of the security concerns. The Board concluded that the Judge's decision was not arbitrary or capricious and that due process was not violated.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan (Chair)
Jeffrey D. Billett
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 E DIGEST: An SOR is not held to the strict requirements of a criminal indictment. The SOR was sufficient to place Applicant on notice that his relation with his ex-wife in China was of security concern. Adverse decision affirmed. CASENO: 14-03200.a1 DATE: 07/16/2015 DATE: July 16, 2015 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03200

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 July 18, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 28, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher 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 Applicant was denied due process and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s findings of Fact The Judge made the following findings pertinent to the issues raised on appeal. A U.S. citizen by birth, Applicant served in the U.S. military, in which he achieved the grade of E-5. He was honorably discharged in the early 2000sand has since worked as a Federal contractor in Japan for several years. It was in that country that he met his future wife, a citizen of China who was away from home attending school. The two married in the late 2000s, and they had a child. At some point after the birth of their child, Applicant and his wife experienced marital problems. They divorced, sharing joint custody of their child. However, Applicant’s now ex-wife moved to China, taking their child with her. Applicant has visited China in an effort to get the child back. Applicant has weekly contact with his ex-wife and his child over the internet. China has an authoritarian government that is dominated by the Communist Party. China has a poor record regarding human rights. China aggressively targets sensitive and protected U.S. technology and economic intelligence. It has targeted the U.S. with active intelligence gathering programs. Chinese authorities have monitored telephone conversations, fax transmissions, e-mail, text messaging, and internet communications. Authorities have opened and censored mail, and security services routinely enter residences and offices to gain access to computers, telephones, and fax machines. The Judge’s Analysis The Judge resolved the Guideline E allegation in Applicant’s favor, as he did with most of the allegations under Guideline B. However, concerning the single allegation pertaining to Applicant’s wife, the Judge concluded that the circumstances raised a concern that Applicant is subject to a heightened risk of coercion. He cited to evidence that (1) the now ex-wife has moved back to China, along with the couple’s child; (2) Applicant has weekly communication with the ex- wife and child through the internet; and (3) China has a poor human rights record and actively seeks U.S. protected information. In further concluding that Applicant has not met his burden of persuasion as to mitigation, the Judge acknowledged that Applicant is in a difficult position. However, he stated that Applicant may well have to choose between the interests of his ex-wife and those of U.S. security. “Because of Applicant’s continuing ties to his ex-wife and the nature of the government of China,” the Judge concluded that Applicant’s mitigation evidence was “insufficient to overcome the significant security concerns generated by Applicant’s ex-wife[.]” Decision at 7.

DISCUSSION

Applicant contends that he was denied due process. He states that the SOR alleged his then wife as a concern but not his child. He states that, had he known that the status of his child was at issue, he could have prepared his mitigation case accordingly. An SOR is an administrative pleading that is not held to the strict requirements of a criminal indictment. An SOR does not have to allege every relevant fact that might arise at a hearing. See, e.g., ISCR Case No. 11-12461 at 3 (App. Bd. Mar. 14, 2013). Moreover, conduct or circumstances not alleged in an SOR may be considered in evaluating an applicant’s evidence for extenuation or mitigation. See, e.g., ISCR Case No. 09-06770 at 3 (App. Bd. Nov. 8, 2010). In the case before us, the allegation stated the following: “Your spouse is a citizen of China currently residing in the United States.” SOR ¶ 1.a. In responding to the SOR, Applicant admitted the allegation, adding that he and his wife had divorced and that she had returned to China. Evidence concerning his child was developed at the hearing. Under the facts of this case, we conclude that the SOR was sufficient to place Applicant on notice that his relationship with his now ex-wife raised security concerns. The Judge’s analysis of these concerns focused principally on this relationship, addressing the child as a significant reason that the ex-wife posed a heightened risk that Applicant could be subjected to duress or coercion. We conclude that the Judge’s findings about the child did not raise matters beyond the scope of the SOR. Accordingly, we conclude that Applicant received adequate notice of the concerns raised in his case and that his ability to prepare a case for mitigation was not impaired. Applicant was not denied due process.1 Applicant cites to evidence of his military service, his having held a clearance for many years without incident or concern, and to evidence of the circumstances surrounding his relationship with his ex-wife. A Judge is presumed to have considered all of the evidence in the record. Applicant’s argument on appeal is not enough to rebut that presumption or to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 08-09626 at 2 (App. Bd. Aug. 5, 2009). 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.”

FOOTNOTES

1 Even if one concluded that the Judge erred by not amending the SOR to allege independent concerns about Applicant’s child, Applicant has cited to no evidence that he would have presented in mitigation of those concerns. Under the circumstances, it is unlikely that amending the SOR would have led to a different result. We also note that, at the beginning of the hearing, the Judge advised Applicant that if he had “any questions or concerns at any point” to let the Judge know and he would address them. Tr. at 7. A bit later, Department Counsel stated that the security concern involving Applicant’s spouse required consideration of the circumstances regarding the child. Tr. at 14. Applicant did not object or otherwise convey to the Judge a belief that this might impair his ability to present his case in mitigation. A reasonable person could conclude that Applicant forfeited this issue by failing to raise it at the appropriate time. Even pro se applicant’s are expected to take reasonable steps to protect their rights. See, e.g., ISCR Case No. 12-00270 at 3 (App. Bd. Jan. 17, 2014). Order The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board