Loading case…

ISCR 19-02177.a1: Guideline B security clearance appeal, denied (2020) · CASE

ISCR Case 19-02177.a1denied

Case headnote

ISCR Case No. 19-02177.a1

Aug 12, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied under Guideline B (Foreign Influence) for an applicant, a man in his 60s who emigrated from the Soviet Union nearly 30 years prior. The denial stemmed from concerns regarding his contact with high-level Russian government officials.

The appeal board affirmed the adverse decision, citing the significant threat Russia poses to U.S. national security. The board determined that the applicant's contact with these officials constituted an unmitigated security concern.

Furthermore, the applicant's limited contact with family and associates in Russia was deemed insufficient to alleviate the risks associated with foreign influence. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

AG B1raisedForeign Contacts and Interests

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 (1988)

Procedural posture

SOR issuedAug 28, 2019
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateAug 12, 2020Appeal affirmed the adverse decision.

Cite for

Affirmation of Security Clearance Denial Due to Foreign Influence Under Guideline B
Insufficient Mitigation of Security Risks From Foreign Contacts
Importance of National Security in Clearance Determinations

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 security concerns under Guideline B due to the Applicant's contacts with high-level Russian government officials. The Applicant argued that the Judge erred in his findings and that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful errors that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola denied the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact, raised by the applicantError found, but harmless
Applicant contended that the Judge erred in finding one of his associates was employed by the Russian government.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the errors alleged by the Applicant were either rejected or found to be harmless. The security concerns regarding the Applicant's contacts with high-level Russian officials were deemed sufficient to affirm the adverse 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’s contact with a high-level Russian Government official is a sufficient basis for concluding the security concerns arising from that contact are not mitigated. Adverse decision is affirmed. CASE NO: 19-02177.a1 DATE: 08/12/2020

DATE: August 12, 2020 ) In Re: ) ) --------------------- ) ISCR Case No. 19-02177 ) ) 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 August 28, 2019, 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 decision on the written record. On May 21, 2020, after considering the record, Administrative Judge Richard A. Cefola 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 the 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 and Analysis Applicant, who is in his 60s, fled the Soviet Union nearly 30 years ago. His father, sister, and two children from a former marriage are citizens and residents of Russia. He last saw his father about 16 years ago, has little contact with his sister, and has not seen his Russian children in more than 30 years. He is now married to a U.S. citizen, and they have two children who were born in the United States. Applicant has two friends who are citizens and residents of Russia but has had little or no contact with them in the past four to six years. He has two “associate(s)” who are citizens and residents of Russia. Decision at 3. The associates are “employed by the Russian government” in high-level positions. Id. He communicates with the two associates about once every one to two years with the last time being in 2017. The two associates clearly pose a potential for improper foreign influence. Russia uses cyber-operations to collect intelligence and sensitive U.S. business and technology information. Russia appears to be a significant threat to U.S. national security. The Judge’s mitigation analysis consisted of the following: As noted above in my Findings of Fact, Applicant’s high-placed Russian associates pose a significant Foreign Influence threat to our national security. Although he Skypes them only about “1 time every 1to 2 years,” the threat is clearly there. Foreign Influence is found against Applicant. [Decision at 5.]

DISCUSSION

As noted above, the Judge found Applicant’s associates were “employed by the Russian government.” In his appeal brief, Applicant contends that Judge relied on outdated information regarding one of his Russian associates, noting the associate had retired. In this regard, we note that Applicant amended his personal subject interview with a comment that the Russian associate “retired around November of 2017.” Government Exhibit 3, Interrogatories, at 3. In light of this amendment, the Judge erred in finding one of the associates was employed by the Russian Government. While we recognize that the Judge’s analysis of the Guideline B security concerns focused almost exclusively on Applicant’s contacts with the two Russian Government officials, we conclude his error regarding the employment status of one of them was a harmless. See, e.g., ISCR Case No 11-15184 at 3 (App. Bd. Jul. 25, 2013) (An error is harmless if it did not likely affect the outcome of the case). It is reasonable to conclude that the retired high-level government official still has contact with other high-level Russian Government officials. Moreover, Applicant’s other associate remains a high-level Russian Government official. In light of the significant threat that Russia poses to U.S. national security, Applicant’s contact with the remaining high-level Russian Government official is a sufficient basis for concluding the security concerns arising from that contact are not mitigated. See, e.g., ISCR Case No. 19-00831 at 4-6 (App. Bd. Jul. 29, 2020)(applying the “very heavy burden of persuasion” to an applicant with family members in Russia because it is viewed as hostile to the United States for the purpose of DOHA adjudications). In his appeal brief, Applicant makes arguments that are based on matters from outside the record, which we are precluded from considering. Directive ¶ E3.1.29. Applicant argues that the Judge’s decision “is based on the fact that I was born in Russia as [sic] therefore I could be a Russian spy because of that.” Appeal Brief at 2. There is nothing in the Judge’s decision that support that argument. The Judge’s decision, the SOR, and the File of Relevant Material (FORM), are about Applicant’s contacts in Russia. He also argues that his foreign contacts cannot be considered a threat to U.S. national security and highlights circumstances in his life that weigh in his favor. His arguments consist of nothing more than a disagreement with the Judge’s weighing of the evidence, which is not enough to show that the Judge’s analysis was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 18-02239 at 3 (App. Bd. Jul. 20, 2020). He refers to the Judge’s decision as a “Discriminatory conclusion.” Our review of the record, however, reveals no evidence that would persuade a reasonable person that the Judge lacked the requisite impartiality or was prejudiced against him in any manner. See, e. g., ISCR Case No. 18-02722 at 5 (App. Bd. Jan. 30, 2020). Applicant has failed to establish the Judge committed any harmful errors. 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