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ISCR Case 10-06824.a1 — CASE

ISCR Case 10-06824.a1denied

Case Headnote

ISCR Case No. 10-06824.a1

Apr 9, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. security clearance was denied to an applicant who is a dual citizen of Taiwan and the U.S., based on concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial was affirmed on appeal.

Key issues included the applicant's dual citizenship, which raised concerns about potential foreign influence and preference. Specifically, the applicant's ties to family in Taiwan and her use of a Taiwanese passport were cited as indicators of potential vulnerability to foreign exploitation.

The appeal board upheld the denial, noting that the applicant did not successfully rebut the presumption that the judge had considered all presented evidence. The decision emphasized the national security implications arising from the applicant's dual citizenship and her connections to Taiwan.

Conditions Referenced

Disqualifying

C1raisedDual Citizenship
B2raisedForeign Influence Due to Family Ties

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMar 9, 2011
Answer filed—Applicant represented herself pro se.
Hearing heldJan 20, 2012Decision made on the written record.
Decision dateApr 9, 2012

Cite For

Affirmation of Security Clearance Denial Based on Dual Citizenship Under Guideline C
Consideration of Family Ties in Security Clearance Decisions Under Guideline B
Presumption That Judges Consider All Evidence in 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 a denial of a security clearance based on concerns under Guideline C (Foreign Preference) and Guideline B (Foreign Influence). The applicant argued that the Judge failed to consider all 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 belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline CGuideline 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 was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider all of the record evidence.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision. The adverse decision was affirmed as it was consistent with national security interests.

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
Jean E. Smallin
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 C; Guideline B DIGEST: A Judge is presumed to have considered all of the evidence. Applicant failed to rebut that presumption. Adverse decision affirmed. CASE NO: 10-06824.a1 DATE: 04/09/2011 DATE: April 9, 2012 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-06824

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 March 9, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On January 20, 2012, after considering the record, Administrative Judge Joan Caton Anthony 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 considered all of the record evidence and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge made the following pertinent findings of fact: Applicant was born and raised in Taiwan. She came to the U.S. in the mid-1980sto join her husband, a Taiwanese citizen, and to pursue graduate study. She and her husband had a child while in the United States. She earned a Master’s degree here and, in the mid-1990s, she and her husband became U.S. citizens. She obtained a U.S. passport in 2007, and she applied for, and was issued, a Taiwanese passport the following year. In completing her security clearance application (SCA), Applicant identified herself as a dual citizen of Taiwan and the United States. She has given the Taiwanese passport to her security officer, but she stated to a security clearance interviewer that she wished to retain it to facilitate travel to Taiwan. She also told the investigator that she would be able to retire in six years and may return to live in Taiwan. Although she and her husband had not decided to do that, she did not want to foreclose the option. Her mother is a citizen and resident of Taiwan, and Applicant speaks with her once a month on the telephone. Applicant visits her mother about once a year. She has four siblings who are citizens and residents of Taiwan. She telephones two of them twice a month, one every two months, and she visits her siblings once a year. Taiwan has been involved in criminal espionage and export controls enforcement cases. In a report dating from the year 2000, Taiwan was identified as an active collector of U.S. economic and proprietary information. The People’s Republic of China’s Ministry of State Security maintains intelligence operations in Taiwan. In the Analysis, the Judge noted evidence suggesting ambivalence concerning her dual citizenship and her acquisition and use of a Taiwanese passport after becoming a U.S. citizen. She also discussed what she characterized as Applicant’s long-standing obligations to family members in Taiwan and her frequent communications with several of them. When viewed in light of Taiwan’s status as a collector of U.S. proprietary information and the presence of Chinese intelligence personnel there, she concluded that Applicant could be vulnerable to foreign exploitation, inducement, pressure, or coercion. In her appeal brief, Applicant cites to record evidence concerning her family circumstances, her use of her passport, etc. To the extent that she is arguing that the Judge either failed to consider this evidence or that she mis-weighed it, we note that a Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-10068 at 2 (App. Bd. Dec. 20, 2011). The Judge’s findings and her discussion of those findings do not support Applicant’s contention on appeal. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has she demonstrated that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision. See ISCR Case No. 06-24420 (App. Bd. Feb. 5, 2008). The Judge’s adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board