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ISCR 20-01445: Guideline B security clearance appeal, denied (2024) · CASE

ISCR Case 20-01445denied

Case headnote

ISCR Case No. 20-01445

Mar 28, 2024· Hon. James B. Norman· appeal

Summary

A mid-30s engineer with a prior security clearance history was denied a new clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from the applicant's falsification of information during security clearance interviews and a failure to report foreign travel and relationships with foreign nationals.

The applicant appealed the decision, alleging bias and errors in the judge's findings. However, the appeal board upheld the denial, concluding that the judge's credibility determinations were supported by substantial evidence.

Specifically, the disqualifying conditions raised included AG ¶ 16(a) and AG ¶ 16(c), while AG ¶ 17(c) was considered as a mitigating condition. Ultimately, the board found sufficient evidence of falsification and unreported foreign connections to justify the denial.

Conditions referenced

Disqualifying

AG ¶ 16(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire or Interview.
AG ¶ 16(c)raisedFailure to Comply with Rules and Regulations of the Security Clearance Process.

Mitigating

AG ¶ 17(c)rejectedThe Individual Has Taken Positive Steps to Reduce or Eliminate Vulnerability to Coercion, Exploitation, or Pressure.The applicant's claims of ceasing relationships with foreign nationals were not sufficient to mitigate concerns.

Key rule quoted

“"Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security."”
AG ¶ 2(b)

Procedural posture

SOR issuedNov 11, 2020
Answer filed—
Hearing heldFeb 27, 2024
Decision dateMar 28, 2024

Cite for

Substantial Evidence Required for Credibility Determinations
Rebuttable Presumption of Judicial Impartiality
Failure to Mitigate Personal Conduct Concerns Under Guideline E

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 security clearance based on concerns under Guidelines B and E. The applicant argued bias, unsupported findings, and misapplication of mitigating conditions. The Board affirmed the decision, finding no harmful error in the Judge's determinations.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNichole L. Noel denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge bias or partiality, raised by the applicantRejected
Applicant asserted that the Judge was biased against him.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant claimed that the Judge made findings of fact that are either incomplete or unsupported by the evidence.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge failed to properly apply the mitigating conditions.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Moira Modzelewski (Chair)
Allison Marie
James B. Norman

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

APPEARANCES

_______________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 20-01445

)

) Applicant for Security Clearance ) _______________________________________)

DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: March 28, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 11, 2020, DoD issued a Statement of Reasons (SOR) advising Applicant of the basis of that decision – security concerns raised under Guidelines B (Foreign Influence) and E (Personal Conduct) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On February 27, 2024, Defense Office of Hearings and Appeals Judge Nichole L. Noel denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline B, the SOR, as amended, alleged that Applicant’s spouse, mother-in-law, and friend are citizens and residents of Colombia. The Judge found the Guideline B allegations in Applicant’s favor. Therefore, although Applicant addresses this allegation on appeal, it is not a matter under review. Under Guideline E, the amended SOR alleged and the Judge found adversely that Applicant falsified information during February and March 2019 security clearance interviews, failed to report foreign travel, used online dating websites to initiate romantic liaisons

or relationships with women from Columbia, and continued to maintain contact with one or more of these women. On appeal, Applicant asserts that the Judge was biased against him, made findings of fact that are either incomplete or unsupported by the evidence, and failed to properly apply the mitigating conditions. Consistent with the following, we affirm. Judge’s Findings of Fact and Analysis Applicant is in his mid-30sand worked as an engineer for a federal contracting company from April 2017 to February 2023, at which time he was placed on administrative leave pending the outcome of his security clearance adjudication. He has held a security clearance since September 2015. In March 2018, Applicant’s employer filed an incident report regarding his travel to Colombia and his relationship with a Colombian woman. In conjunction with the incident report, a Defense Security Service counterintelligence investigator interviewed Applicant at which time Applicant acknowledged that he traveled to Colombia in August 2017 and February 2018, and that he was engaged to marry a Colombian national. Applicant also was interviewed on February 21, 2019, and March 28, 2019. During the February 2019 interview, Applicant told the investigator that, in August 2017, in response to an inquiry from his supervisor regarding his failure to return from an assignment, he had informed the supervisor that he was travelling to his home country of Ghana to attend a family event but changed his mind and traveled to Colombia instead. He did not report this trip in advance, nor his intended trip to Ghana, and stated that he was unaware of a requirement to do so. He also told the investigator that, while on that trip, he met his future wife, a Colombian woman, while walking through a shopping mall. He denied meeting the woman before the trip. During the March 2019 interview, Applicant eventually acknowledged that he also did not report his February 2018 travel to Colombia, asserting that he did not know he needed to do so. Applicant again denied knowing his wife before his first trip to Colombia in August 2017 and reiterated that he met her for the first time during the trip. After being further questioned about the circumstances under which he met his wife, Applicant admitted that he met her on an online dating site around May 2017. He stated that he did not previously disclose this because he was embarrassed by meeting his spouse online and did not want people to look at him differently. In his May 2020 response to interrogatories, Applicant stated, “[d]ue to stigmatization that ‘oh he met his wife online,’ I did not disclose that I met my wife online first. I met my wife online in summer 2017.” Decision at 6 (citing Government Exhibit 2). Applicant made numerous other trips to Columbia and subsequently divorced his wife in April 2022 after she refused to cooperate with the process required to immigrate to the United States. That same month, Applicant met another Colombian woman online and returned to Columbia in September 2022 to visit her in- person. He claims that after that visit he decided not to pursue that relationship or any other with a foreign national.

DISCUSSION

Applicant argues on appeal that the Judge was biased against him. We do not find his argument persuasive. There is a rebuttable presumption that a judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. See ISCR Case No. 02-08032 at 3 (App. Bd. May 14, 2004). The issue is not whether Applicant personally believes that the Judge was biased or prejudiced against him but, rather, whether the record “contains any indication that the Judge acted in a manner that would lead a reasonable person to question the fairness and impartiality of the Judge.” See ISCR Case No. 01-04713 at 2 (App. Bd. Mar. 27, 2003). Applicant’s allegation of bias appears to be premised in his belief that the Judge’s finding that Applicant lacked credibility could only be the result of a biased assessment. His vague example asserts that, because he e-mailed the Judge prior to the hearing and the Judge directed him not do so, her “emotions” influenced her adverse credibility determination. There is no nexus between these two points. Formulating an opinion of Applicant’s credibility is permissible and within the scope of the Judge’s role, particularly in a case involving alleged lies. A judge may form and express an opinion about the evidence at hearing, including the credibility of a witness or the applicant. This does not demonstrate bias. See, e.g., DISCR Case No. 94-0972, 1995 WL 470208 at *3 (App. Bd. Jul. 20, 1995) (citing Okura & Co. v. Tobey, 871 F.2d 775, 776 (8th Cir. 1989)). The transcript in this matter reflects that the Judge’s questions were often pointed; however, they were targeted to the issues to be determined at hearing. See, e.g., ISCR Case No. 03-24632 at 2 (App. Bd. May 19, 2006) (no bias even though the judge’s comments were “gratuitous and at times harsh”); ISCR Case No. 15-03162 at 3 (App. Bd. Jul. 25, 2017) (no impartiality although the judge “questioned Applicant sharply at times”); ISCR Case No. 16-03451 at 4 (App. Bd. Dec. 26, 2017) (no bias although judge “conveyed a certain testiness”); ISCR Case No. 20-02787 at 4 (App. Bd. Mar. 9, 2022) (no impartiality where the judge’s “questioning and comments were occasionally sharp”). Having examined the record, we find that there is substantial independent evidence upon which the Judge’s credibility determination was based, including that Applicant was trained regarding his obligation to report foreign travel and admitted that he lied to investigators about when and how he met his former spouse. There is nothing in the record that would likely persuade a reasonable person that the Judge lacked the requisite impartiality. Applicant’s concerns are insufficient to overcome the rebuttable presumption that the Judge acted in an impartial and unbiased manner. The remainder of Applicant’s challenges to the findings and whole person analysis fail to establish any harmful error. The Judge’s material findings of security concern are “based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence,” and Applicant has cited to no harmful error in the Judge’s findings. See ISCR Case No. 12-03420 at 4 (App. Bd. Jul. 25, 2014). We find that the Judge adequately addressed the circumstances surrounding all aspects of Applicant’s travel to Columbia, the parameters of his relationship with his ex-wife, and the manner

in which he revealed this information to his employer and Government officials. Applicant’s “disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.” ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Moreover, Applicant’s arguments fail to rebut the presumption that the Judge considered all of the record evidence. The Judge’s conclusion that Applicant failed to mitigate the personal conduct security concerns is sustainable. Applicant has failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which is sustainable on the 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶ 2(b).

ORDER

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board