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ISCR 05-10467.a1: Guideline B security clearance appeal (2007) · CASE

ISCR Case 05-10467.a1unknown

Case headnote

ISCR Case No. 05-10467.a1

May 8, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This DOHA security clearance case involved an American citizen with concerns under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The applicant's family ties in the People's Republic of China, specifically his wife and in-laws, were central to the foreign influence concerns.

While the Administrative Judge initially granted a security clearance, the DOHA Appeal Board reversed this decision. The Board found that the applicant had not adequately mitigated the security risks associated with his family connections in China. The Administrative Judge's "whole-person" analysis was deemed unsustainable and arbitrary, lacking a rational connection between the presented facts and the decision to grant clearance.

Ultimately, no security clearance was granted. The applicant's unmitigated ties to family members in the People's Republic of China remained a significant security concern, leading to the reversal of the initial clearance decision.

Conditions referenced

Disqualifying

FIMC 1raisedForeign Influence Mitigating Condition 1The applicant did not meet the burden to rebut, extenuate, or mitigate the security concerns raised.
FIMC 4raisedForeign Influence Mitigating Condition 4The application of this condition alone did not overcome the security concerns.
Guideline BraisedForeign InfluenceThe presence of the applicant's in-laws in the PRC posed a security risk.

Mitigating

FIMC 1rejectedForeign Influence Mitigating Condition 1The Judge improperly shifted the burden to the government to prove that the risk exists.
FIMC 4rejectedForeign Influence Mitigating Condition 4The factors identified did not suggest sufficient mitigation of the security concerns.

Key rule quoted

“An Administrative Judge is required to 'examine the relevant data and articulate a satisfactory explanation for' the decision 'including a ‘rational connection between the facts found and the choice made.'”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)

Procedural posture

SOR issuedNov 21, 2005
Answer filed—
Hearing heldAug 4, 2006
Decision dateMay 8, 2007

Cite for

Insufficient Evidence to Support Mitigating Conditions Under Guideline B
Whole-person Analysis Must Connect Facts to Conclusions
Burden of Proof Shifts to Applicant When Security Concerns Are Raised

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

Reversed

The appeal involved a decision by an Administrative Judge granting a security clearance to the applicant, which was challenged by Department Counsel. The Board found that the Judge's application of mitigating conditions related to foreign influence was arbitrary and unsupported by evidence, leading to a reversal of the favorable decision.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowBarry M. Sax granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Administrative Judge's application of Foreign Influence Mitigating Conditions 1 and 4 was arbitrary and capricious and unsupported by the record evidence.
Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Error sustained
The Judge's whole-person analysis was unsustainable as it relied on unsupported considerations.

Why the Board ruled this way

The Board found that the Administrative Judge's application of mitigating conditions was arbitrary and capricious, and the whole-person analysis was unsustainable due to lack of supporting evidence.

No rational connection between facts and conclusionIgnored material evidence

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
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: The record evidence does not support the Judge’s application of Guideline B Mitigating Condition 1. The Judge’s whole person analysis is unsustainable. Favorable decision reversed. CASENO: 05-10467.a1 DATE: 05/08/2007 DATE: May 8, 2007 In Re: -------------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-10467

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jennifer I. Goldstein, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 21, 2005, 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 August 4, 2006, after the hearing, Administrative Judge Barry M. Sax Directive ¶ E2.A2.1.3.1 (“A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States”). Directive ¶ E2.A2.1.3.4 (“The individual has promptly reported to proper authorities all requests, contacts, or threats from persons or organizations from a foreign country as required”). granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issues on appeal: whether the Administrative Judge’s application of Foreign Influence Mitigating Conditions (FIMC) 1 and 4 is arbitrary and capricious and unsupported by the record evidence; and whether the Judge’s whole-person analysis is unsustainable because the whole-person considerations relied upon are unsupported by the record evidence and their application is arbitrary, capricious, and contrary to law. We reverse the Judge’s decision to grant a security clearance. Whether the Record Supports the Judge’s Factual Findings Facts: The Administrative Judge made the following relevant findings of fact: Applicant is an American citizen by birth. Applicant’s wife is a citizen of the People’s Republic of China (PRC), who has applied for U.S. citizenship. Applicant’s parents-in-law and brother-in-law are citizens and residents of the PRC. Applicant’s parents-in-law suffered under the Cultural Revolution. Applicant’s father-in-law is a retired university professor and dean of a teachers’ college.

DISCUSSION

Discussion: The Administrative Judge’s findings of fact are not challenged on appeal. Whether the Record Supports the Administrative Judge’s Ultimate Conclusions An Administrative Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Appeal Board may reverse the Administrative Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Our scope of review under this standard is narrow, and we may not substitute our judgment for that of the Administrative Judge. We may not set aside an Administrative Judge’s decision “that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency. . .” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42. We review matters of law de novo. In footnote 4 of the Judge’s decision, there is a discussion of an Appeal Board decision where the Board affirmed a Judge’s decision in part based on testimony that the Applicant in that case had repeatedly told his wife in blunt and graphic terms he would not compromise national security even if her relatives were harmed by the PRC. There is no comparable evidence in this case. Thus, it is not clear what purpose was served by the Judge’s discussion of the prior case. Department Counsel argues that the Administrative Judge’s application of FIMC 1 and 4 is arbitrary and capricious and unsupported by the record evidence. With regard to FIMC 1 in particular, Department Counsel’s argument has merit. When the government has established that security concerns have been raised, as is the case here with regard to Applicant’s in-laws, the burden shifts to Applicant to rebut, extenuate, or mitigate those concerns. See, e.g. ISCR Case No. 99-0532 at 7 (App. Bd. Dec. 13, 2000). The Judge points out that Applicant has a heavy burden to satisfy FIMC 1. The Judge states that “there is nothing in the evidence establishing whether or not Applicant’s relatives in the PRC are/may be/might be/could be agents of the PRC government, or are in a position to be used, voluntarily or not, knowingly or not, to seek to persuade Applicant to act against U.S. security interests.” Decision at 6. The Judge goes on to say that the security risk posed by the presence of Applicant’s in-laws in the PRC is “hypothetical.” Applicant has not met his burden to rebut, extenuate, or mitigate the security concerns raised in this case. Even if we accept that Applicant’s in-laws in the PRC are not agents of a foreign power, their vulnerability to exploitation or coercion has not been mitigated. Indeed, they were mistreated during the Cultural Revolution. The Judge improperly shifted the burden to the government to prove that the risk exists. The record does not support the Judge’s application of FIMC 1.3 Department Counsel’s argument regarding the Administrative Judge’s application of FIMC 4 has less merit. Applicant testified that he properly notified the appropriate officials of his marriage to a foreign national and his visits to the PRC. There is no allegation or evidence to the contrary. However, in light of the evidence as a whole and in light of the error identified with regard to FIMC 1, the Judge’s application of FIMC 4 by itself would not overcome the security concerns raised by Applicant’s foreign in-laws. In this case, the facts identified by the Judge in applying FIMC 4 do not readily suggest refutation, extenuation, or mitigation, and they have low probative value in light of the security concerns identified in this case. See, e.g., ISCR Case No. 05-01820 at 4 (App. Bd. Dec. 14, 2006). Department Counsel contends that the Judge’s whole-person analysis is unsustainable because the whole-person considerations relied upon are unsupported by the record evidence and their application is arbitrary, capricious, and contrary to law. While we agree with Department Counsel’s argument as a whole, we disagree with Department Counsel’s contention that the factors listed in E2.2.2.1 of the Directive are the only ones that may be considered in performing a whole- person analysis in a Guideline B case. Other factors in an applicant’s life are relevant in a whole- person analysis. While the Judge properly notes Applicant’s maturity, integrity, and service to his country, he does not explain why these characteristics outweigh the security concerns raised by the presence of Applicant’s in-laws in the PRC. While Applicant stated that he would not act contrary to the interests of the U.S., the Board has previously held that such statements are of limited weight, given their hypothetical nature. See, e.g., ISCR Case No. 04-12435 at 4 (App. Bd. Apr. 9, 2007). The Judge’s whole-person analysis is not sustainable.

ORDER

The Administrative Judge’s decision granting Applicant a security clearance is REVERSED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board