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ISCR Case 07-01474.a1 — CASE

ISCR Case 07-01474.a1denied

Case Headnote

ISCR Case No. 07-01474.a1

Aug 26, 2008· Hon. Michael D. Hipple· appeal

Summary

A defense contractor employee, originally from Taiwan, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant's strong familial ties to Taiwan and possession of a Taiwanese passport were identified as disqualifying conditions.

Specifically, the applicant's obligations to family members in Taiwan were deemed to outweigh his ties to the U.S., raising concerns about potential foreign influence. The continued possession of a Taiwanese passport also contributed to the foreign preference concerns.

The appeal board upheld the denial, concluding that the applicant did not meet the burden of persuasion for mitigation. Insufficient evidence was provided to alleviate the security concerns related to his foreign ties and preference.

Conditions Referenced

Disqualifying

AG BraisedForeign Influence
AG CraisedForeign Preference

Key Rule Quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.'”
— Directive ¶ E3.1.32.1

Procedural Posture

SOR issuedOct 9, 2007
Answer filed—
Hearing heldMay 30, 2008
Decision dateAug 26, 2008

Cite For

Security Concerns Under Guideline B Due to Foreign Influence From Family Ties
Security Concerns Under Guideline C Due to Possession of a Foreign Passport
Burden of Persuasion for Mitigation Not Met by the Applicant

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 a denial of a security clearance based on foreign influence and preference concerns. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact were not based on substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance 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 harmful error in the Judge's decision, affirming that the findings were based on substantial evidence and that any potential errors were harmless.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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

KEYWORD: Guideline B; Guideline C DIGEST: The Judge noted Applicant’s ties to the U.S. and his employment. The Judge also took into account his strong ties to his Taiwanese family members, his voluntary trips to visit them, and a paucity of record evidence concerning the relative strength of his obligations to the U.S. and his obligations to his family members in Taiwan. Balancing evidence of the disqualifying and mitigating conditions, the Judge concluded that Applicant had not met his burden of persuasion as to mitigation. Applicant submitted new evidence in support of his appeal. The Board cannot consider new evidence in performing appellate review. The Judge’s material findings of security concern are based upon substantial record evidence To the extent that the Judge’s findings may contain error, such error is harmless in that it would not likely affect the outcome of the case CASENO: 07-01474.a1 DATE: 08/26/2008 DATE: August 26, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-01474

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 October 9, 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 decision on the written record. On May 30, 2008, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are based upon substantial record evidence; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no harmful error, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is an employee of a defense contractor. He was born in Taiwan. After graduating from a university there “he served a little less than two years in the Taiwanese military. This service was mandatory.” Decision at 2. After completing his military service, he moved to the U.S., where he received a Ph.D. He worked in Taiwan for the Taiwanese Government for four years, after which he returned to the U.S. Applicant began working for his current employer in 1996. He became a U.S. citizen in May 2002 and received a U.S. passport a month later. Applicant’s parents, and two of his siblings, are citizens and residents of Taiwan. He visited Taiwan in 2000 and 2002 for the purpose of visiting his family. During the latter trip he traveled on both a U.S. and a Taiwanese passport. He had obtained the latter passport before becoming an American citizen. By letter dated January 22, 2008, Applicant’s security officer advised that Applicant had surrendered his passport and that the document would be destroyed. Applicant has described his relationship with his Taiwanese relatives as close. He speaks with his parents once a month and with his siblings once every other month. Taiwan is a multi-party democracy with a population of about 23 million. “It is one of the most active collectors of sensitive United States information and technology. Numerous individuals and companies have been subjected to civil penalties and/or prosecuted for illegally exporting, or attempting to illegally export, sensitive United States technology to Taiwan.” Id. at 3. In evaluating Applicant’s case, the Judge noted Applicant’s ties to the U.S., i.e., his wife and children, and his employment. However, the Judge also took into account his strong ties to his Taiwanese family members, his voluntary trips to visit them, and a paucity of record evidence concerning the relative strength of his obligations to the U.S. and his obligations to his family members in Taiwan. Balancing evidence of the disqualifying and mitigating conditions, the Judge concluded that Applicant had not met his burden of persuasion as to mitigation. Id. at 7. Applicant stated, for example, that his wife was not born in the U.S., as the Judge had found, and that his previous employment in Taiwan was in a scientific, rather than a defense-related, field. Applicant submitted new evidence in support of his appeal. The Board cannot consider new evidence in performing appellate review. See Directive E3.1.29. We have examined the Judge’s findings in light of the record as a whole. The Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) To the extent that the Judge’s findings may contain error, such error is harmless in that it would not likely affect the outcome of the case. A review of the entire record demonstrates that the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision, both as regards to the pertinent mitigating conditions and the whole-person analysis. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 Judge’s decision that “it is not clearly consistent with national security to grant [A]pplicant eligibility for a security clearance” is sustainable on this record. Decision at 7. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision 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