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ISCR 04-10804.a1: Guideline B security clearance appeal, denied (2007) · CASE

ISCR Case 04-10804.a1denied

Case headnote

ISCR Case No. 04-10804.a1

Aug 10, 2007· Hon. Michael D. Hipple· appeal

Summary

A U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence) due to significant security concerns stemming from family ties in the People's Republic of China (PRC) and prior travel to the country. The Appeal Board affirmed the denial, upholding the judge's findings regarding the applicant's background and connections.

The primary disqualifying condition raised was AG B1, which addresses foreign influence. The applicant failed to demonstrate that he had mitigated the risks associated with these foreign connections.

Ultimately, the judge's findings concerning the applicant's ties to the PRC were deemed sustainable, leading to the denial of the security clearance. The Appeal Board found no bias in the judge's decision.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

Key rule quoted

“There is a rebuttable presumption that the Judge was unbiased and impartial, and a party seeking to rebut that presumption has a heavy burden on appeal.”
ISCR Case No. 04-03834 at 2 (App. Bd. Jul. 2, 2007)

Procedural posture

SOR issuedAug 21, 2006
Answer filed—
Hearing heldDec 28, 2006
Decision dateAug 10, 2007

Cite for

Security Concerns Under Guideline B Related to Foreign Influence
Rebuttable Presumption of Judicial Impartiality
Burden of Persuasion on the Applicant for Security Clearance

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under Guideline B (Foreign Influence). The applicant argued that the Judge was biased and that the decision was arbitrary and capricious. The Board found no harmful errors and affirmed the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowChristopher Graham denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.
Judge bias or partiality, raised by the applicantRejected
The Judge was biased against the applicant.

Why the Board ruled this way

The Board found no error in the Judge's decision and affirmed the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Michael D. Hipple
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline B DIGEST: There is a rebuttable presumption that a Judge is unbiased and impartial and a party seeking to rebut that presumption has a very heavy burden on appeal. Adverse decision affirmed. CASENO: 04-10804.a1 DATE: 08/10/2007 DATE: August 10, 2007 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-10804

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 21, 2006, DOHA issued a statement of reasons 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 December 28, 2006, after the hearing, Administrative Judge Christopher Graham denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant has raised the following issues on appeal: whether the Judge was biased against him and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following sustainable findings of fact: Applicant is a senior employee of a federal contractor. He immigrated to the U.S. from China (PRC), earning masters degrees from U.S. universities. He became a U.S. citizen in 2002. He is legally separated from his wife, a PRC national whom he married in the PRC in 1986. He has two teenage daughters who live with him. Applicant’s mother, two brothers, and sister are citizens and residents of the PRC. He has another sister, who is a resident of a European country and through whom he communicates with his PRC relatives. None of his relatives work for the PRC government. Applicant has traveled to the PRC on seven occasions between 1997 and 2002. These trips were for vacations. He also traveled there in 2006, upon the death of his father. He stopped vacationing in the PRC after he became a U.S. citizen. He holds a U.S. passport, his previous PRC passport having been invalidated. The Judge found that the PRC has a poor human rights record, that it “engages in espionage against the United States through an extensive network of businesses, personnel, and specific programs designed to acquire advanced U.S. military technology.” Decision at 4. One method which the PRC uses to collect information about the U.S. is to attempt to enlist ethnic Chinese who live in the U.S. to cooperate in technology transfer. There is a rebuttable presumption that the Judge was unbiased and impartial, and a party seeking to rebut that presumption has a heavy burden on appeal. See ISCR Case No. 04-03834 at 2 (App. Bd. Jul. 2, 2007). We have examined the Judge’s decision and the record as a whole. We find nothing therein to indicate “that the Judge acted in a manner that would lead a disinterested person to question” his “fairness or impartiality . . .” ISCR Case No. 02-06478 at 4 (App. Bd. Oct. 25, 2004). Furthermore, in light of the Judge’s findings of fact and the record, his decision that Applicant has not met his burden of persuasion is sustainable. See Directive ¶ E3.1.15. (“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”) See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’”)

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board