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ISCR Case 14-05986.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date10/14/2016
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 14-05986.a2) →See the hearing decision (Case 14-05986.h2) →See the hearing decision (Case 14-05986.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · For Applicant
- Guideline BForeign Influence · Against Applicant

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ISCR Case 14-05986.a1unknown

Case Headnote

ISCR Case No. 14-05986.a1

Oct 14, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant, representing himself, who sought a security clearance under Guideline B, Foreign Influence, due to concerns related to his Taiwanese in-laws. The initial decision by the judge was favorable to the applicant, applying mitigating condition AG ¶ 8(a) against disqualifying condition AG ¶ 7.

However, the appeal board remanded the case for a new decision. The board determined that the judge's favorable findings were not adequately supported by the evidence presented. Specifically, the judge failed to address significant evidence concerning the applicant's foreign ties and applied an ambiguous legal standard that was contrary to established guidelines.

Consequently, no final outcome has been reached regarding the applicant's security clearance. The case requires a new decision that properly evaluates the evidence and applies the correct legal standards concerning foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8(a)appliedMitigating Condition 8(a)The judge concluded that the risk from the applicant's foreign relatives was manageable.

Key Rule Quoted

“The standard applicable in security clearance decisions '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 issuedMay 21, 2015
Answer filed—
Hearing heldJun 30, 2016
Decision dateOct 14, 2016Remanded by the appeal board.

Cite For

Remand for Failure to Adequately Support a Favorable Decision Regarding Foreign Influence Under Guideline B
Application of Ambiguous Standards in Security Clearance Decisions
Importance of Addressing Significant Evidence in Whole-person Analysis

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

Remanded

The Department of Defense declined to grant the Applicant a security clearance based on security concerns under Guideline B. The Administrative Judge initially granted the clearance, but the Department Counsel appealed, arguing that the decision was arbitrary and capricious. The Appeal Board found merit in the appeal and remanded the case for a new decision addressing the identified errors.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's favorable decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge's decision failed to address important aspects of the case and applied an incorrect standard, leading to a remand for a new decision.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge must address the errors discussed in the decision and apply the correct standard as specified in Egan and the Directive.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
James F. Duffy

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: The Judge’s decision fails to address important aspects of the case and appears to apply a standard other than the one specified in Egan and the Directive. Favorable decision remanded. CASE NO: 14-05986.a1 DATE: 10/14/2016 DATE: October 14, 2016 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-05986

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 May 21, 2015, 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 June 30, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s favorable decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. The Judge’s Findings of Fact Applicant married his wife in Taiwan. They have two children, both of whom were born in the U.S. Applicant’s mother-in-law is a citizen and resident of Taiwan, as are his two brothers-in- law. Applicant’s mother-in-law is a homemaker with no political or military ties in Taiwan. His two brothers-in-law both served in the Taiwanese military. Applicant has little contact with these in-laws, although his wife maintains bi-monthly contact with them. Applicant’s wife has a bank account in Taiwan so that she can have access to funds when traveling to that country. Applicant’s U.S. assets are considerably greater, however. These include checking accounts, retirement accounts, two homes for which the mortgages are about satisfied, etc. Applicant enjoys as excellent reputation for the quality of his job performance. His facility security officer considers him to be of high moral character and to possess good judgment. Taiwan is a multi-party democracy with a good human rights record. It has experienced increased contacts with the People’s Republic of China (PRC) over recent years. Taiwan is one of the most active collectors of U.S. economic and proprietary information, as evidenced by recent espionage convictions of those acting on behalf of Taiwanese companies. In addition, the PRC is also interested in obtaining U.S. protected information by any means including espionage, as evidenced by the indictment of Chinese citizens for that offense. The PRC can be expected to acquire dual-use technologies from the U.S. and Taiwan. The Judge’s Analysis The Judge concluded that Applicant’s Taiwanese in-laws and open bank account in that country entail a heightened risk of foreign exploitation.1 He observed that [l]ittle is known about the backgrounds of Applicant’s mother-in-law and brothers- in-law. All that is known about Applicant’s mother-in-law is that she is a homemaker who occasionally assists with her family’s retail car business and does not rely on any financial support from Applicant and his wife. Even less is known about his brothers-in-law who each served in Taiwan’s military service. Decision at 13. He went on to state that none of Applicant’s foreign relatives have any identified associations with known Taiwanese intelligence of military organizations. He concluded that any risk arising from these persons is “manageable,” insofar as Applicant has infrequent direct contact with them. Id. at

FOOTNOTES

1 Directive, Enclosure 2 ¶ 7(a): “contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.” 14. Accordingly, the Judge gave favorable application to mitigating condition 8(a).2 In the whole-person analysis, the Judge cited to evidence that Applicant’s wife is a naturalized citizen with advanced degrees from U.S. universities, as well as to the evidence of good character and job performance that he submitted. He stated his opinion that the chances of coercion, pressure, or influence being brought through Applicant’s foreign relatives is “minimal.” Id. Discussion There is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). The applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate admitted or proven facts. The applicant has the burden of persuasion as to obtaining a favorable decision. Directive ¶ E3.1.15. The standard applicable in security clearance decisions “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). “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). In deciding whether the Judge's rulings or conclusions are erroneous, we will review the decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 14-02563 at 3-4 (App. Bd. Aug. 28, 2015). Department Counsel’s argument persuades us that the Judge’s findings and conclusions do not support his ultimate favorable decision. For example, he stated that the record contained little information about the backgrounds of Applicant’s foreign relatives. The Judge’s comment on its face does not support his conclusion that the security concerns arising from Applicant’s relatives in a country that practices economic espionage against the U.S. and which has a challenging relationship with the PRC were mitigated. We note the Judge’s finding that Applicant’s own direct ties with his wife’s Taiwanese relatives are minimal. It is well settled, however, that there is a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of his or her spouse. See, e.g., ISCR Case No. 11-04980 at 4 (App. Bd. Sep. 21, 2012). Moreover, Applicant’s wife’s contacts with her relatives are not infrequent, occurring as they do at apparently regular, bi-monthly intervals. These contacts underscore the ties that presumptively exist between Applicant and his in-laws. The Judge failed to address this aspect of the case, which impairs his favorable conclusions.

2 Directive, Enclosure 2 ¶ 8(a): “the 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.” The Judge’s conclusion that Applicant’s security concerns were “manageable” appears implicitly to acknowledge that all doubt about Applicant’s clearance eligibility has not been resolved. The Judge appears to apply a different, more ambiguous, standard to Applicant’s case than the one articulated in Egan and required by the Directive. As it stands, a reasonable person could interpret the Judge’s decision as having required the Government affirmatively to demonstrate that Applicant’s foreign in-laws pose a threat to U.S. interests rather than to require Applicant to demonstrate that his family’s circumstances fall within the mitigating conditions. See ISCR Case No. 11-04980, supra. Moreover, the Judge’s whole-person analysis does not address significant contrary record evidence.3 The Judge’s decision fails to address important aspects of the case and appears to apply a standard other than the one specified in Egan and the Directive. We conclude that the best resolution is to remand the case to the Judge for a new decision that addresses the errors discussed above.

3 We note Applicant’s testimony that he had been denied a security clearance in 2013 by another Government agency, due to his family connections in Taiwan, job-related travels in the PRC, and a couple of security infractions. Tr. at 97-98. He also testified that, during a trip to the PRC in the mid-2000s, someone broke into his hotel room and stole a laptop computer. Applicant held a clearance at this time. Tr. at 99. These matters were not alleged in the SOR. However, they are pertinent in evaluating the sufficiency of the Judge’s favorable whole-person analysis. See, e.g., ISCR Case No. 12-04554 at 2, Note 1 (App. Bd. Jul. 25, 2014). The incident with the laptop suggests that Applicant may already have come to the attention of persons in the PRC who have an interest in acquiring U.S. information. Order The Decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board