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ISCR Case 17-04194.a1 — CASE

ISCR Case 17-04194.a1denied

Case Headnote

ISCR Case No. 17-04194.a1

May 20, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from Pakistan, was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated concerns regarding family ties in Pakistan. The applicant claimed estrangement from a younger sibling residing there, but the Appeal Board upheld the denial, citing the ongoing influence of the applicant's parents and the potential risks associated with these familial connections.

The denial was based on the applicant's failure to provide sufficient evidence to mitigate foreign influence concerns. The relationship with his parents and younger sibling was deemed to present a heightened risk of foreign exploitation and conflict of interest.

Specifically, the absence of information about the younger sibling hindered the application of mitigating conditions, leading to the conclusion that Disqualifying Condition AG B1 remained unaddressed. While Mitigating Conditions AG B2 and AG B3 were considered, they were not sufficient to overcome the identified security risks.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B2rejectedThe Nature of the Relationship with Foreign Contacts Is Such That It Is Unlikely to Result in Foreign Influence.The applicant's estrangement from his younger sibling does not eliminate the risk posed by his parents' ongoing relationship with that sibling.
AG B3rejectedThe Individual Has No Contact with Foreign Relatives.The applicant's parents maintain contact with the sibling in Pakistan, undermining the claim of no contact.

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.

Procedural Posture

SOR issuedJan 3, 2018
Answer filed—
Hearing heldMar 29, 2019
Decision dateMay 20, 2019

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Familial Relationships on Security Clearance Eligibility
Requirements for Mitigating Foreign Influence Risks

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 challenge to the denial of a security clearance based on foreign influence concerns under Guideline B. The applicant argued that the Judge erred in her findings regarding his relationship with a sibling in Pakistan and claimed the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNichole L. Noel — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in her findings of fact regarding the absence of evidence about his younger sibling.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended 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 conclusions were supported by substantial evidence and that the applicant did not demonstrate harmful error in the Judge's findings or decision.

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 challenges the Judge’s conclusion that the absence of evidence about his younger sibling in Pakistan hinders the application of pertinent mitigating conditions. He argues that he did not provide such information at the hearing because he was trying to minimize his relationship with his sibling in order to reduce foreign influence concerns. In his brief, he relates information that he obtained from his parents about his sibling that is not in the record. Such information constitutes new evidence that the Appeal Board is prohibited from considering. Directive ¶ E3.1.29. Based on our review of the record, Applicant has failed to establish that the Judge erred in concluding that the security concerns involving his parents and younger sibling were not mitigated. Adverse decision affirmed. CASENO: 17-04194.a1 DATE: 05/20/2019 DATE: May 20, 2019 ) In Re: ) ) ------------------------- ) ISCR Case No. 17-04194

) ) Applicant for Security Clearance ) )

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 January 3, 2018, 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 March 29, 2019, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Nichole L. Noel 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 erred in her findings of fact 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, his wife, his parents, and his three siblings are naturalized U.S. citizens originally from Pakistan. Applicant and his wife have renounced their Pakistani citizenship and have no intention of returning there. He has almost $400,000 in assets in the U.S., including a home. Applicant’s parents and two of his siblings reside in the United States. For an unspecified period, his parents divided their time between the United States and Pakistan after retiring. It is not clear when his parents began and ended that practice. They maintain a home in Pakistan that they intend to leave to Applicant’s younger sibling. In 2009, the younger sibling returned to Pakistan and currently resides there. Applicant has not had any contact with his younger sibling since he returned to Pakistan and considers his estrangement from this sibling permanent. His parents maintain contact with their child in Pakistan. Applicant’s brother-in-law is a citizen and resident of Pakistan. He is currently in a school and is attempting to immigrate to the United States. Applicant’s mother-in-law is a permanent U.S. resident who returned to Pakistan in mid-2018 to wrap up family affairs, including selling the family home. Terrorist groups operate in Pakistan and may attack public places without warning. They have targeted U.S. citizens. Citing terrorism, the U.S. State Department warns U.S. citizens to reconsider traveling to Pakistan. The Judge’s Analysis The evidence establishes that Applicant’s relationship with his parents, younger sibling, mother-in-law, and brother-in-law creates a heightened risk of foreign exploitation, inducement, etc. His relationship with his parents and younger sibling also presents a potential conflict of interest with his obligation to protect classified information. Applicant mitigated the security concerns involving his in-laws, but failed to mitigate those concerns arising from his parents and younger sibling. Although Applicant is estranged from his younger sibling, their family ties are not entirely broken. The parents remain a influence in the lives of Applicant and his younger sibling. Noting that Applicant did not ask his parents for information about the younger sibling’s current circumstances, the Judge stated, “The absence of information about Applicant’s [younger sibling], and the extent of their parent’s relationship with [that sibling], prevents application of any of the foreign influence mitigating conditions to this relationship.” Decision at 6.

DISCUSSION

As a preliminary matter, Applicant’s brief discusses Guideline language that has not been applicable for more than a decade. We will not speculate why he relies on inapplicable guidelines. Applicant challenges the Judge’s finding that the evidence is not clear when his parents stopped the practice of spending part of each year in Pakistan. He argues that he submitted an affidavit (Applicant’s Exhibit CC) that “clearly states they have stopped this practice.” Appeal Brief at 1. In pertinent part, the affidavit states “for the past few years” his parents have been spending part of the year in Pakistan, but it does not specify when that practice ended. Consequently, the affidavit does not undermine the Judge’s challenged finding, but rather supports it.

In his appeal brief, Applicant highlights a number of facts from his security clearance application, testimony, and background investigation. By doing so, he has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 15-01717 at 4 (App. Bd. Jul. 3, 2017). Applicant challenges the Judge’s conclusion that the absence of evidence about his younger sibling in Pakistan hinders the application of pertinent mitigating conditions. He argues that he did not provide such information at the hearing because he was trying to minimize his relationship with his sibling in order to reduce foreign influence concerns. In his brief, he relates information that he obtained from his parents about his sibling that is not in the record. Such information constitutes new evidence that the Appeal Board is prohibited from considering. Directive ¶ E3.1.29. Based on our review of the record, Applicant has failed to establish that the Judge erred in concluding that the security concerns involving his parents and younger sibling were not mitigated. The balance of Applicant’s arguments amount to a challenge of the Judge’s weighing the evidence. These arguments are not enough to show the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-01717, supra, at 4. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice 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 Judge’s adverse 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. 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.