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ISCR Case 15-03801.a1 — CASE

ISCR Case 15-03801.a1denied

Case Headnote

ISCR Case No. 15-03801.a1

Jul 28, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 43-year-old U.S. citizen, originally from China, was denied a security clearance under Guideline B (Foreign Influence) due to concerns about his family's ties to China. The applicant's connections to his country of origin, primarily through his wife and in-laws, were deemed to pose a risk of foreign exploitation.

The judge determined that the applicant's assertions of limited contact with his relatives in China lacked credibility, and he failed to adequately demonstrate that these connections presented little likelihood of foreign exploitation. The appeal board upheld the denial, underscoring the presumption of affection and obligation toward immediate family members.

Ultimately, the applicant's family ties in China were identified as a significant security concern, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

B2raisedForeign Influence

Key Rule Quoted

“As a matter of common sense and human experience, there is a rebuttable presumption that an applicant has ties of affection for, or obligation to, the immediate family members of his or her spouse.”
— ISCR Case No. 03-26176 at 5 (App. Bd. Oct. 14, 2005)

Procedural Posture

SOR issuedNov 24, 2015
Answer filed—
Hearing heldApr 19, 2017
Decision dateJul 28, 2017

Cite For

Foreign Influence Concerns Under Guideline B
Presumption of Affection and Obligation Towards Immediate Family Members
Credibility of Applicant's Claims Regarding Foreign Contacts

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 improperly focused on his wife's contacts in China rather than his own. The Board affirmed the Judge's decision, finding the arguments unpersuasive and the evidence sufficient to support the denial.

Appealed bythe applicant

Applicant representationAttorney

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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the decision was not arbitrary or capricious. The applicant's connections to China, particularly through his wife, raised significant security concerns that were not mitigated.

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: Applicant argues that the Judge improperly focused on his wife’s contacts in China rather than his foreign contacts. Applicant’s argument is unpersuasive. As a matter of common sense and human experience, there is a rebuttable presumption that an applicant has ties of affection for, or obligation to, the immediate family members of his or her spouse. Adverse decision affirmed. CASENO: 15-03801.a1 DATE: 07/28/2017 DATE: July 28, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-03801

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 24, 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 April 19, 2017, 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 issue on appeal: 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, who is 43 years old, has worked for Federal contractors since 2010. He has held a security clearance since 2011. He was born in China. His family moved to the United States while he was in his teens. He attended high school and college in the United States. He became a U.S. citizen in 2002. Applicant’s father was a professor who became a U.S. citizen in 2002 and passed away before the hearing. His mother is a permanent resident alien in the United States, but has not applied for U.S. citizenship because of her language proficiency. His brother also has permanent resident alien status, owns a restaurant, is married to a Chinese woman, and has a family. Applicant first met his wife in China in 2010. In 2012, she came to the United States on a student visa and later completed her PhD. They married in 2013 and have a child. She applied for permanent resident alien status a week before Applicant’s security clearance hearing. Her parents, siblings, and relatives are residents and citizens of China. About once a month, she maintains contact with her relatives in China. Applicant claims his last contact with his parents-in-law was in 2014, but earlier had daily contact with them. In his security clearance application (SCA), Applicant disclosed friends and relatives in China with whom he maintained frequent contact. At the hearing, he claimed he no longer communicates with them. He has no financial or property interests in China. He purchased two homes in the United States that have a total value of about $850,000, and has bank and retirement accounts containing about $260,000. His and his wife’s annual income is about $190,000. China is one of the most aggressive collectors of U.S. economic information. China’s intelligence services and private Chinese entities frequently seek to exploit Chinese citizens or persons with family ties to China who have insider access to corporate secrets. China has conducted large-scale cyber espionage against the United States and is using its computer network exploitation capability to support intelligence collection against U.S. Government diplomatic, economic, and defense entities. China is an authoritarian state with a wide variety of human rights violations. The Judge’s Analysis Applicant’s mother, brother, and wife are Chinese citizens residing in the United States. He has in-laws and friends who are citizens and residents of China. He claims that he no longer maintains contact with his extended family or friends in China because he does not want to raise security concerns. His wife maintains monthly contact with her parents and siblings in China. China’s history of conducting espionage against the United States places a heavy burden of proof on Applicant, citing ISCR Case No. 12-04780 at 3 (App. Bd. Nov. 13, 2013). Decision at 8. Applicant failed to fully meet his burden of showing there is little likelihood his family in China could create a risk of foreign exploitation. His and his wife’s connections to China are significant and outweigh his connections to the United States. The weight of the evidence supports denial of access to classified information, and the security concerns under Guideline B were not mitigated.

DISCUSSION

Applicant contends the Government did not prove the allegation in SOR ¶ 1.cthat he had close and continuing contacts with foreign nationals who are citizens and residents of China. He claims he admitted to having “contact with individuals ‘only during the holiday’” and has not communicated with any foreign “friends or associates since 2014 and at best communicated with those individuals annually.” Appeal Brief at 6-7. We note, however, that Applicant responded “Yes” to the question in his security clearance application that asked whether he had “close and/or continuing contact with a foreign national within the last seven (7) years with whom [he] or [his] spouse . . . are bound by affection, influence, common interest, and/or obligation” and then proceeded to list four individuals with whom he had such a relationship. Government Exhibit 1. After reviewing the record, we conclude that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant argues that the Judge improperly focused on his wife’s contacts in China rather than his foreign contacts. Specifically he states: Although, the contact of the [Applicant’s] wife with her parents in China is minimally relevant, it is inappropriate and unnatural to attempt to superimpose the actions of his wife onto him in order to find him unsuitable to hold a security clearance, which is exactly what [the Judge] does in his decision.1 Applicant’s argument is unpersuasive. As a matter of common sense and human experience, there is a rebuttable presumption that an applicant has ties of affection for, or obligation to, the immediate family members of his or her spouse. See, e.g., ISCR Case No. 03-26176 at 5 (App. Bd. Oct. 14, 2005). The Judge’s conclusion that Applicant’s foreign contacts, including his in-laws in China, raised security concerns under Guideline B is sustainable in light of the record evidence as a whole.

Applicant raises other arguments challenging the Judge’s adverse decision. For example, he contends that the Judge did not consider all of the evidence and argues his foreign contacts were so causal or infrequent to not raise security concerns. His arguments, however, are neither enough to rebut the presumption that the Judge considered all of the record evidence nor 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. 15-01717 at 4 (App. Bd. Jul. 3, 2017). We give due consideration to the Hearing Office cases that Applicant has cited, but they are neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. Id. Additionally, we find no basis for concluding the Judge erred in his whole-person analysis. 1 Appeal Brief at 10. 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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