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ISCR 08-03771.a1: Guideline B security clearance appeal, denied (2009) · CASE

ISCR Case 08-03771.a1denied

Case headnote

ISCR Case No. 08-03771.a1

Feb 18, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated security concerns related to her family connections in China. The appeal board upheld this denial.

The primary disqualifying condition raised was AG B1. The applicant's parents were temporarily residing in China for medical reasons, which was a significant factor in the security concerns. Additionally, the applicant maintained contact with her brother, who also resided in China, which undermined her claims of estrangement from her family there.

Ultimately, the applicant's connections to her family in China, specifically her parents' temporary residence and her ongoing contact with her brother, were deemed to pose an unacceptable security risk, leading to the denial of her security clearance.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

Key rule quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural posture

SOR issuedJun 26, 2008
Answer filed—
Hearing heldDec 8, 2008
Decision dateFeb 18, 2009

Cite for

Security Concerns Related to Foreign Influence Under Guideline B
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises Security Concerns
The Weighing of Evidence by the Judge Is Not Subject to De Novo Review by the Appeal Board.

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 concerns under Guideline B. The applicant argued that the Judge's decision was arbitrary and unsupported by the record. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene Lokey Anderson denied the clearance

Decided ona hearing

Guidelines belowGuideline B

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 is 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 that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the decision was arbitrary, capricious, or contrary to law. The Judge reasonably weighed the evidence and articulated a satisfactory explanation for her decision.

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

Michael Y. Ra’anan (Chair)
Michael D. Hipple
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

KEYWORD: Guideline B DIGEST: Record evidence established that Applicant’s parents were residing temporarily in the People’s Republic of China for medical reasons despite permanent resident status in U.S. Record evidence also established that Applicant visits her brother in China when she visits there and sends him birthday cards. The record evidence supports the Judge’s conclusion that the case raises security concerns that have not been mitigated. Adverse decision affirmed. CASENO: 08-03771.a1 DATE: 02/18/2009 DATE: February 18, 2009 In Re: ------------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03771

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 June 26, 2008, 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 8, 2008, after the hearing, Administrative Judge Darlene Lokey Anderson 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. Applicant argues that the Judge’s adverse security clearance decision is unsupported by the record as a whole. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Applicant points out that the Judge found that her parents are citizens and residents of the People’s Republic of China (China), when in fact there is record evidence that they have permanent resident status in the U.S. However, as of the close of the record they were residing temporarily in China for medical purposes. Therefore, any error in this finding is harmless. Applicant also describes her relationship with her brother as “estranged.” However, as the Judge notes in her decision, Applicant sees her brother when she visits China, sends him birthday cards, and brings gifts of toys and clothes to her brother’s son on her visits. Decision at 7. Therefore, Applicant has not undermined the Judge’s conclusions as to her brother.

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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. 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. 07-05632 at 2 (App. Bd. May 13, 2008). A review of the record 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 conditions and factors. She reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). The Judge examined the relevant data and articulated a satisfactory explanation for her 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 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). Accordingly, the Judge’s adverse decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board