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Exemption 6 applies
KEYWORD: Guideline B
DIGEST: There is a rebuttable presumption that a Judge is unbiased and impartial and a party
seeking to rebut that presumption has a very heavy burden on appeal.  Adverse decision affirmed.
CASENO: 04-10804.a1
DATE: 08/10/2007
DATE: August 10, 2007
In Re:
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Applicant for Security Clearance
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ISCR Case No. 04-10804
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 August 21, 2006, DOHA issued a statement of reasons advising Applicant of the basis
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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 December 28, 2006, after the hearing, Administrative Judge Christopher Graham denied
Applicant’s request for a security clearance.  Applicant filed a timely appeal pursuant to Directive
¶¶  E3.1.28 and E3.1.30.
Applicant has raised the following issues on appeal: whether the Judge was biased against
him and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary
to law.  Finding no error, we affirm.
The Judge made the following sustainable findings of fact: Applicant is a senior employee
of a federal contractor.  He immigrated to the U.S. from China (PRC), earning masters degrees from
U.S. universities.  He became a U.S. citizen in 2002.  He is legally separated from his wife, a PRC
national whom he married in the PRC in 1986.  He has two teenage daughters who live with him.
Applicant’s mother, two brothers, and sister are citizens and residents of the PRC.  He has another
sister, who is a resident of a European country and through whom he communicates with his PRC
relatives.  None of his relatives work for the PRC government.
Applicant has traveled to the PRC on seven occasions between 1997 and 2002.  These trips
were for vacations.  He also traveled there in 2006, upon the death of his father.  He stopped
vacationing in the PRC after he became a U.S. citizen.  He holds a U.S. passport, his previous PRC
passport having been invalidated.
The Judge found that the PRC has a poor human rights record, that it “engages in espionage
against the United States through an extensive network of businesses, personnel, and specific
programs designed to acquire advanced U.S. military technology.”  Decision at 4.  One method
which the PRC uses to collect information about the U.S. is to attempt to enlist ethnic Chinese who
live in the U.S. to cooperate in technology transfer.
    There is a rebuttable presumption that the Judge was unbiased and impartial, and a party
seeking to rebut that presumption has a heavy burden on appeal.  See ISCR Case No. 04-03834 at
2 (App. Bd. Jul. 2, 2007).  We have examined the Judge’s decision and the record as a whole.  We
find nothing  therein to indicate “that the Judge acted in a manner that would lead a disinterested
person to question” his “fairness or impartiality . . .”  ISCR Case No. 02-06478 at 4 (App. Bd. Oct.
25, 2004).  Furthermore, in light of the Judge’s findings of fact and the record, his decision that
Applicant has not met his burden of persuasion is sustainable.  See Directive ¶ E3.1.15. (“The
applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by the applicant or proven by Department Counsel and has the ultimate
burden of persuasion as to obtaining a favorable clearance decision.”)  See also Department of the
Navy v. Egan, 484 U.S. 518, 528 (1988).  (“The general standard is that a clearance may be granted
only when ‘clearly consistent with the interests of national security.’”)
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Order 
The Judge’s decision denying Applicant a security clearance is AFFIRMED.
Signed: Michael D. Hipple          
Michael D. Hipple
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