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ISCR 15-00528.a1: Guideline B security clearance appeal, denied (2017) · CASE

ISCR Case 15-00528.a1denied

Case headnote

ISCR Case No. 15-00528.a1

Mar 13, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen applicant was denied a security clearance under Guideline B (Foreign Influence) due to concerns stemming from her family ties in China. Despite the applicant's strong connections to the U.S. and absence of financial interests in China, the judge determined that her close relationship with her parents, who reside in China, presented a risk of coercion.

The decision highlighted the potential threats from foreign governments, specifically China, in the context of the applicant's family connections. The judge concluded that these family ties in a country with interests adverse to the U.S. created a rational connection to the risk of failing to protect classified information.

Disqualifying Condition AG B1 was raised, while Mitigating Condition AG B8(b) was applied. However, the denial was ultimately based on the applicant's close relationship with her parents in China, which increased her vulnerability to foreign influence, further exacerbated by frequent communication and travel to China.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B8(b)appliedConflict of InterestThe judge acknowledged the applicant's strong ties within the U.S. but concluded they did not fully mitigate the risks posed by her parents in China.

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 issuedAug 8, 2015
Answer filed—
Hearing heldNov 30, 2016
Decision dateMar 13, 2017

Cite for

Foreign Influence Concerns Under Guideline B
Risk of Coercion Due to Family Ties in Foreign Countries
Importance of National Security in 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 an applicant who was denied a security clearance due to concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding substantial evidence supporting the findings and a rational connection between the applicant's family ties in China and the risk of foreign influence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera 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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings were supported by substantial evidence and that the Judge did not err in his analysis of the risks posed by the applicant's family ties in China. The Board concluded that the Judge's decision was not arbitrary, capricious, or contrary to law.

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 Ra’anan (Chair)
James E. Moody
James F. Duffy

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’s material findings are supported by substantial evidence. Applicant failed to rebut the presumption that the Judge considered all of the evidence. In Foreign Influence cases, the nature of the government involved, its intelligence-gathering history, and its human rights record provide context for the Judge’s ultimate decision. There is a rational connection between an applicant’s family ties in a country whose interests are adverse to those of the U.S. and the risk that the applicant might fail to protect classified information. Adverse decision affirmed. CASE NO: 15-00528.a1 DATE: 03/13/2017 DATE: March 13, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00528

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 8, 2015, DoD 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 November 30, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera 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 findings contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant works for a Defense contractor. She received a bachelor’s degree in China and is pursuing a master’s in the U.S. Her husband came to the U.S. in the early 1990s. About a decade later he visited China, where he met Applicant. In the mid-2000s, Applicant came to the U.S. as well. She and her husband have two children, both of whom were born in this country. Applicant has retirement accounts in the U.S. and has no financial or property interests in China. Applicant’s parents are citizens and residents of China. Retired, they own two condominiums there. Applicant speaks with them two to four times a month. Applicant’s parents are generally aware of the kind of work she does. Applicant has no siblings and has maintained no contact with friends from college. Applicant traveled to China in 2009, 2010, 2012, 2014, and 2016. Her parents visited her three times from 2009 to 2013. When Applicant acquired U.S. citizenship, the Chinese government revoked her Chinese passport because China does not recognize dual citizenship. Applicant enjoys an excellent reputation for her duty performance. A witness, a relative who holds security clearance, states that Applicant has stronger ties to the U.S. than to China. Applicant’s performance appraisal evidences important contributions to her employer’s mission, and, in 2015, she received a job promotion. China is one of the most aggressive collectors of U.S. economic and technological information. China’s attempts to acquire U.S. information are expected to constitute a growing threat to this country’s economic security. Among other things, China uses its computer network capability to acquire intelligence that could benefit its defense capability. It is able to acquire useful information under the aegis of civilian research and development. The Chinese government has conducted large scale cyber espionage against the U.S., compromising U.S. computer networks of the DoD, Defense contractors, and private entities. China’s most effective means of acquiring intelligence and technology are cyber espionage, collection by Chinese students, scholars, and scientists (whether witting or unwitting), joint ventures, and foreign cooperation. The U.S. State Department has reported human rights abuses in China. Among other things, visitors to China may be subject to surveillance. Hotel rooms, cars, telephones, internet usage, etc., may be monitored.

The Judge’s Analysis The Judge concluded that Applicant’s relationship with her Chinese parents is sufficiently close that she could be subject to foreign influence or subjected to a possible conflict of interest. In evaluating Applicant’s case for mitigation, the Judge cited to her regular and frequent contact with her parents, both electronically and through travel. Though acknowledging that there is no evidence that the Chinese government has actually tried to exert pressure on Applicant or her parents, he stated that her family could become targets of intelligence agents. He noted evidence of Applicant’s strong ties within the U.S. However, he concluded that Applicant’s close relationship with her parents and their awareness of the general nature of Applicant’s work, render her vulnerable to coercion. In the whole-person analysis, the Judge stated that the weight of the record evidence militated against granting Applicant access to classified information, citing to her closeness to her parents and her frequent visits and regular communications with them. Though not questioning Applicant’s patriotism, he concluded that she could be placed in a position of having to choose between her ties in the U.S. and those in China.

DISCUSSION

Applicant argues that the Judge overstated the frequency of her travel to China. However, his findings about Applicant’s travels to that country and her parents’ visits in the U.S. are consistent with her testimony at the hearing, statements in her security clearance application, and her Answer to the SOR. Tr. at 51-52, 57-58; SCA at 29-43; SOR Answer, dated October 6, 2015. We conclude that the challenged finding is based upon substantial record evidence. See, e.g., ISCR Case No. 15- 01285 at 3 (App. Bd. Dec. 22, 2016). Applicant argues that the Judge failed to consider significant evidence of her loyalties and relationships in the U.S. She states that he did not weigh her family connections in this country, denying that she could be subjected to a conflict of interest. She argues that her communications with her parents are casual and that her visits to China are solely of a personal, rather than official, nature, lessening the likelihood that she could be subjected to foreign coercion. In Foreign Influence cases, the nature of the foreign government involved and the intelligence gathering history of that government are among the important considerations that provide context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is another important consideration. See, e.g., ISCR Case No. 05-03250 at 4-5 (App. Bd. Apr. 6, 2007); ISCR Case No. 04-11463 at 4 (App. Bd. Aug. 4, 2006). There is a rational connection between an applicant’s family ties in a country whose interests are adverse to the United States and the risk that the applicant might fail to protect and safeguard classified information. See, e.g., ISCR Case No. 10-07436 at 3, n. 4 (App. Bd. Oct. 19, 2011). We note record evidence and the Judge’s findings of the following: Applicant’s parents reside in China; Applicant communicates with them frequently; Applicant has visited them or they her on a regular basis; Applicant’s parents are aware of the location and general nature of her work; China practices espionage against the U.S.; and China has used its cyber-espionage capability to compromise DoD and contractor computer systems. This evidence supports the Judge’s conclusion that Applicant’s parents could become a means through which Applicant could come to the attention of Chinese intelligence personnel and be subjected to coercion or pressure. The Judge discussed Applicant’s ties within the U.S. and gave partial applicability to Mitigating Condition 8(b).1 The Judge’s pertinent analysis explaining why the ties in the U.S. do not fully mitigate the risks posed by the presence of Applicant’s parents in China is sustainable. Applicant’s arguments, viewed as a whole, are not sufficient to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 15-02040 at 2 (App. Bd. Feb. 14, 2017). Neither are they sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08842 at 3 (App. Bd. Feb. 14, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 Directive, Enclosure 2 ¶ 8(b): “there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest.”