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ISCR Case 06-24789.a1 — CASE

ISCR Case 06-24789.a1denied

Case Headnote

ISCR Case No. 06-24789.a1

Feb 8, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing herself, was denied a clearance primarily due to concerns under Guideline B (Foreign Influence). The applicant's family ties in Taiwan, specifically her father's role as a public affairs officer there, raised significant security concerns regarding potential foreign influence.

While the judge made favorable findings for the applicant under Guideline C (Foreign Preference), these were insufficient to mitigate the issues identified under Guideline B. The judge determined that the applicant's presented evidence did not adequately address the government's security concerns related to her foreign ties.

Ultimately, the applicant's explanations on appeal failed to demonstrate any error in the judge's initial decision. Consequently, the security clearance was denied based on the unresolved foreign influence concerns.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge articulated a rational basis for not favorably applying any mitigating conditions with respect to the Guideline B allegations.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedJan 30, 2007
Answer filed—
Hearing heldSep 27, 2007
Decision dateFeb 8, 2008

Cite For

Vulnerability to Foreign Influence Due to Family Ties Under Guideline B
Insufficiency of Mitigating Evidence to Compel a Favorable Decision
Burden of Persuasion Lies with the Applicant to Mitigate Security Concerns

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). The applicant argued that the Judge's decision was arbitrary and capricious, particularly regarding her father's employment status. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the applicant's circumstances.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

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 security clearance decision under Guideline B was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge articulated a reasonable concern regarding the applicant's vulnerability to foreign influence and that the applicant's arguments did not demonstrate error in the Judge's decision.

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
Jean E. Smallin
William S. Fields

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; Guideline C DIGEST: The Board may not consider new evidence on appeal. The fact that Applicant’s explanations and mitigating evidence did not lead the Judge to the decision desired by Applicant does not establish error. The Judge articulated a reasonable concern that Applicant’s circumstances could make her vulnerable to foreign influence. Adverse decision affirmed. CASENO: 06-24789.a1 DATE: 02/08/2008 DATE: February 8, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-24789

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 The Judge’s favorable decision under Guideline C is not at issue on appeal. clearance. On January 30, 2007, DOHA 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 hearing. On September 27, 2007, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision under Guideline B is arbitrary, capricious, or contrary to law.1 Applicant argues that the Judge erred, as a matter of law, in concluding that she was vulnerable to foreign influence because Applicant’s father does not hold a high-level job in the Taiwanese government. Rather, he is an ordinary public affairs officer responsible for furthering Taiwan’s cultural interests. As part of her brief, Applicant offers new evidence which indicates that her father intends to immigrate to the United States and retire here, and that she has applied for a visa on his behalf. The Board does not find Applicant’s argument persuasive. The Board may not consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06- 23748 at 2 (App. Bd. Oct. 11, 2007). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. Thus, Applicant had the burden of presenting evidence to rebut, explain, extenuate or mitigate facts that the Department Counsel proved or that Applicant admitted regarding her foreign family ties. Applicant also had the ultimate burden of persuasion as to obtaining a favorable security clearance decision. Directive ¶ E3.1.15. The Judge had to evaluate Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and decide whether Applicant had met her burden of persuasion under Directive ¶ E3.1.15. The fact that Applicant’s explanations and her mitigating evidence did not lead the Judge to the decision desired by Applicant does not establish error. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions and factors. The Judge found in favor of Applicant under Guideline C, and articulated a rational basis for not favorably applying any mitigating conditions or factors with respect to the Guideline B allegations. She reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Judge’s decision exhibits a discerning weighing of a number of variables to reach a commonsense determination. Directive ¶ E2.2. In some instances, as noted earlier, this process led to favorable findings for Applicant. However, the Judge also articulated a reasonable concern that Applicant's circumstances could potentially make her vulnerable to foreign influence. The security concern is based upon close family ties in Taiwan, considered in the context of the overall political/security profile of that country vis-a-vis the United States. Applicant offers an alternative interpretation of the record evidence. However, that alternative interpretation of the record evidence is insufficient to render the Judge’s interpretation arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13, 2006). The Judge has articulated a rational explanation for her unfavorable determination under the disqualifying and mitigating factors and the whole-person concept, and there is sufficient record evidence to support that determination—given the standard that required the Judge to err on the side of national security. See, e.g., ISCR Case No. 06-04371 at 3 (App. Bd. Oct. 18, 2007).

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board