CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 15-06817.a1 — CASE

ISCR Case 15-06817.a1denied

Case Headnote

ISCR Case No. 15-06817.a1

Feb 12, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen was denied a security clearance under Guideline B (Foreign Influence) due to concerns arising from his wife's family ties in China. Specifically, a significant loan made by the applicant's wife to her nephew in China raised questions about potential conflicts of interest.

The judge determined that the applicant's connections and obligations to his wife's family were not minimal, despite the applicant's assertions of infrequent contact and language barriers. These arguments were deemed insufficient to mitigate the security concerns. The disqualifying conditions AG B2 and AG B3 were raised, while mitigating conditions AG B5 and AG B6 were considered but ultimately did not lead to a favorable outcome.

The appeal board affirmed the denial, upholding the judge's conclusion that the applicant's family ties and the financial obligation created an unmitigated potential conflict of interest, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG B2raisedForeign Contacts
AG B3raisedForeign Influence

Mitigating

AG B5rejectedInfrequent ContactThe judge found that the applicant's relationship with his wife's family was ongoing despite the language barrier.
AG B6rejectedNo Foreign InfluenceThe judge could not rule out a risk of foreign influence due to the applicant's connections.

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 issuedSep 10, 2016
Answer filed—
Hearing heldOct 23, 2017Decision on the written record.
Decision dateFeb 12, 2018Appeal affirmed.

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Family Ties on Security Clearance Decisions
Importance of National Security in Clearance Determinations

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 argued that the Judge's findings did not support the adverse decision. The Board affirmed the Judge's decision, finding no harmful error in the application of disqualifying and mitigating conditions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the findings do not support the Judge’s application of the disqualifying and mitigating conditions as well as her whole-person analysis.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by substantial evidence and that the applicant's disagreement with the Judge's weighing of the evidence did not demonstrate that the decision was arbitrary or capricious.

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 DIGEST: Applicant contends that the findings do not support the Judge’s application of the disqualifying and mitigating conditions as well as her whole-person analysis. He cites to such things as the significant language barrier between Applicant and his in-laws and what he considers to be the infrequency of their direct contact. He also argues that Applicant’s relationship with H and W is casual and infrequent. Applicant’s argument is, in effect, a disagreement with the Judge’s weighing of the evidence. Such a disagreement is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. The evidence described above, viewed in its totality, supports the Judge’s overall adverse conclusions. Adverse decision affirmed. CASENO: 15-06817.a1 DATE: 02/12/2018 DATE: February 12, 2018 In Re: --------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06817

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT I. Charles McCullough, III, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 10, 2016, 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 decision on the written record. On October 23, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: 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’s wife was born in China, becoming a naturalized U.S. citizen in the late 1990s. Applicant’s wife’s mother, siblings, and nephews and niece are citizens and residents of China. Applicant does not speak Chinese, and his in-laws do not speak English. Therefore, they are not able to communicate directly with one another. A few years ago, Applicant’s wife loaned her nephew $20,000 for down payment on a house. Applicant’s wife has kept this transaction separate from Applicant. The couple expects to be repaid, but Applicant provided no information as to the extent to which the nephew has made payments on the loan. Applicant travels with his wife about once a year to visit her family. They stay in a hotel when they visit. Applicant and his wife are friends with H and W, who are citizens and residents of China. H is employed by the Chinese government. Applicant’s wife has been friends with W since college. Applicant met the couple in about 2008 during a visit to China. His wife owned a townhouse in the U.S. and rented it to H and W while they were in this country. The lease was signed by H and by a representative of the Chinese government, and the Chinese government paid the rent. Although initially the checks were deposited in his wife’s account solely, they were later placed in a joint account. Applicant states that H and W are not aware of his contractor job and they never discuss their jobs among themselves. China is one of the most aggressive collectors of U.S. economic information. Its intelligence agencies, as well as private companies, often try to exploit Chinese citizens or persons with family ties to China. It represents a growing and persistent threat to U.S. economic security. It uses cyber capabilities in furtherance of its effort to obtain U.S. protected information. It targets computer systems around the globe, including those owned by the U.S. Government. Visitors to China may be placed under surveillance. Hotel rooms, telephones, internet connections, etc. may be monitored, and personal possessions in hotel rooms may be searched without the owner’s knowledge or consent. The Judge’s Analysis The Judge concluded that, despite the language barrier, Applicant’s family relations in China create a potential conflict of interest. The Judge stated that Applicant and his wife maintain an ongoing relationship with her family, the closeness of which is suggested by the loan Applicant’s wife made to her nephew. The Judge concluded that Applicant’s sense of obligation to his wife and her family is not minimal. She also noted evidence about Applicant and his wife’s relationship with H and W, concluding that, given evidence that H works for the Chinese government, she could not rule out a risk of foreign influence arising from this relationship.

DISCUSSION

Although he admitted the SOR allegations and agreed with the bulk of the Judge’s findings, Applicant contends that the findings do not support the Judge’s application of the disqualifying and mitigating conditions as well as her whole-person analysis. He cites to such things as the significant language barrier between Applicant and his in-laws and what he considers to be the infrequency of their direct contact. He also argues that Applicant’s relationship with H and W is casual and infrequent. Applicant’s argument is, in effect, a disagreement with the Judge’s weighing of the evidence. Such a disagreement is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No.15-07062 at 2 (App. Bd. Nov. 21, 2017). The evidence described above, viewed in its totality, supports the Judge’s overall adverse conclusions. The Judge examined the relevant evidence 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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