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ISCR Case 05-02210.a1 — CASE

ISCR Case 05-02210.a1unknown

Case Headnote

ISCR Case No. 05-02210.a1

Jan 18, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This case involved a naturalized U.S. citizen, originally from Iran, whose security clearance was challenged under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The concerns stemmed from the applicant's family ties in Iran and possession of an Iranian passport.

An Administrative Judge initially issued a favorable decision. However, the DOHA Appeal Board reversed this decision, citing two primary reasons. First, the Administrative Judge did not adequately consider the nature of the Iranian regime and its potential implications for U.S. national security. Second, the Judge's conclusions failed to address discrepancies in the evidence concerning the applicant's connections to individuals reportedly under investigation for terrorism links.

Due to these identified shortcomings in the initial adjudication, the Appeal Board found that the Administrative Judge's decision was not supported by the record. Consequently, no final security clearance outcome was reached at this stage, and the case was remanded for further proceedings.

Conditions Referenced

Disqualifying

AG B2raisedForeign Influence
AG C1raisedForeign Preference

Key Rule Quoted

“A Judge is required to 'examine the relevant data and articulate 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)

Procedural Posture

SOR issuedSep 6, 2005
Answer filed—
Hearing heldAug 31, 2007
Decision dateJan 18, 2008

Cite For

Failure to Consider the Implications of the Iranian Regime Under Guideline B
Discrepancies in Evidence Regarding Connections to Individuals Under Investigation for Terrorism Under Guideline C
Importance of a Thorough Whole-person Analysis in Security 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

Reversed

The appeal involved a security clearance decision where the Administrative Judge granted the Applicant a clearance. The Department Counsel appealed, arguing that the Judge's decision was arbitrary and capricious, particularly regarding the nature of the Iranian regime and its implications for security. The Appeal Board reversed the Judge's decision, finding that the conclusions were not supported by a rational connection to the evidence.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowJacqueline T. Williams — granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's conclusions failed to address the nature of the Iranian regime and other aspects of Applicant's conduct.

Why the Board ruled this way

The Judge's decision was reversed due to failure to consider significant aspects of the case, particularly the nature of the Iranian regime and its implications for national security. The conclusions drawn by the Judge were found to be arbitrary and capricious, lacking a rational connection to the evidence presented.

No rational connection between facts and conclusionIgnored material evidence

Standard of review applied

Arbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
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 C; Guideline B DIGEST: The Judge failed to address the nature of the Iranian regime. The Judge’s conclusions also fail to address other aspects of Applicant’s conduct and circumstances as well as discrepancies in the evidence. Favorable decision reversed. CASENO: 05-02210.a1 DATE: 01/18/2008 DATE: January 18, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-02210

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Francisco Mendez, Esq., Department Counsel FOR APPLICANT Pro Se

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 6, 2005, DOHA issued a statement of reasons advising Applicant of the Department Counsel does not appeal the Judge’s findings and conclusions regarding Guideline C. Applicant denies the existence of an uncle. See Decision at 5, citing transcript at 33. basis for that decision—security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On August 31, 2007, after the hearing, Administrative Judge Jacqueline T. Williams granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law.1 Whether the Record Supports the Administrative Judge’s Factual Findings A. The Judge made the following relevant findings of fact: Applicant was born in Iran and immigrated the United States at the age of 18 in 1978. He became a naturalized U.S. citizen in 1982. His wife is a dual citizen of the U.S. and Iran. Applicant’s two children are American citizens by birth. Applicant applied for an Iranian passport, which was reissued in December 1998. Applicant used the Iranian passport to travel to Iran in at least 1997, 1998, and 2000 for family reasons. Applicant still possessed an Iranian passport when he was interviewed by an investigator on February 9, 2005. Eight days later, the Embassy of Pakistan confirmed that Applicant submitted his passport in order to renounce his Iranian citizenship. Applicant stated that he no longer considers himself an Iranian citizen. Applicant has no assets in Iran. Applicant’s parents are dual citizens of the U.S. and Iran. His father is a retired physician, and his mother is a retired midwife. Applicant states that his parents never worked for the Iranian government. Applicant’s parents travel to Iran about every other year to visit family. Applicant has two siblings who were born in Iran, but now live in the United States. Applicant is unsure whether they are dual citizens. Applicant does not believe they have traveled back to Iran. Applicant has two aunts, cousins, and an uncle who are citizens and residents of Iran.2 Applicant speaks to his aunts once or twice a year and each cousin about twice a year. One aunt was a doctor, and one was a physical therapist. Applicant is not sure what work his cousins do, but states that neither the aunts nor the cousins have ever worked for the Iranian government. The SOR alleges that Applicant bought his house from an individual who is under investigation by the U.S. government for links to terrorist organizations. The SOR also alleges that at least two of Applicant’s neighbors are under investigation for links to terrorist organizations and that their houses were searched as a result of the investigation. Applicant states that he had no knowledge of that information when he bought his house, learning of it only from the government’s allegations. “The government of Iran is controlled by radical Islamic clerics. The State Department reports that the government of Iran has a poor record of protecting human rights. Iran has a history of poor relations with the U.S. because it attempts to acquire nuclear weapons and other weapons of mass destruction, supports international terrorism, and opposes the Middle East peace process.” Decision at 6. B. Discussion Department Counsel has not challenged the judge’s findings. Therefore, they are not an issue on appeal. To the extent that the Judge’s findings are relevant to the assigned error, they will be addressed below. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interest of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Department Counsel contends that the Judge erred in her application of Guideline B Disqualifying and Mitigating Conditions. In her decision, the Judge correctly found that all of Applicant’s immediate family reside in the U.S. According to the record, only two aunts and cousins currently reside in Iran. However, Department Counsel points out that Applicant’s parents, with whom he has a close relationship, travel to Iran regularly and have at least a bank account in Iran. Department Counsel cites multiple State Department documents in the record regarding the dangers to American citizens, particularly those of Iranian birth, who travel to Iran. Under these circumstances, Department Counsel argues that Applicant’s parents, even though they reside in the U.S., raise security concerns which the Judge did not consider. The major issue is the nature of the Iranian regime itself. The Board has held that it is error for a Judge to fail to take into consideration a significant aspect of a case. See, e.g., ISCR Case No. 02-00318 at 7-8 (App. Bd. Feb. 25, 2004). While there is generally no requirement that the Judge discuss every piece of record evidence, a Judge’s conclusions must be based on the record evidence as a whole. Id. Here, the record evidence includes a significant amount of material about the nature of the Iranian regime’s hostility toward the United States, its poor human rights record, and its sponsorship of international terrorism. The Judge briefly refers to that evidence in her findings of fact, but makes no mention of it in her conclusions. The Judge even states, with no explanation, that “Applicant, as a U.S. citizen, is unlikely to be put in a position where he would have to choose between loyalty to the U.S. and his limited family, in Iran.” Decision at 9. The Judge’s failure to take the nature of the Iranian regime into account in reaching her conclusions renders those conclusions arbitrary and capricious. Likewise, as Department counsel points out, the Judge’s failure to discuss the nature of the Iranian regime while performing a whole-person analysis renders that analysis arbitrary and capricious. To the extent there is some evidence indicative of mitigation, the Judge does not explain why it outweighs the significant security concerns raised in the case, particularly the poor human rights record of the Iranian government. See, e.g., ISCR Case No. 04-12435 at 4 (App. Bd. Apr. 9, 2007). In addition to the Judge’s failure to address the nature of the Iranian regime, there are several aspects of Applicant’s conduct and circumstances as well as discrepancies in the evidence which the Judge’s conclusions fail to address. To the extent these matters are addressed in the Judge’s findings of fact, the Judge’s conclusions fail to follow rationally from those findings. However, there is significant record evidence which is not addressed at all in the Judge’s decision.

ORDER

The Judge’s favorable security clearance decision is REVERSED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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