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ISCR 06-14978.a1: Guideline B security clearance appeal (2007) · CASE

ISCR Case 06-14978.a1unknown

Case headnote

ISCR Case No. 06-14978.a1

unknownOct 11, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves a 56-year-old U.S. citizen, originally from Morocco, who was denied a trustworthiness designation. The denial stemmed from concerns under Guideline B (Foreign Influence), specifically Disqualifying Condition B1, related to his family ties in Morocco.

The Appeal Board reviewed the decision and remanded the case for further consideration. The Board highlighted the necessity of a detailed analysis of Morocco's current geopolitical situation. This analysis is crucial to properly assess any potential risks of coercion that might arise from the applicant's family connections in the country.

As of the current information, there has been no final outcome in this case.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

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 issuedAug 31, 2006
Answer filed—
Hearing held—Applicant requested decision on written record.
Decision dateOct 11, 2007Remanded for further consideration.

Cite for

Need for Geopolitical Analysis in Foreign Influence Cases
Importance of Articulating a Rational Connection Between Facts and Decisions
Remand for Failure to Consider Coercion Risks Related to Foreign Ties

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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: The Judge’s failure to make findings and conclusions concerning the geopolitical situation in Morocco impairs his analysis. Adverse decision remanded. CASENO: 06-14978.a1 DATE: 10/11/2007 DATE: October 11, 2007 In Re: ------------ Applicant for ADP I/II/III Position ) ) ) ) ) ) ) ) ADP Case No. 06-14978

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 trustworthiness designation. On August 31, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On May 9, 2007, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a trustworthiness designation. Applicant submitted a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s decision is arbitrary and capricious. We remand the case to the Judge. Whether the Record Supports the Administrative Judge’s Factual Findings A. Facts The Administrative Judge found as follows: Applicant is 56 years of age. He was born in Morocco. He became a United States citizen in 1992. His spouse, to whom he has been married since 1984, was born in the United States. Their two children were born in the United States. Applicant’s mother and nine siblings are citizens of Morocco. His mother and seven siblings reside in Morocco; one sibling resides in a third country and another resides in the United States. One of applicant’s siblings is a senior Moroccan government official, and as such, is an agent of Morocco. Applicant traveled to Morocco in at least 1997, 1999, 2000 and 2002 to visit his family. He communicates with his mother every three to four weeks by telephone, and with his siblings once a month by telephone. In a written statement he gave to the OPM in October 2004, Applicant stated he owned a plot of farm land in Morocco. In his response to the SOR, he stated he no longer owns any property in Morocco. B. Discussion The Appeal Board’s review of the Judge’s findings of fact is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Administrative Judge’s credibility determinations. Directive ¶ E3.1.32.1. The Judge’s findings will be discussed in the context of his conclusions Whether the Record Supports the Administrative 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 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. We review matters of law de novo. Applicant contends that the Judge’s adverse trustworthiness determination is arbitrary and capricious. In support of that contention, he points to his lengthy and significant ties to the United States and argues that his family located in Morocco present no trustworthiness concern. The Board remands the case for further processing. In this case, the Judge’s decision contains no findings or conclusions about the nature of the Moroccan government or the nature of potential threats posed by any groups operating within that country. The Judge’s failure to make findings and conclusions concerning the geopolitical situation within Morocco, including the security/intelligence profile of the country vis-a-vis the United States, impairs his analysis, both of the Guideline B concerns and the whole-person. See, e.g., ISCR Case No. 04-02630 at 2-3 (App. Bd. May 23, 2007). Therefore, we remand the case to the Judge for a new decision. The new decision should include a Guideline B and whole-person analysis which takes into account the nature of the Moroccan government, the security and intelligence profile of that country vis-a-vis the United States, and situation in Morocco insofar as it bears on the potential for coercion of the Applicant. It should not contain any language pertaining to security clearances as this case is an ADP trustworthiness determination.

ORDER

The case is REMANDED to the Judge for the issuance of a new decision. Signed: Miachael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board