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ISCR 04-08116.a1: Guideline B security clearance appeal, denied (2007) · CASE

ISCR Case 04-08116.a1denied

Case headnote

ISCR Case No. 04-08116.a1

Jul 2, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline B (Foreign Influence) due to unmitigated foreign ties. The appeal board affirmed the denial, concluding that the applicant failed to demonstrate that the judge's decision was arbitrary, capricious, or contrary to law.

Specifically, the applicant did not meet the burden of proof to mitigate the security concerns raised by his foreign connections. The judge had applied Disqualifying Condition AG ¶ 6 and considered Mitigating Condition AG ¶ 8, but ultimately found the security risks unresolved.

The appeal board found no error in the judge's assessment, upholding the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 6raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.

Key rule quoted

“An applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error.”

Procedural posture

SOR issuedJun 9, 2005
Answer filed—
Hearing heldDec 11, 2006
Decision dateJul 2, 2007

Cite for

Affirmation of Denial Based on Foreign Influence Under Guideline B
Insufficient Burden of Proof to Mitigate Security Concerns
Disagreement with Evidence Weighing Does Not Demonstrate Error by the Judge

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 erred in weighing the evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan 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 contends that the Judge's adverse clearance decision under Guideline B is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the Judge's conclusions were arbitrary, capricious, or contrary to law.

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 D. Hipple
Jean E. Smallin
William S. Fields

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: An applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error. The favorable evidence cited by Applicant does not show that the Judge’s decision was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 04-08116.a1 DATE: 07/02/2007 DATE: July 2, 2007 In Re: --------- SSN:--------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-08116

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 9, 2005, DOHA 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 December 11, 2006, after the hearing, Administrative Judge John Grattan The Judge found in Applicant’s favor with respect to SOR paragraphs 1.a, 1.c, 1.d, 1.e, and 1.f. Those favorable findings are not at issue on appeal. As part of his appeal, Applicant offers new evidence in the form of additional explanations about his circumstances. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 05-03143 at 2 (App. Bd. Dec. 20, 2006). Metz, Jr., denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision under Guideline B is arbitrary, capricious or contrary to law.1 Applicant contends essentially that the Judge erred in weighing the evidence in this case and that his overall unfavorable decision under Guideline B is arbitrary, capricious and contrary to law. In support of that contention, Applicant argues that he does not discuss his work with his father in India; his father is now retired; he is financially independent; he is not in a position to be exploited; and he has never been involved in activities against the United States. Applicant also emphasizes his contacts with the United States including the fact that he has voted in U.S. elections, has served on a jury, and pays taxes. The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the security concerns raised by his foreign ties and connections had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. The application of disqualifying and mitigating conditions 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. 01- 14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An 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 the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. In this case, the Judge weighed the mitigating evidence offered by Applicant against the nature and seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions. The Judge found in favor of the Applicant with respect to all but one of the factual allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guideline B is sustainable.

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board