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ISCR Case 07-02485.a1 — CASE

ISCR Case 07-02485.a1unknown

Case Headnote

ISCR Case No. 07-02485.a1

May 9, 2008· Hon. Jean E. Smallin· appeal

Summary

This case involved a U.S. citizen, born in the People's Republic of China (PRC), whose security clearance was challenged under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The primary concerns stemmed from her husband's PRC citizenship and her family's continued residency in the PRC.

The Appeal Board reversed an Administrative Judge's initial favorable decision. The Board determined that the potential for foreign influence, specifically from the PRC, was not adequately addressed. Disqualifying conditions under Guideline B included the husband's PRC citizenship and the applicant's family ties to the PRC, which presented a risk of foreign exploitation. The Board also noted the PRC's known practice of targeting U.S. citizens of Chinese ancestry for intelligence purposes.

While a mitigating condition (FIMC 8(b)) was considered, it was insufficient to overcome the significant foreign influence concerns. Ultimately, the Appeal Board concluded that the Administrative Judge's decision was contrary to national security interests, resulting in no security clearance being granted.

Conditions Referenced

Disqualifying

FIDC 7(a)raisedForeign Influence Disqualifying Condition 7(a)The applicant's ties to the PRC create a heightened risk of foreign exploitation.
FIDC 7(d)raisedForeign Influence Disqualifying Condition 7(d)The applicant shares living quarters with a PRC citizen, increasing the risk of foreign inducement.
Guideline BraisedGuideline B (foreign Influence)The applicant's foreign ties and family connections present significant security concerns.

Mitigating

FIMC 8(b)rejectedForeign Influence Mitigating Condition 8(b)The applicant's evidence of good job performance and U.S. ties was insufficient to mitigate the security concerns.

Key Rule Quoted

“A clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJun 29, 2007
Answer filed—
Hearing heldDec 10, 2007
Decision dateMay 9, 2008Appeal Board decision reversed the prior ruling.

Cite For

Reversal of Favorable Security Clearance Decisions Based on Foreign Influence Concerns
Significant Evidence of Foreign Ties Impacting Security Clearance Eligibility
Insufficient Mitigation of Security Concerns Related to Foreign Influence

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 security clearance decision where the Administrative Judge initially granted the Applicant's request. The Department Counsel appealed, arguing that the Judge failed to consider significant evidence related to foreign influence due to the Applicant's ties to the People's Republic of China. The Appeal Board found merit in the government's arguments and reversed the favorable decision, citing substantial evidence of security concerns.

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

Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
The Judge failed to take into account significant record evidence regarding the Applicant's foreign influence.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's whole-person analysis was arbitrary, capricious, or contrary to law.
Legal error — raised by the Government (Department Counsel)Error sustained
The Judge erred in not applying FIDC 7(d) regarding the Applicant's spouse being a citizen of the PRC.

Why the Board ruled this way

The Judge's favorable decision was reversed due to failure to consider significant evidence regarding foreign influence and an erroneous application of the relevant guidelines.

Ignored material evidenceNo rational connection between facts and conclusionOther

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: The Judge failed to take into account significant record evidence. The Judge erred in not applying FIDC 7(d) in light of the fact Applicant’s spouse is a citizen of the PRC. Judges must be guided by common sense with a view toward making a determination consistent with the interests of national security. Favorable decision reversed. CASENO: 07-02485.a1 DATE: 05/09/2008 DATE: May 9, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-02485

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 29, 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 Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 10, 2007, after the hearing, Administrative Judge Barry M. Sax granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge’s determination that the Government had not made a prima facie case under Guideline B is erroneous; whether the Judge’s application of the Guideline B mitigating conditions is erroneous; and whether the Judge’s whole-person analysis was arbitrary, capricious, or contrary to law. Finding error, we reverse. Whether the Record Supports the Judge’s Factual Findings A. Facts Applicant was born in the People’s Republic of China (PRC) in 1958. She came to the U.S. in the late 1980s, completing her education. She became a U.S. citizen in 2001. Her husband is a citizen of the PRC. He has postponed becoming a naturalized citizen because of his elderly father, who lives in China. “It is easier and faster for her husband to go to China, if his father suddenly became ill, if he was still able to use a Chinese passport.” Decision at 2. Applicant’s parents are citizens of the PRC but permanent residents of the U.S. They moved to the U.S. prior to the hearing in Applicant’s case. Applicant’s in-laws are citizens and residents of the PRC. Applicant’s brother is a citizen and resident of the PRC. Applicant speaks with him on the telephone “several times a year.” Decision at 3. Applicant traveled to the PRC in 1998, 2000, 2002, 2003, 2004, and August 2006 to visit her parents. Because they now live in the U.S., “she no longer has any need to travel” to the PRC. Id. Applicant has substantial assets in the U.S. “Applicant and her husband left any assets they had in [the PRC] when they left more than two decades ago.” Id. The PRC has an “authoritarian Communist government.” Its human rights record is poor. “The United States is a primary intelligence target of [the PRC] because of the U.S. role as a global superpower, its substantial military, political, and economic power . . . [The PRC] uses legal and illegal means, including espionage” to obtain military-related technology. Decision at 5. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support 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 Directive ¶ E2.7(a). from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel has not challenged the Judge’s findings. Her argument that the Judge’s application of the Guideline B mitigating conditions does not take into account significant record evidence will be addressed below. Whether the Record Supports the Judge’s Ultimate Conclusions A 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 choices 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the 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 and E3.1.33.3. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See 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. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). In deciding the case in Applicant’s favor, the Judge considered the application of Foreign Influence Disqualifying Condition (FIDC) 7(a). This provision of Directive describes security Government Brief at 8. See also Administrative Notice Document (AN) IV, Intelligence threat Handbook, June 2004, at 17. ON II, Country Report on Human Rights Practices, March 2007, at 9. See Directive ¶ 6, describing the Foreign Influence security concern. “Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.” Directive ¶ E2.7(d). concerns rasied when an applicant’s contact with, inter alia, a foreign relative “creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion . . .” The Judge stated that Applicant’s ties to the U.S. are such that “no ‘heightened risk’ has been shown that she would ever act improperly in a national security context. (Guideline B: Foreign Influence at 7.(a).” Decision at 6. In so doing, he apparently concluded that this disqualifying condition was not raised on the facts of Applicant’s case. Department Counsel contends that the Judge’s decision on this matter fails to take into account significant record evidence. That argument is persuasive. Department Counsel notes, for example, that the PRC is active in the collection of intelligence and sensitive proprietary information from U.S. defense contractors and that the PRC considers U.S. citizens of Chinese ancestry to be “prime intelligence targets.” The Board also notes other record evidence that the PRC monitors its citizens’ telephone, fax, and e-mail communications and routinely enters residences to obtain such data. These matters, read in conjunction with Applicant having family members who live in the PRC, are sufficient to constitute substantial evidence of the security risk outlined in the Directive. Given the PRC’s interest in U.S. intelligence, Applicant’s foreign relatives pose a real, rather than merely theoretical, risk that Applicant could be targeted for manipulation or induced into compromising classified information. Department Counsel also argues that the Judge erred in not considering FIDC 7(d), which identifies security concerns arising when an applicant shares “living quarters with a person or persons . . . if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion . . .” Again, Department Counsel’s argument is persuasive. Applicant lives with her husband, a citizen of the PRC, who in turn maintains contact with his father, a citizen and resident of the PRC. Read in light of the above-referenced record evidence concerning the PRC’s intelligence gathering activity, and the Judge’s findings on the same issue, the record contains substantial evidence of the sort of foreign influence security concern described in FIDC 7(d). Even if one interprets FIDC 7(a) and (d) narrowly, one must acknowledge that the Directive does not provide an exhaustive and exclusive list of disqualifying circumstances; rather, the matters listed in the disqualifying conditions are illustrative in nature and do not provide a Judge with a basis to conclude that factors or categories not explicitly described fall outside the general security concern of the guideline. In analyzing cases before them, Judges must be guided by common sense and with Directive ¶ E2.8(b). a view toward making a reasoned determination consistent with the interests of national security. The Judge’s conclusion that the Government has not presented substantial evidence of Guideline B security concerns is erroneous. The Judge did reference Foreign Influence Mitigating Condition (FIMC) 8(b) and the whole- person, raising the implication that, despite his having found no security concerns in Applicant’s case, he evaluated Applicant’s mitigation evidence in the alternative. The Board has examined the Judge’s relatively brief mention of these matters in light of the record as a whole. The Board concludes that the record does not support the view that Applicant has met her burden of persuasion that it is “clearly consistent with the interests of the national security” for her to have a clearance. Egan, 484 U.S. at 528. The fact that Applicant lives with a PRC citizen, her husband; that her husband maintains contact with his own father who is a citizen and resident of the PRC; that Applicant’s brother is a citizen and resident of the PRC; that Applicant speaks with her brother over the telephone “several times a year;” that the PRC targets U.S. citizens of PRC ancestry for intelligence gathering purposes; and that the PRC monitors telephone and other communications of its citizens constitute significant record evidence of security significant foreign contacts and interest. As such, Applicant’s evidence as to her good job performance and her ties to the U.S. are not sufficient to mitigate those concerns. It is not to question Applicant’s patriotism to acknowledge that the record in her case raises the reasonable concern that she could be placed in a position of having to choose between her ties to the U.S. and her obligations to her foreign family members. The evidence which Applicant has provided is not sufficient to mitigate the Government’s security concerns. The Board holds that the Judge’s favorable decision is not sustainable on this record.

ORDER

The Judge’s favorable security clearance decision is REVERSED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed; Wiiliam S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board