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ISCR Case 15-06611.a1 — CASE

ISCR Case 15-06611.a1denied

Case Headnote

ISCR Case No. 15-06611.a1

deniedMay 8, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, a Chinese national residing in the U.S., was denied a trustworthiness designation under Guideline B (Foreign Influence). The primary concern stemmed from the applicant's strong family ties in China, which raised potential risks of coercion from an authoritarian regime.

Specifically, Disqualifying Condition AG ¶ 6(a) was raised due to these connections. While Mitigating Condition AG ¶ 8(a) was considered, the appeal board ultimately found insufficient evidence to alleviate the trustworthiness concerns.

The denial was upheld because the applicant failed to adequately mitigate the risks associated with potential foreign influence and coercion through her family connections in China.

Why the Applicant Was Denied

The applicant's strong ties to family in China raised potential risks of coercion.
Insufficient evidence was presented to mitigate the trustworthiness concerns related to foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 6(a)raisedForeign Influence

Mitigating

AG ¶ 8(a)rejectedMitigating ConditionsThe applicant did not present enough evidence to mitigate the concerns arising from her ties within China.

Key Rule Quoted

“Such a determination 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 issuedNov 23, 2015
Answer filed—Applicant represented herself pro se.
Hearing heldFeb 16, 2017
Decision dateMay 8, 2017Appeal board affirmed the decision.

Cite For

Foreign Influence Concerns Under Guideline B
Insufficient Mitigation of Risks From Family Ties in an Authoritarian Regime
Standards for Trustworthiness Determinations Consistent with 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.

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 challenges some of the Judge’s findings. We conclude that there is no actual inconsistency in the challenged finding. Adverse decision affirmed. CASENO: 15-06611.a1 DATE: 05/08/2017 DATE: May 8, 2017 In Re: ----------------

Applicant for Trustworthiness Designation ) ) ) ) ) ) ) ) ADP Case No. 15-06611

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 trustworthiness designation. On November 23, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness 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 February 16, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason denied Applicant’s request for a trustworthiness designation. 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 was born and educated in China. She and her husband came to the U.S. in the mid-1990s, and she subsequently received a degree from a U.S. university. Applicant’s parents, parents-in-law, and siblings are citizens and residents of China. Applicant has weekly contact with her parents. She has weekly contact with her parents-in-law as well, although she rarely talks with them herself. In 2012 and 2014, Applicant visited her parents in China. China is an authoritarian regime ruled by the Communist Party. It collects military, economic, and industrial information from the U.S. Chinese intelligence services operate in the U.S. The Judge’s Analysis The Judge stated that Applicant has strong ties to her Chinese family members. These ties are based on Applicant’s sense of duty and affection for her relatives, which are positive character traits. However, these traits also suggest that through her family members Applicant could be subject to coercion. He concluded that Applicant did not present enough evidence to mitigate the concerns arising from her ties within China. In the whole-person analysis, the Judge cited to favorable evidence but concluded that it was not sufficient to mitigate the trustworthiness concerns inherent in Applicant’s circumstances. He noted that China seeks protected information from the U.S. and concluded that the record raises a real possibility that Applicant could become a target through her Chinese relatives.

DISCUSSION

Applicant’s brief includes matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. Applicant challenges some of the Judge’s findings. Among other things, she argues that there is a discrepancy in his finding about her contact with her Chinese in-laws. She states that it is not consistent to find that she has weekly contact with them yet rarely speaks with them herself. We note that the finding about Applicant’s weekly contact with her in-laws is based upon her answers in her SF-86. Government Exhibit 1 at 32-33. In one of her own exhibits, Applicant states that her husband speaks with his parents weekly but that she herself does so only rarely. Applicant Exhibit A. We conclude that there is no actual inconsistency in the challenged finding. Applicant has identified some other errors, such as the year her child was born, which did not likely affect the outcome of the case. The Judge’s material findings are based upon substantial evidence or constitute reasonable inferences from the evidence. Applicant has not identified any harmful error in the Judge’s findings. See, e.g., ADP Case No. 15-03377 at 3 (App. Bd. Mar. 9, 2017). Applicant argues that the evidence shows that she is loyal to the U.S. However, an adverse result under the Directive does not constitute a judgment that an applicant is disloyal. Directive, Enclosure 1, SECTION 7. Rather, it is a recognition that the applicant’s conduct or circumstances are such that he or she could be subjected to pressure to disclose protected information. Applicant’s contentions on appeal are not enough to rebut the presumption that the Judge considered all of the evidence or that he weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ADP Case No. 15-06452 at 3 (App. Bd. Feb. 14, 2017); ADP Case No. 12-09387 at 2 (App. Bd. Apr. 26, 2016). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. 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 protected information. See, e.g., ADP Case No. 14-01655 at 3-4 (App. Bd. Dec. 9, 2015). The decision is sustainable on this record. The standard applicable to trustworthiness cases is that set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) regarding security clearances: such a determination “may be granted only when ‘clearly consistent with the interests of the national security.’” See, e.g., ADP Case No. 12-04343 at 3 (App. Bd. May 21, 2013). See also Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied.

ORDER

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board