CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-09542.a1 — CASE

ISCR Case 06-09542.a1denied

Case Headnote

ISCR Case No. 06-09542.a1

Sep 4, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance due to unmitigated concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial was primarily based on the applicant's ties to Poland, specifically his possession and renewal of a Polish passport, which raised significant security concerns under Disqualifying Condition C1.

Further concerns arose from the applicant's family ties and property interests in Poland, which were not sufficiently mitigated, aligning with Disqualifying Condition B2. The Appeal Board affirmed the denial, concluding that the applicant failed to adequately address the security risks posed by these foreign connections and property holdings.

Conditions Referenced

Disqualifying

C1raisedForeign Preference
B2raisedForeign Influence

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedAug 31, 2006
Answer filed—
Hearing heldFeb 28, 2007
Decision dateSep 4, 2007

Cite For

Burden of Proof Shifts to Applicant After Government Raises Security Concerns
Insufficient Mitigation of Foreign Ties Under Guidelines B and C
Discretion in Weighing Mitigating Evidence Against Disqualifying Factors

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 an applicant seeking a security clearance who was denied based on security concerns under Guidelines B and C. The applicant argued that the Administrative Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding that the applicant did not demonstrate harmful error in the Judge's conclusions regarding the security concerns.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision under Guidelines C and B was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Applicant did not meet the burden of demonstrating that the Judge's conclusions regarding the security concerns were arbitrary, capricious, or contrary to law. The Judge reasonably weighed the evidence and explained why the mitigating evidence was insufficient to overcome the government's security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline B DIGEST: Once the government presents evidence raising security concerns the burden shifts to the applicant to establish mitigation. Adverse decision affirmed. CASENO: 06-09542.a1 DATE: 09/04/2007 DATE: September 4, 2007 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-09542

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 August 31, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the 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 that the case be decided upon the written record. On February 28, 2007, after considering the record, Administrative Judge Juan J. Rivera 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 Guidelines C and B is arbitrary, capricious or contrary to law. Applicant argues that the Judge erred in concluding that he had not mitigated the security concerns raised under Guidelines C and B. In support of this argument, Applicant summarizes the favorable evidence he presented below. The Board does not find Applicant’s argument persuasive. The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the security concerns raised by his possession and renewal of a Polish passport, and his family ties and property interests in Poland, 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. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. See Directive ¶ E3.1.15. 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 reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome 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. Jun. 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guidelines C and 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