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ISCR 12-03779.a1: Guideline B security clearance appeal, denied (2013) · CASE

ISCR Case 12-03779.a1denied

Case headnote

ISCR Case No. 12-03779.a1

Apr 9, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline B (Foreign Influence), Guideline C (Foreign Preference), and Guideline E (Personal Conduct). The denial stemmed primarily from the applicant's ties to relatives residing in Taiwan and the People's Republic of China, which raised significant security concerns.

While Disqualifying Condition AG ¶ 7 was raised, Mitigating Conditions AG ¶ 20 and AG ¶ 21 were applied. However, these were insufficient to overcome the security risks identified.

The appeal board upheld the denial, concluding that the applicant failed to sufficiently rebut the presumption that the judge had considered all evidence in the record. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 20notedMitigating Conditions
AG ¶ 21notedMitigating Conditions

Procedural posture

Decision DateApr 9, 2013

Cite for

Foreign Influence Concerns Under Guideline B
Presumption of Evidence Consideration by the Judge
Affirmation of Adverse Decisions Based on National Security Interests

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 an applicant seeking a security clearance after being denied due to concerns under Guidelines B, C, and E. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline CGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's Decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision, affirming that the adverse decision was sustainable on the record.

Standard of review applied

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

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; Guideline C; Guideline E DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the evidence in the record. Adverse decision affirmed. CASE NO: 12-03779.a1 DATE: 04/09/2013 DATE: April 9, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-03779

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 31, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), Guideline C (Foreign Preference), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 28, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s Decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines C and E are not at issue in this appeal. Consistent with the following, we affirm the Decision of the Judge. The Judge’s Findings of Fact Applicant works for a Defense contractor. He has been so employed since mid-2011. He enjoys an excellent reputation for the quality of his work. Born, raised, and educated in Taiwan, Applicant immigrated to the U.S. in the late 1980s, becoming a citizen of this country in the early 2000s. He holds a Ph.D. from a U.S. university. He has numerous relatives in Taiwan. One of his siblings works for a Taiwanese private employer in the People’s Republic of China (PRC), having resided there since the late 1990s. Applicant occasionally communicates with this sibling by e-mail. He assumes this sibling has contact with the PRC government, although he does not know the nature of this contact. Another sibling lives in Taiwan and works in the banking industry. Applicant has frequent contact with this sibling by telephone and through e-mail. The PRC has active intelligence operations directed at U.S. military and industrial secrets. Taiwan is believed to be an active collector of U.S. economic intelligence and proprietary information. The Judge’s Analysis The Judge concluded that Applicant’s foreign relatives raised Guideline B security concerns. Of those relatives, she concluded that Applicant had not mitigated the concerns arising from the sibling who resides in the PRC and from another living in Taiwan. She noted evidence in the record that the PRC targets American-Chinese citizens in efforts to obtain intelligence, concluding that through such relatives Applicant is vulnerable to pressure. She stated that Applicant could be placed in a position of having to choose between the interests of the U.S. and the interests of foreign governments.

DISCUSSION

Applicant contends that the Judge erred in her application of the mitigating conditions regarding his two siblings. He cites to various pieces of record evidence which, he argues, support his case for a clearance. To the extent that he is arguing that the Judge did not consider all of the evidence in the record, Applicant’s argument has not rebutted the presumption that the Judge did so. See, e.g., ISCR No. 11-01618 at 3 (App. Bd. Jan. 24, 2013). The record supports a conclusion 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.’” 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 adverse decision is sustainable on this record. See, e.g., ISCR Case No. 06- 17838 at 4 (App. Bd. Jan. 28, 2008). “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 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