KEYWORD: Guideline B; Guideline E
DIGEST: Quasi-judicial adjudications must be made within the bounds of applicable law and
policy.  Security clearance decisions must be based on current DoD policy and standards.  The
Judge’s limited analysis of the PRC is inadequate and did not present the full context of the
strategic threat posed to the US by the PRC.  Favorable decision reversed.
CASENO: 06-17838.a1
DATE: 01/28/2008
DATE: January 28, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 06-17838
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Candace Le’i, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On November 16, 2006, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On July 11, 2007, after the hearing,
The Judge’s favorable decision under Guideline E is not at issue in this appeal. 1
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Administrative Judge Kathryn Moen Braeman granted Applicant’s request for a security clearance.
Department Counsel filed a timely appeal pursuant to Directive ¶¶  E3.1.28 and E3.1.30.  1
Department Counsel raised the following issues on appeal: whether the Judge’s application
of Foreign Influence Mitigating Conditions (FIMC) is unsupported by record evidence and arbitrary,
capricious, and contrary to law; and whether the Judge’s whole person analysis is unsupported by
record evidence and arbitrary, capricious, and contrary to law.  Finding error, we reverse.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following pertinent findings of fact: Applicant was born in the People’s
Republic of China (PRC), becoming a U.S. citizen in December 2000.  He works for a defense
contractor.  Applicant’s mother was born in the PRC but is a U.S. citizen who has worked for a
defense agency for many years.  She is divorced from Applicant’s father and is married to a U.S.
citizen and former Army officer.
Applicant’s father is a citizen and resident of the PRC.  Applicant speaks with him twice a
year, on his birthday and on holidays.  Applicant’s grandfather is also a citizen and resident of the
PRC, with whom Applicant has visited in 2001, 2002, and 2003.  Applicant speaks with his
grandfather twice a year, on his birthday and on holidays..  
Applicant’s wife is a citizen of the PRC, but a legal resident of the U.S. by virtue of marriage.
Applicant’s parents-in-law are citizens and residents of the PRC.  Applicant’s wife speaks with them
by telephone two or three times a week, although Applicant does not speak with them.  Applicant’s
father-in-law is a partner in a large Chinese law firm.  In 2004 and in 2005, Applicant’s parents-in-
law gave Applicant’s wife gifts of $10,000 each year.  In 2006 they gave her $6,000 and, at the time
of the close of the record, Applicant and his wife were expecting a gift of $50,000 for a down
payment on a house.  
The Judge found that the PRC does not consider Chinese-Americans to be more vulnerable
to approach than any other group.  The PRC is willing to exploit a targeted individual’s feelings of
obligation toward the PRC or toward family or friends who live there.  
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the record.”  Directive
¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S.
607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give deference to the
Directive ¶ E2.8(a).  (“[T]he nature of the relationships with foreign persons, the country in which these persons2
are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will
be placed in a position of having to choose between the interests of a foreign individual, group, organization, or
government and the interests of the U.S.”) 
Directive ¶ E2.8(f).  (“[T]he value or routine nature of the foreign business, financial, or property interests is3
such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure
the individual.”)
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Judge’s credibility determinations.  Directive ¶ E3.1.32.1.  Department Counsel has not expressly
challenged the Judge’s findings of fact, though she cites other record evidence in support of her
arguments on appeal.   
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choices 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
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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the government presentsth
evidence raising security concerns, the burden shifts to the applicant to establish any appropriate
mitigating conditions.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating
conditions and whole person factors does not turn simply on a finding that one or more of them apply
to the particular facts of a case.  Rather, their application requires the exercise of sound discretion
in light of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec.
20, 2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
The Judge explicitly applied two Guideline B mitigating conditions, FIMC 8(a)  and (f).2 3
Department Counsel argues that the Judge’s analysis under 8(a) is unsustainable in light of
significant contrary record evidence.  For example, although the Judge discussed the PRC’s approach
See Government Exhibit (GE) 1, Department of States Background Note, April 2006, at 7; GE 2, Department4
of State Report on Human Rights Practices, March 8, 2006, at 1.
See GE 1 at 14-15.  5
See, e. g., GE III, U.S. National Security and Military/Commercial Concerns with the People’s Republic of6
China, January 1999, at 21-25.  
See GE IV, Intelligence Threat Handbook, June 2004, at 17.  7
4
to intelligence collection, Department Counsel cited the PRC’s suppression of human rights; its
practice of arbitrary arrest and detention;  its long-standing rivalry with the U.S. over matters such4
as the status of Taiwan;  that the PRC targets the U.S. with active intelligence gathering activities,5
both legal and illegal;  and that it considers Americans of Chinese ancestry to be “prime intelligence6
targets.”   Insofar as one of the criteria addressed in the mitigating condition and the concern7
paragraph is the nature of the foreign country, the evidence cited by Department Counsel is critical
in evaluating whether Applicant has met his burden of persuasion.  
The validity of Appeal Board precedent issued under an earlier edition of the Adjudicative
Guidelines is an issue in this case.  The Board has previously held “. . . a Judge cannot rely on
language from an earlier version of the Directive to justify the Judge’s decision and that an
applicant’s security eligibility must be adjudicated under current DoD policies and standards, not
past ones. Similarly, the precedential value of Board decisions is affected to the extent those
decisions involve the interpretation of a provision of the Directive that is later revised or changed.
Statements made by the Board in earlier decisions that are predicated on then-existing language in
the Directive cannot be simply assumed —by a Judge or a party— to be applicable in later cases after
the pertinent provision(s) of the Directive have been revised or changed.” See ISCR Case No. 02-
17369 at 3-4 (App. Bd. May 23, 2006); and ISCR Case No. 02-24254 at 7-8 (App. Bd. Jun 29, 2004)
(footnotes omitted).  Of course, some precedent remains completely valid in the face of changes to
the guidelines, because it is not dependent on the language of any specific guideline.  Other
precedent remains valid where the applicable language of the guideline is unchanged or the changes
are not of sufficient magnitude to vitiate or overrule  the substance of the precedent.  However,
Board decisions cannot be relied on or followed to the extent they involve precedent predicated on
law or DoD policy that changed after the issuance of those decisions. Quasi-judicial adjudications
must be made within the bounds of applicable law and agency policy, not without regard to them.
See, e.g., Croplife America v. Environmental Protection Agency, 329 F.3d 876, 882 (D.C. Cir. 2003)
(administrative law judges cannot ignore agency policy in making rulings); Nash v. Bowen, 869 F.2d
675, 680 (2d Cir. 1989)(administrative law judge is subordinate to head of agency or department in
matters of policy); Mullen v. Bowen, 800 F.2d 535, 540 n. 5 (6th Cir. 1986) (decisional independence
does not relieve administrative law judge of the obligation to apply agency policy).  See  ISCR Case
No. 02-00305 at 3 (App. Bd. Feb. 12, 2003)(security clearance decisions must be based on current
DoD policy and standards). Accordingly, no Board decision should be construed or interpreted
without regard to the law and DoD policy applicable at the time the Board decision was issued.
Here, Guideline B is at issue.  Guideline B was subject to extensive revisions in the Revised
Adjudicative Guidelines.  However, those prior Board decisions which are consistent with the
revised guidelines are still applicable.  For example, the new guidelines specify in paragraphs 6 and
See ISCR Case No. 00-0484 at 4 (App. Bd. Fe. 1, 2002).  See also Note 8 above.8
GE 2 at 1, 10.  9
See the testimony of Applicant’s spouse: “[M]y dad is considered rich in China . . . he’s doing pretty good10
. . . he’s a partner in a big law firm, a private law firm.”  Tr. at 50, 52.  
Directive ¶ E2.8(b).  (“[T]here is no conflict of interest, either because the individual’s sense of loyalty or11
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.”)
Decision at 7.  12
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8(a) that the country matters.  It follows that prior Board precedent which states that when the foreign
country is hostile to the United States, an applicant bears a “very heavy burden” to show that neither
he nor his family members in that country are subject to influence by that country is still valid under
the new guidelines.  See, e.g., ISCR Case No. 01-26893 at 8 (App. Bd. Oct. 16, 2002).  In light of
the above, Department Counsel’s argument that the Judge’s limited analysis of the PRC is
inadequate and that she has not presented the full context of the strategic threat posed to the U.S. by
the PRC is persuasive.  
Department Counsel also argues that the Judge erred in concluding that the nature of the
relationship between Applicant and his foreign relatives does not pose an unreasonable security
concern.  Department Counsel contends that such family relationships as are found in this case are
presumptively close and that there is nothing in the record to rebut that proposition.   Indeed,8
Applicant visited his father and grandfather on several occasions between 2001 and 2003 and
maintains telephone contact with them at significant times of the year.  Furthermore, Applicant’s
Chinese wife speaks with her parents two or three times a week.  In light of record evidence that the
PRC monitors mail, telephone, and electronic communications,  the contacts between Applicant’s9
wife and her parents raise security concerns which the record as a whole does not resolve.
Additionally, the Board notes that the apparent prominence of Applicant’s father-in-law  heightens10
the Government’s security concern, especially in light of Applicant’s receipt of gifts expected to
exceed $70,000.  While the Judge notes that Applicant is well-off himself, and, therefore, not
dependent on his father-in-law for support, she does not address the adverse security consequences
gifts of that magnitude from overseas relatives.  Furthermore, the Judge did not explicitly discuss
FIMC 8(b).   However, she appears impliedly to have raised it in concluding that Applicant’s “deep11
ties to the U.S.” militate against his acting on behalf of the PRC.  The Judge does not explain why
Applicant’s ties to his foreign relatives, to include the receipt of a substantial amount of money from
his father-in-law, are comparatively minimal, as this mitigating condition requires. 
As mentioned above, the Judge also gave favorable application to FIMC 8(f), which
addresses the mitigation of security concerns arising out of foreign interests.  Applicant owns no
property in the PRC, though he has, as stated above, received gifts from his father-in-law.  The Judge
concluded that these gifts “could not be used effectively to influence, manipulate or pressure”
Applicant.   Given the totality of the record here, the Judge erred in giving FIMC 8(f) substantial12
weight.  Given the record evidence, the Board concludes that the Judge’s favorable decision is not
sustainable.  
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Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Michael Y. Ra’anan     
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jean E. Smallin              
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board