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ISCR Case 06-25743.a1 — CASE

ISCR Case 06-25743.a1denied

Case Headnote

ISCR Case No. 06-25743.a1

Jan 10, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated concerns regarding his ties to Taiwan. The Appeal Board affirmed the denial, concluding that the applicant did not meet the burden of proof to establish mitigation of the security risks.

The judge articulated reasonable concerns about the applicant's close family ties and significant financial interests in Taiwan. These connections were deemed to create a potential conflict of interest, which the applicant failed to adequately address.

Specifically, the disqualifying conditions under Adjudicative Guideline (AG) ¶ 7 were raised, and the applicant did not successfully demonstrate the application of mitigating conditions under AG ¶ 8. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedFeb 22, 2007
Answer filed—
Hearing heldAug 16, 2007
Decision dateJan 10, 2008

Cite For

Burden of Proof for Mitigation Under Guideline B
Consideration of Foreign Influence in Security Clearance Cases
The Whole-person Concept in Adjudicating Security Clearance 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 seeking a security clearance who was denied due to security concerns related to ties to Taiwan. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the denial, finding the Judge's conclusions were supported by substantial evidence and properly weighed the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the Judge's findings were arbitrary, capricious, or contrary to law. The Judge reasonably weighed the evidence and articulated a rational explanation for the unfavorable determination.

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

Jean E. Smallin
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

KEYWORD: Guideline B DIGEST: Applicant failed to mitigate security concerns arising out of his ties to Taiwan. Prior Hearing Office cases are not binding on the Appeal Board. Adverse decision affirmed. CASENO: 06-25743.a1 DATE: 01/10/2008 DATE: January 10, 2008 In Re: --------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-25743

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Fahryn Hoffman, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 22, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) of The Judge found in favor of Applicant with respect to SOR paragraphs 1.cand 1.f. Those favorable findings are not at issue on appeal. Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 16, 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 is arbitrary, capricious, or contrary to law. Applicant contends that the Judge erred in concluding that the security concerns raised under Guideline B had not been mitigated. In support of that contention, Applicant essentially restates the facts of his case and argues that the Judge mis-weighed the evidence, by failing to give adequate consideration to the favorable evidence. Based upon the record as a whole, Applicant asserts that the security concerns presented by his ties to Taiwan were outweighed by his ties to the United States. Applicant also argues that the Judge erred with respect to several of her findings and that her overall unfavorable conclusion is inconsistent with other hearing-level decisions in which applicants in ostensibly similar circumstances had been granted a clearance. Applicant’s arguments do not demonstrate error on the part of the Judge. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). We have considered the challenged findings in light of the record and conclude they are based on substantial evidence. Applicant has not met his burden of demonstrating that the Judge’s material findings as to his circumstances of security concern, and the inferences drawn from those findings, do not reflect a reasonable or plausible interpretation of the record evidence. Applicant points to several hearing-level cases by the Judge which he contends support granting him a clearance. The Board gives due consideration to these cases. See, e.g., ISCR Case No. 06-05903 at 3 (App. Bd. Oct. 15, 2007). However, the Board has previously noted that decisions in other hearing-level cases are not legally binding precedent, even if an applicant can establish close factual similarities between those cases and his case. See, e.g., ISCR Case No. 04-04004 at 2 (App. Bd. Jul. 31, 2006). Accordingly, the Judge was not legally obligated to reconcile her decision in this case with her decisions in other ostensibly similar cases. See, e.g., ISCR Case No. 02-24752 at 3 (App. Bd. Jul. 31, 2006). “The adjudicative process is the careful weighing of a number of variables known as the whole-person concept.” Directive at ¶ 2.(a). “Each case must be judged on its own merits . . .” Id at ¶ 2.(b).

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 06-04371 at 2 (App. Bd. Oct.18, 2007). “ Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa.” See, e.g. ISCR Case No. 06-09542 at 2 (App. Bd. Sep. 4, 2007). “An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.” See, e.g., ISCR Case No. 06-08116 at 2 (App. Bd. Jul. 2, 2007). 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 with respect to several of the factual allegations. However, she reasonably explained why the evidence which the 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 ¶ 2.(c). In some instances, this process led to favorable findings for Applicant. However, the Judge also articulated a reasonable concern that Applicant's circumstances could create a conflict of interest or be used to influence, manipulate, or pressure him. That concern is based on close family ties and significant financial interests 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. Directive ¶ 2.(b).

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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