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ISCR 16-02435.a1: Guideline B security clearance appeal, denied (2018) · CASE

ISCR Case 16-02435.a1denied

Case headnote

ISCR Case No. 16-02435.a1

May 15, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence). The denial was upheld on appeal, citing the applicant's vulnerability to coercion and the heightened risk associated with China's aggressive intelligence practices.

Disqualifying conditions under Guideline B, specifically B2, were raised due to several factors. The applicant maintained frequent contact with relatives residing in China. Furthermore, his past political activities had previously drawn attention from Chinese authorities, which was seen as an indicator of potential coercion risk.

The decision also considered China's documented history of exploiting its citizens for intelligence purposes, which contributed to the overall assessment of heightened risk. Ultimately, the security clearance was denied.

Conditions referenced

Disqualifying

B2raisedForeign Contacts and Activities

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 issuedOct 15, 2016
Answer filed—
Hearing heldFeb 8, 2018
Decision dateMay 15, 2018

Cite for

Heightened Risk of Coercion Due to Foreign Connections Under Guideline B
Impact of Foreign Government Actions on Security Clearance Eligibility
Consideration of Totality of Evidence in Foreign Influence Cases

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 who was denied a security clearance due to concerns under Guideline B related to foreign influence. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no reason to disturb the Judge's conclusion that Applicant's circumstances raise security concerns under Guideline B, affirming the decision based on substantial evidence and the totality of the record.

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
Charles C. Hale

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: In analyzing whether an applicant’s foreign connections raise a concern of heightened risk, a Judge should consider the totality of the record evidence. Pertinent factors include the nature of the foreign government, its intelligence gathering history, its human rights record, and the extent to which its interests are adverse to the U.S. Applicant’s frequent contact with his foreign relatives, his having come to the attention of Chinese authorities due to his political activities, China’s history of exploiting its citizens for intelligence purposes, and its status as an aggressive collector of U.S. information are sufficient to establish a heightened risk. We find no reason to disturb the Judge’s conclusion that Applicant’s circumstances raise security concerns under Guideline B. Adverse decision affirmed. CASENO: 16-02435.a1 DATE: 05/15/2018 DATE: May 15, 2018 In Re: -----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02435

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 October 15, 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 hearing. On February 8, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc Curry 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 and Analysis Applicant was born, raised, and educated in China. He came to the U.S. in the late 1980s and became a naturalized citizen in the early 2000s. He has siblings who are citizens and residents of China, whom he contacts every other month. Applicant has a sibling who lives in another country but who owns a home in China. His mother-in-law is also a citizen and resident of China. Applicant has traveled to China five times since he came to the U.S. Applicant has a substantial net worth in the U.S. While he lived in China, Applicant became involved in pro-democracy advocacy. He came to the attention of Chinese authorities who, after Applicant had left the country, came to his place of employment to detain him. Applicant did not return to China for several years. China is a totalitarian state that exerts pressure on citizens by such means as house arrest and forced disappearances. It is a strategic competitor of the U.S. and is an aggressive collector of U.S. information and technology. Chinese intelligence services often try to exploit Chinese citizens or those with ties to China in hopes of acquiring trade secrets electronically. The Judge concluded that Applicant’s foreign relatives render him vulnerable to coercion. Although Applicant has lived in the U.S. for many years, he concluded that China’s history of oppressing its citizens and its attempts to acquire U.S. information preclude a favorable determination. The Judge noted especially evidence that Applicant had already come to the attention of Chinese authorities. Though commending Applicant for his courage and his many ties within the U.S., the Judge ultimately concluded that he had not met his burden of persuasion.

DISCUSSION

Applicant contends that his foreign relatives should not automatically raise a security concern. Rather, such a concern should arise only when foreign contacts pose a heightened risk of exploitation, inducement, pressure, or coercion. The Directive presumes that there is a nexus, or a rational connection, between admitted or proved circumstances under any of the Guidelines and an applicant’s eligibility for access to classified information. See, e.g., ISCR Case No. 15-08842 at 2 (App. Bd. Feb. 14, 2017). In making a determination as to whether an applicant’s foreign connections raise a concern such as a heightened risk of coercion, a Judge should consider the totality of the record evidence. Pertinent factors include the nature of the foreign government, its intelligence gathering history, its human rights record, and the extent to which its interests are adverse to the U.S. See, e.g., ISCR Case No.15-00528 at 3 (App. Bd. Mar. 13, 2017). In the case under consideration, Applicant’s frequent contact with his foreign relatives, his having come to the attention of Chinese authorities due to his political activities, China’s history of exploiting its citizens for intelligence purposes, and its status as an aggressive collector of U.S. information are sufficient to establish a heightened risk that Applicant’s foreign connections could become a means through which he could be subjected to pressure. We find no reason to disturb the Judge’s conclusion that Applicant’s circumstances raise security concerns under Guideline B. Applicant challenges some of the Judge’s findings. He argues, for example, that Chinese authorities came looking for him only a week after he left the country, rather than the six weeks that the Judge had found. He also claims that the authorities discovered him through a journal maintained by another pro-democracy advocate rather than during an office raid. Even if the Judge erred as Applicant contends, it did not likely affect the overall outcome of the case. Therefore, any such errors are harmless. The Judge’s material findings of security concern are based upon substantial evidence. Id. Applicant has cited to no harmful error in the Judge’s findings of fact. The balance of Applicant’s appeal brief includes arguments that the Judge did not consider all of the evidence and that the Judge’s weighing of the evidence was arbitrary, capricious, or contrary to law. In Foreign Influence cases, the nature of the foreign government involved and the intelligence-gathering history of that government are among the important considerations that provide context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is another important consideration. See, e.g., ISCR Case No. 15-00528 at 3 (App. Bd. Mar. 13, 2017). After examining the Decision as a whole, we conclude that Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-00257 at 3 (App. Bd. Dec. 7, 2017). 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board