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ISCR 08-09338: Guideline B security clearance appeal, denied (2009) · CASE

ISCR Case 08-09338denied

Case headnote

ISCR Case No. 08-09338

Nov 2, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen systems engineer was denied a security clearance due to foreign influence concerns under Guideline B. The denial stemmed from the applicant's parents and sister residing in China, which raised Disqualifying Condition AG ¶ 7.

The judge determined that these family ties created a heightened risk of exploitation that the applicant did not sufficiently mitigate. Despite the application of Mitigating Condition AG ¶ 8, the judge found insufficient evidence to counter the risks posed by the applicant's family connections in China.

Consequently, the adverse decision was upheld on appeal, and the security clearance was denied.

Conditions referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe applicant failed to demonstrate that the risks posed by his foreign relatives were sufficiently mitigated.

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 issuedFeb 10, 2009
Answer filed—
Hearing heldSep 8, 2009
Decision dateNov 2, 2009

Cite for

Heightened Risk of Foreign Exploitation Due to Family Ties Under Guideline B
Insufficient Mitigation of Foreign Influence Concerns
Whole-person Analysis in Security Clearance Decisions

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 analysis was erroneous 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 belowMichael H. Leonard 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 whole-person analysis was erroneous and that the adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge reasonably explained the heightened risk of exploitation posed by the Applicant's foreign relatives and articulated a rational connection between the facts and the decision made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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: Judge concluded that Applicant’s foreign relatives created a heightened risk of exploitation which Applicant failed to mitigate. Adverse decision affirmed. CASENO: 08-09338 DATE: 11/02/2009 DATE: November 2, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09338

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 February 10, 2009, 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 September 8, 2009, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s whole-person analysis is erroneous and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. People’s Republic of China. See Directive ¶ E2.7(a): “[C]ontact with a foreign family member . . . who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion[.]” The Judge found that Applicant is a systems engineer for a federal contractor. He earned a Ph.D. from a U.S. university. He has been a U.S. citizen since the early 2000s, as has his wife. His parents are citizens and residents of China. Applicant has regular contact with them by means of the telephone. He also has a sister who is a citizen and resident of China. The Judge noted evidence favorable to Applicant, deciding for him on four of the six SOR allegations. However, he reasonably explained why Applicant’s parents and sister created a “heightened risk” of exploitation which the record as a whole was not sufficient to mitigate. Decision at 9. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made,’” both as to the mitigating conditions and the whole- person factors. 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 the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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