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ISCR Case 15-05294.a1 — CASE

ISCR Case 15-05294.a1denied

Case Headnote

ISCR Case No. 15-05294.a1

Nov 17, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from Taiwan, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed primarily from the applicant's family ties in Taiwan and the possession and use of a Taiwanese passport.

Specifically, the applicant's in-laws residing in Taiwan raised concerns under Guideline B. Under Guideline C, the applicant's possession of a Taiwanese passport and its use for travel to Taiwan were significant disqualifying conditions.

Furthermore, the applicant's credibility was undermined by the failure to disclose the Taiwanese passport in a previous security clearance application. These combined factors led the judges to conclude that the applicant's connections and lack of disclosure presented significant security concerns, resulting in the denial of the clearance.

Conditions Referenced

Disqualifying

AG B2raisedForeign Contacts and Interests
AG C1raisedPossession of a Foreign Passport

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 23, 2015
Answer filed—
Hearing heldAug 23, 2016
Decision dateNov 17, 2016

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Security Concerns Related to Foreign Preference Under Guideline C
Impact of Credibility on Security Clearance Decisions

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 based on concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant argued that the Judge erred in considering non-alleged conduct and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNicole L. Noel — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline C

What the Board reviewed

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.
Relied on conduct not alleged — raised by the applicantRejected
Applicant contended that the Judge considered matters not raised in the SOR.

Why the Board ruled this way

The Board found no error in the Judge's consideration of the evidence and concluded that the decision was sustainable on the record. The Judge's findings were consistent with the evidence presented, and the appeal arguments primarily reflected a disagreement with the Judge's weighing of the evidence.

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 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; Guideline C DIGEST: The Judge considered non-alleged conduct on the issues of credibility, mitigation, and the whole-person analysis. Disagreement with the Judge’s weighing of the evidence is not enough to show that the Judge erred. Adverse decision affirmed. CASE NO: 15-05294.a1 DATE: 11/17/2016 DATE: November 17, 2016 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-05294

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 23, 2015, 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 C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 23, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Nicole L. Noel 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 considered matters that were not raised in the SOR 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 Taiwan. He came to the U.S. as a child and became a naturalized citizen upon reaching his majority, in the mid-1980s. He received undergraduate and graduate degrees from U.S. universities. Applicant’s wife was born in Taiwan and is a naturalized citizen of the U.S. His in-laws are citizens and residents of Taiwan. Applicant’s wife maintains weekly contact with her parents. The couple traveled to Taiwan four times between 2010 and 2014. In his Response to the SOR, Applicant stated that, in completing a prior security clearance application (SCA) in 2003, he had disclosed his possession of a Taiwanese passport that had been issued in 1996. In fact, Applicant did not disclose this passport in the 2003 SCA. Applicant claims that he did not intentionally provide false information. He stated that he did not disclose the passport because he did not use it. He did disclose the passport on his 2014 SCA. Applicant renewed his Taiwanese passport in order to facilitate trips to Taiwan. He stated that he did so in order to avoid possible mistaken identity. Taiwan has a strong relationship with the U.S. That country has an interest in information from the U.S. that would aid in its defense. The Peoples Republic of China maintains intelligence operations in Taiwan. In addition, Taiwan itself has a history of espionage against the U.S. The Judge’s Analysis The Judge cited to evidence that Taiwan engages in espionage against the U.S. in an effort to obtain economic and proprietary information. Moreover, she stated that there is evidence that Taiwan’s intelligence bureau “specifically targets U.S. citizens with connections to Taiwan.” Decision at 6. She stated that Applicant’s evidence was not enough to mitigate concerns arising from his Taiwanese in-laws. She also noted evidence that Applicant has held a Taiwanese passport and has used it to enter that country several times recently. He provided no evidence that his use of the foreign passport was approved by an appropriate security authority. Moreover, Applicant continues to possess the Taiwanese passport. She concluded that Applicant had not mitigated the concerns alleged under Guideline B or C. In the whole-person analysis, the Judge cited to evidence that Applicant had not disclosed his foreign passport when completing the 2003 SCA. She noted that non-alleged conduct may not serve as an independent basis for denying a clearance. However, she stated that such conduct may be considered for things such as evaluating an applicant’s credibility, his case for mitigation, or for performing a whole-person analysis. She stated that Applicant’s omission called his credibility into question. Noting Applicant’s contention that he had not knowingly or willfully provided false information, she stated that his age and educational level at the time undermined that argument.

DISCUSSION

Applicant challenges the Judge’s treatment of the non-alleged SCA omission. He contends that the Judge erred in finding that it was deliberate. Prior to the closure of the record, the Judge queried both parties about Applicant’s contention that he had disclosed his Taiwanese passport in 2003. She gave them an opportunity to provide information about the prior clearance and whether Applicant had received approval for his possession of a foreign passport at the time the clearance was approved. In response, Department Counsel submitted a supplement to the File of Relevant Material (FORM). This supplement included a copy of the 2003 SCA, in which Applicant denied that he had a foreign passport. The Judge gave Applicant an opportunity to respond to this supplement. Decision at 3. He provided a response, which the Judge included in the record. As stated above, the Judge considered the non-alleged omission on the questions of credibility, mitigation, and the whole-person, which was permissible. See, e.g., ISCR Case No. 14-00151 at 3, Note 1 (App. Bd. Sept. 12, 2014). Under the circumstances, we find no error in the Judge’s consideration of Applicant’s omission. Although Applicant challenges her finding that it was deliberate, we conclude that it was consistent with the record that was before her. Moreover, we have considered the totality of Applicant’s appeal arguments and conclude that they consist principally of a disagreement with the Judge’s weighing of the evidence, which is not enough to demonstrate error. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board