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ISCR Case 05-04126.a1 — CASE

ISCR Case 05-04126.a1unknown

Case Headnote

ISCR Case No. 05-04126.a1

Apr 19, 2007· Hon. Jeffrey D. Billett· appeal

Summary

This case involved an American citizen with family in Iran, raising security concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) due to the Iranian government's hostile nature. Disqualifying conditions AG B2 and AG C1 were initially raised.

The Chief Administrative Judge had granted a security clearance, applying mitigating conditions AG B1 and AG C1. However, the Appeal Board reversed this decision. The Board found that the applicant's family had previously been targeted for coercion and exploitation, and that the Chief Judge's conclusions were arbitrary and unsupported by evidence.

Ultimately, no security clearance was granted. The Appeal Board determined that the applicant's family ties in Iran presented a significant security risk, particularly given the potential for exploitation of the applicant's family by the hostile Iranian government.

Conditions Referenced

Disqualifying

AG B2raisedForeign Influence
AG C1raisedForeign Preference

Mitigating

AG B1rejectedMitigating Condition 1The Chief Judge's conclusion that the applicant's family was not in a position to be exploited was found to be unsupported by the record.
AG C1notedMitigating Condition 1

Key Rule Quoted

“An applicant with immediate family members living in a country hostile to the United States has a heavy burden.”

Procedural Posture

SOR issuedOct 4, 2005
Answer filed—
Hearing heldJun 21, 2006
Decision dateApr 19, 2007

Cite For

Security Risks Associated with Family Ties in Hostile Countries Under Guideline B
Arbitrary and Capricious Standards in Security Clearance Decisions
The Heavy Burden on Applicants with Family in Countries Hostile to the U.S.

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 decision by the Chief Administrative Judge granting a security clearance to the applicant, who has family in Iran. The Department Counsel appealed, arguing that the Judge's conclusions regarding foreign influence and the whole-person analysis were arbitrary and unsupported by evidence. The Appeal Board reversed the decision, finding that the Judge's conclusions were not rationally connected to the evidence presented.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales — 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 Chief Administrative Judge's application of Foreign Influence Mitigating Condition 1 was arbitrary, capricious, and contrary to law.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Chief Judge's whole-person analysis is unsustainable as it is unsupported by the record evidence.

Why the Board ruled this way

The Chief Administrative Judge's conclusions did not follow from his own findings, and the application of mitigating conditions was found to be arbitrary and capricious.

No rational connection between facts and conclusionIgnored material evidence

Standard of review applied

Harmful-error gatekeeperArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

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: An applicant with immediate family members living in a country hostile to the United States has a heavy burden. Applicant Iranian family have previously been targeted for coercion and exploitation. The Judge’s conclusions do not follow from his own findings. Favorable decision reversed. CASENO: 05-04126.a1 DATE: 04/19/2007 DATE: April 19, 2007 In Re: --------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-04126

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro Se

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 4, 2005, DOHA issued a statement of reasons advising Applicant of the basis Department Counsel does not appeal the Chief Administrative Judge’s findings and conclusions as to Guideline C. 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 June 21, 2006, after the hearing, Chief Administrative Judge Robert Robinson Gales 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 raised the following issues on appeal: whether the Chief Administrative Judge’s application of Foreign Influence Mitigating Condition (FIMC) 1 was arbitrary, capricious, and contrary to law and the record evidence; and whether the Chief Judge’s whole-person analysis is unsustainable because the whole-person considerations relied upon are unsupported by the record evidence and their application is arbitrary, capricious, and contrary to law.1 Whether the Record Supports the Chief Judge’s Factual Findings A. The Chief Administrative Judge made the following relevant findings of fact: Applicant is an American citizen by birth, but grew up in Iran. Applicant’s grandfather died when Applicant was a small child, and Applicant’s parents (his father, an Iranian citizen, and his mother, American) moved to Iran because Applicant’s father inherited land at the death of his father. The Iranian government seized the land. Applicant’s father eventually opened his own business. Applicant’s father had a green card when he lived in the U.S. He was not allowed to return to the U.S. for many years, and the green card expired. When Applicant’s father retires, he will apply for a new green card, and he and his wife will emigrate to the U.S. Applicant’s parents live quietly, and neither has any ties to the Iranian government. Applicant was educated primarily in Iran. He married a college classmate in Iran and both of them worked for Applicant’s father before moving to the U.S. in 2001. Applicant is separated from his wife, who is now a naturalized American citizen. They have no children. Applicant’s sister resides in the U.S. Iran is a member of what President George W. Bush characterized as the “axis of evil.” While there was previously a lengthy period of friendship and cooperation between Iran and the U.S. when the Shah reigned, the situation changed when the fundamentalist Islamic Revolution toppled the Shah in 1979. The resulting theocratic government has repressed its people, pursued weapons of mass destruction, ignored customary principles of international law, endorsed fundamentalist Muslim political movements abroad, and supported international terrorism. Iran has remained the most active state sponsor of terrorism and has continued to exhort a variety of groups to use terrorism in pursuit of their goals. Iran continues to pursue policies that are hostile to the U.S. The U.S. does not currently have diplomatic or consular relations with Iran and cannot provide protection to U.S. citizens in that country. Iran is known to conduct intelligence operations and economic espionage against the U.S., and is a nation whose interests are inimical to those of the U.S. “A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States” Directive ¶ E2.A2.1.3.1. B. Discussion The appeal involves the Chief Administrative Judge’s conclusions. Whether the Record Supports the Chief Administrative Judge’s Ultimate Conclusions An Administrative 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 Appeal Board may reverse the Administrative 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. Our scope of review under this standard is narrow, and we may not substitute our judgment for that of the Administrative Judge. We may not set aside an Administrative Judge’s decision “that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency. . .” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42. We review matters of law de novo.

Department Counsel argues that the Chief Administrative Judge erred by applying FIMC 12 and concluding that Applicant’s family in Iran is not in a position to be exploited by the Iranian government. Department Counsel contends that the Chief Judge’s conclusion regarding the possibility of exploitation is arbitrary, capricious, and unsupported by the record evidence. Department Counsel’s argument has merit. Application of FIMC 1 requires that an applicant’s relatives in a foreign country are not agents of a foreign government and that they are not in a position to be exploited by a foreign government in a way that could force the applicant to choose between them and the United States. Here, the Chief Judge stated that Applicant’s family members have no ties to the Iranian government. Regarding the issue of exploitation, the Chief Judge noted the inimical nature of Iran’s relationship with the U.S., citing in particular Iran’s support of terrorism and its intelligence operations and economic espionage against the U.S. In this case, Applicant’s parents have already suffered at the hands of the Iranian government. Land owned by Applicant’s grandfather were seized by the Iranian government after his death. At the time of the Islamic Revolution, Applicant’s parents received death threats because of his mother’s nationality. Moreover, Applicant’s father, who had lived in the U.S. for ten years and held a green card, was not allowed to leave Iran for many years after his return from the U.S. We have only Applicant’s testimony to indicate that the Iranian government would now allow him to emigrate to the U.S. if a new green card were issued to him. As discussed above, the evidence indicates that Applicant’s parents live under a regime hostile to the U.S. The Board has previously held that an applicant with immediate family members living in a country hostile to the U.S. has a heavy burden to show that those family ties do not pose As authority for this statement, the Chief Judge cites to the decision of a fellow Administrative Judge in ISCR Case No. 03-21434 (A.J. May 24, 2006). That case was remanded by the Appeal Board because of error on the part of the Judge. See ISCR Case No. 03-21434 (App. Bd. Feb. 20, 2007). The Board has previously noted that decisions by Hearing Office Judges are not legally binding precedent on that Judge’s colleagues or the Board. See ISCR Case No. 04-04004 at 2 (App. Bd. July 31, 2006); and ISCR Case No. 02-24752 at 3 (App. Bd. July 31, 2006). a security risk. See, e.g. ISCR Case No. 04-06386 at 4 (App. Bd. Aug. 25, 2006); ISCR Case No. 03-09053 at 4 (App. Bd. Mar. 29, 2006). As a result, Applicant has a greater burden than would be the case for an applicant with relative living under another sort of government. Compare ISCR Case No. 03-02878 at 3 (App. Bd. June 7, 2006); ISCR Case No. 03-19101 at 2 (App. Bd. Oct. 13, 2006). The record evidence indicates that Applicant has close ties to his parents and speaks to his mother weekly. Compare ISCR Case No. 04-06564 at 4 (App. Bd. May 30, 2006); ISCR Case No. 04- 00631 at 5 (App. Bd. Sept. 6, 2006). Finally, the Chief Judge found and the record evidence indicates that Applicant’s family have previously been targeted for coercion and exploitation by the Iranian regime. Despite all this record evidence, the Chief Judge provides no analysis or discussion as to how those actions against Applicant’s family heighten the government’s security concerns presented in this case. See, e.g., ISCR Case No. 04-00109 at 5-6 (App. Bd. July 13, 2006). The Chief Judge states that “the mere possession of family ties with a person in a foreign country should not, as a matter of law, be disqualifying under Guideline B.” He then writes: “Based on the evidence, I conclude the security concerns manifested by the government, in this instance, are largely unfounded.” Decision at 12. The Chief Judge’s conclusion in this regard is error, in that it ignores his own findings regarding the nature of the Iranian regime and the significance of its prior treatment of Applicant’s family by that regime. Such factors are “. . . important evidence that provides context for all the other evidence of record and must be brought to bear on the Judge’s ultimate conclusions in the case.” See, e.g., ISCR Case No. 04-02511 at 5 (App. Bd. March 20, 2007), quoting ISCR Case No. 04-07766 at 3 (App. Bd. Sept. 26, 2006). With regard to Department Counsel’s second argument, the Chief Judge’s whole person analysis is unsustainable in light of the foregoing, in that it fails to consider an important aspect of the case, fails to articulate a satisfactory explanation for its conclusions, and offers an explanation for the decision that runs contrary to the record evidence. See, e.g., ISCR Case No. 97-0435 at 3 (July 14, 1998) (citing Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). The Chief Judge’s conclusory statement that Applicant has very close ties to the U.S. is not supported by his own findings of fact. Applicant is an American citizen by birth, but returned to Iran, the country of his father, as a very young child and received most of his education there. While Applicant visited the U.S. regularly with his mother and attended summer school in the U.S., he did not move back to the U.S. until 2001, when he was already well into adulthood. The favorable facts recited by the Judge either do not readily suggest refutation, extenuation, or mitigation or have low probative value. See, e.g., ISCR Case No. 04-00109 at 5 (App. Bd. July 13, 2006).

ORDER

The decision of the Chief Administrative Judge granting Applicant a security clearance is REVERSED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Administrative Judge Member Appeal Board