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ISCR Case 20-01099.a1 — CASE

ISCR Case 20-01099.a1denied

Case Headnote

ISCR Case No. 20-01099.a1

Jul 12, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen in his 50s, originally from Egypt, was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed primarily from his familial ties in Egypt, which included relatives potentially connected to the Egyptian government. These connections raised significant security concerns regarding foreign influence and the potential for coercion.

The applicant failed to adequately demonstrate that his relatives in Egypt would not be subject to such influence or coercion. Despite some favorable findings in his background, the appeal board determined that these concerns were not sufficiently mitigated.

The appeal board upheld the denial, finding no merit in the applicant's claims of due process violations or improper adjudicative standards. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG B2raisedForeign ContactsThe applicant's family ties in Egypt create a potential conflict of interest.
AG B1raisedForeign InfluenceThe applicant's relatives may be subject to pressure or coercion.

Key Rule Quoted

“Whenever any doubt is raised about an individual’s judgment or loyalty, it is deemed best to err on the side of the government’s compelling interest in security by denying or revoking clearance.”
— Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990)

Procedural Posture

SOR issuedSep 23, 2020
Answer filed—
Hearing heldApr 28, 2021
Decision dateJul 12, 2021

Cite For

Denial of Security Clearance Based on Foreign Influence Under Guideline B
Insufficient Mitigation of Familial Ties to Foreign Nationals
Due Process Claims in Security Clearance Appeals

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 under Guideline B due to foreign influence concerns. The applicant argued that the Judge applied an incorrect standard and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.
No specific harmful error alleged — raised by the applicantRejected
Applicant alleged that the Judge failed to apply the proper adjudicative standard.
No specific harmful error alleged — raised by the applicantRejected
Applicant claimed he was denied due process.

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 no merit in the applicant's claims regarding the Judge's application of the adjudicative standard and determined that the Judge's decision was supported by substantial evidence. The Board also noted that any errors identified were harmless and did not affect the outcome of the case.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

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 is apparently contending that a “concern” (a term the Judge used) is raised at a lesser threshold than a “doubt” (a term the Court used) and, therefore, the Judge was applying a lesser adjudicative standard than the Court. This contention lacks merit. An admitted or proven SOR allegation generally establishes one or more security concerns, which create doubt. The terms “security concern,” “concern,” and “doubt” are often used interchangeably in security clearance decisions. Of course, an established “security concern” or “doubt” may or may not be mitigated depending on the evidence presented. Adverse decision affirmed. CASE NO: 20-01099.a1 DATE: 07/12/2021 DATE: July 12, 2021 ) In Re: ) ) --------------------------- ) ISCR Case No. 20-01099

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Asya Hogue, Esq.

The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 23, 2020, 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 April 28, 2021, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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 Applicant was denied due process because the Judge failed to apply the proper adjudicative standard and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The SOR alleged 17 Guideline B allegations. The Judge found in favor of Applicant on ten of those allegations. Those favorable findings were not raised as an issue on appeal and are not discussed below. The Judge’s Findings of Fact and Analysis Applicant, who is in his 50's, was born in Egypt. He earned a bachelor’s degree and master’s degree in Egypt. He immigrated to the United States in the 1990s. He earned a master’s degree and Ph.D. in the United States. He has been a U.S. citizen for about 13 years. He has not taken any action to renounce his Egyptian citizenship. Applicant’s spouse and three children are dual citizens of the United States and Egypt and residents of the United States. His mother, two sisters, and father-in-law are citizens and residents of Egypt. His third sister is a citizen of Egypt who was residing in another Middle Eastern country, but she has returned to Egypt after he completed his security clearance application,. Applicant’s mother and two of his sisters were employed by an entity that may have a connection to the Egyptian Government. At the hearing, Applicant was unsure of their current employment status. His father-in-law also worked for that same entity, was in a semi-retired position as recently as 2019, and may be receiving a pension from the Egyptian Government or that entity. Applicant communicates with his mother every week or every other week. In 2017, he communicated with his sisters on a monthlybasis but testified he communicates with them everytwo or three months. Between 2009 and 2019, Applicant visited Egypt on 13 occasions. His spouse and children usually accompanied him on those trips during which they visited family members. Several terrorist organizations operate in Egypt. In 2014, the most active terrorist group operating there pledged its allegiance to ISIS. The U.S. Department of State has assessed Cairo as a critical-threat location for terrorism directed at U.S. Government interests. The Egyptian Government does not respect the full spectrum of human rights. Applicant’s relationships with family members in Egypt create a potential conflict of interest because terrorists could place pressure on them in an effort to cause him to compromise classified

information. Those relationships also create a heightened risk of foreign inducement, manipulation, pressure, or coercion. Applicant did not meet his burden of showing that his relatives in Egypt are unlikely to come to the attention of those interested in acquiring U.S. classified information. He failed to mitigate the Guideline B security concerns.

DISCUSSION

A Judge is tasked with applying the “clearly consistent with the national interest” standard in determining whether to grant or continue a security clearance for an applicant. See, e.g., Directive ¶¶ 2.3; 3.2; 4.2; and Encl 2, App. A ¶¶ 1(d) and 2(c). In his appeal brief, Applicant contends that the Judge deprived him of due process by failing to apply the proper standard. We find no merit in this contention. At points in his argument, Applicant incorrectly refers to the adjudicative standard as the “standard of clear and consistent.” Appeal Brief at 7 and 9. Based on our review of the Judge’s decision, we find no basis to conclude that he failed to apply the proper adjudication standard. Applicant has failed to establish he was denied the due process afforded him under the Directive. As best we can discern, Applicant also appears to be making a distinction between a “concern” and a “doubt” based on the Judge’s citation to Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990). In the last paragraph of his whole-person analysis, Judge stated, “It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against granting a security clearance. See Dorfmont, 913 F.2d 1401.” Decision at 17, emphasis added. On the cited page in Dorfmont, the Court stated: Because of the extreme sensitivity of security matters, there is a strong presumption against granting a security clearance. Whenever any doubt is raised about an individual’s judgment or loyalty, it is deemed best to err on the side of the government’s compelling interest in security by denying or revoking clearance. [Emphasis added.] Applicant is apparently contending that a “concern” (a term the Judge used) is raised at a lesser threshold than a “doubt” (a term the Court used) and, therefore, the Judge was applying a lesser adjudicative standard than the Court. This contention lacks merit. An admitted or proven SOR allegation generally establishes one or more security concerns,1 which create doubt. The terms “security concern,” “concern,” and “doubt” are often used interchangeably in security clearance decisions. Of course, an established “security concern” or “doubt” may or may not be mitigated depending on the evidence presented. 1 Security concerns are identified in “The Concern” paragraph of each Adjudicative Guideline. The applicable disqualifying conditions identify conduct and circumstances that could raise those security concerns. Directive, Encl. 2, App. A. An SOR is intended to place an Applicant on notice of the Government’s allegations of conduct and circumstances establishing security concerns that show why it is not clearly consistent with the national interest to grant or continue a security clearance. See Directive ¶¶ E3.1.2 and E3.1.3.

Applicant’s brief contends that one of his children is only a U.S. citizen. His testimony supports that contention. Tr. at 29-30. Although the Judge erred in finding all of his children were dual citizens of the United States and Egypt, this was a harmless error because it did not likely affect the outcome of the case. See, e.g., ISCR Case No. 19-01220 at 3 (App. Bd. Jun. 1, 2020). In his appeal brief, Applicant contends the Judge failed to adhere to Executive Order 10865 and the Directive by not considering all of the record evidence and by not properly applying the mitigating conditions and whole-person concept. He argues, for example, that his contact with Egypt is minimal and his ties there are causal. None of his arguments, however, are sufficient to rebut the presumption that the Judge considered all of the evidence in the record or enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). Applicant’s brief also highlights that Government Exhibit 2 (the summary of his background interview) provides his foreign contacts have no affiliation with a foreign government and his association with his foreign contacts cannot be used to blackmail, coerce, or place him under duress. Those highlighted comments, however, summarize Applicant’s answers to the interviewer. They do not constitute the interviewer’s considered opinion as to Applicant’s worthiness for a clearance. See, e.g., ISCR Case No. 15-05344 at 3 (Dec. 6, 2017). In any event, even if an investigator provided such an opinion, it would not bind the DoD in its evaluation of an applicant’s case. Id. Applicant has failed to establish that the Judge committed any harmful error. 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 of the Judge 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