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ISCR Case 15-00042.a1 — CASE

ISCR Case 15-00042.a1denied

Case Headnote

ISCR Case No. 15-00042.a1

Jul 6, 2016· Hon. Jean E. Smallin· appeal

Summary

A U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated concerns regarding his family ties in China. The applicant's appeal was denied, with the judge citing significant security issues stemming from these connections.

Specifically, the applicant's family ties in China raised disqualifying conditions under Adjudicative Guideline (AG) ¶ 6. While mitigating conditions under AG ¶ 8 were considered, they were not sufficiently applied. The judge determined that the applicant did not adequately mitigate the presumption of obligation to his wife's Chinese relatives.

Ultimately, the judge concluded that the applicant's claims of limited contact with his Chinese relatives did not sufficiently rebut the security concerns posed by these connections, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe applicant's limited contact with family members was not sufficient 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 issuedAug 3, 2015
Answer filed—
Hearing heldApr 14, 2016
Decision dateJul 6, 2016

Cite For

Foreign Influence Concerns Under Guideline B
The Importance of Family Ties in Security Clearance Evaluations
The Standard for Granting Security Clearances in Relation to National Security Interests

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 foreign influence concerns under Guideline B. The applicant contested the Judge's findings, particularly regarding the number of siblings. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions drawn from the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowFrancisco Mendez — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings contained errors regarding the number of siblings.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Judge's analysis regarding the applicant's foreign connections and their implications for national security was deemed reasonable and well-articulated.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appealArbitrary-and-capricious review

Appeal Board panel

Jean E. Smallin
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 DIGEST: We conclude that the Judge’s material findings of security concern are supported by substantial evidence or constitute reasonable conclusions that could be drawn from the evidence. Applicant notes that the SOR alleges that he has five siblings, although he has only four. The Judge amended the SOR to reflect four siblings. His findings make references to Applicant’s siblings without specifically stating the precise number. We find no error in the Judge’s decision about this matter. Adverse decision affirmed. CASENO: 15-00042.a1 DATE: 07/06/2016 DATE: July 6, 2016 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00042

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 3, 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 April 14, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Francisco Mendez 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 the Judge’s findings of fact contained errors 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 was born in China. He came to the U.S. in the late 1980sand became a U.S. citizen a decade later. Applicant is a member of an ethnic and cultural minority in China, and he and his family have experienced hardship and persecution at the hands of the Chinese government. Applicant has been married for 30 years, and he and his wife have three children, all of whom were born in the U.S. The have substantial assets in the U.S. Applicant’s parents and siblings are residents and citizens of China. He speaks with his parents about three to four times a year and to his other siblings, save one, even less. Applicant has no contact at all with the one other sibling. Applicant has traveled to China on several occasions and has been subjected to added scrutiny. Applicant has maintained a web site devoted to the interests of his ethnic group and has engaged in peaceful demonstrations in the U.S. against China. Applicant was denied access to a U.S. Government facility by another Government agency due to his foreign contacts. China is an authoritarian state in which the Communist Party is supreme. It is actively engaged in collecting U.S. information and has conducted large-scale cyber-espionage against this country. It has a poor human rights record. Visitors to China may have their hotel rooms, internet usage, fax machines, etc. monitored. China has engaged in systematic repression and coercion of ethnic minorities. The Judge’s Analysis The Judge concluded that Applicant’s connections in China raised security concerns. In evaluating his case for mitigation, the Judge noted Applicant’s testimony that he has significant ties to the U.S. and that he communicates infrequently with his foreign relatives. Nevertheless, the Judge also concluded that Applicant is close to his family, as evidenced by his travels to China to visit them. He also stated that Applicant did not rebut the presumption that he had ties of obligation to his wife’s Chinese relatives. He concluded that Applicant had not mitigated the security concerns arising from his connections in China.

DISCUSSION

Applicant challenges some of the Judge’s findings. We conclude that the Judge’s material findings of security concern are supported by substantial evidence or constitute reasonable conclusions that could be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant notes that the SOR alleges that he has five siblings, although the evidence supports only four. He argues that the Judge did not correct this error. However, the Judge stated at the hearing that he would amend the SOR to reflect four siblings. Tr. at 37. He made a pen and ink change to the SOR. His findings make repeated references to Applicant’s siblings without specifically stating the precise number. We find no error in the Judge’s findings or analysis about this matter. Applicant’s citation to various pieces of evidence, such as his having destroyed his passport, his security training certificates, etc., is not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither is it sufficient to show that the Judge mis- weighed the evidence. See, e.g., ISCR Case No. 14-05795 at 2 (App. Bd. Apr. 26, 2016). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. See ISCR Case No. 05-03250 at 4-5 (App. Bd. Apr. 6, 2007) (In Foreign Influence cases, the nature of the foreign government involved, the intelligence-gathering history of that government, and the country’s human rights record are important considerations.) “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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board James E. Moody James E. Moody Administrative Judge Member, Appeal Board