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ISCR Case 06-25979.a1 — CASE

ISCR Case 06-25979.a1denied

Case Headnote

ISCR Case No. 06-25979.a1

Apr 16, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, a naturalized U.S. citizen originally from Morocco, was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed from several unmitigated foreign influence concerns, primarily her close family ties in Morocco.

Specifically, the applicant has a brother serving in the Moroccan armed forces, and her parents also reside in Morocco. Further complicating the assessment, her husband holds dual citizenship, which raised additional foreign influence concerns. The applicant's financial support to her family in Morocco, coupled with the potential for her to inherit assets from them, were also identified as significant risks.

While the applicant presented character references and demonstrated financial ties to the U.S., these were not deemed sufficient to mitigate the national security concerns posed by her foreign connections. Consequently, the judge found that the disqualifying conditions under Guideline B outweighed any mitigating factors, leading to the denial of her security clearance.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe evidence presented by the applicant was insufficient to overcome the security concerns.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 28, 2007
Answer filed—
Hearing heldNov 30, 2007
Decision dateApr 16, 2008

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Familial Ties on Security Clearance Decisions
Burden of Proof on Applicants to Mitigate Security Concerns

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 foreign influence concerns under Guideline B. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the decision was rationally connected to the facts presented.

Appealed bythe applicant

Applicant representationAttorney

Judge belowHenry Lazzaro — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that certain findings were not based on substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings and concluded that the Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

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: The Judge’s adverse conclusion under Guideline B are sustainable given his findings regarding Applicant’s close tie to family members in Morocco. Adverse decision affirmed, CASENO: 06-25979.a1 DATE: 04/16/2008 DATE: April 16, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-25979

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James E. Corl, Jr., Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 28, 2007, 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 November 30, 2007, after the hearing, Administrative Judge Henry Lazzaro denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether certain of the Judge’s findings were not based upon substantial record evidence; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant was born in Morocco and was solely a Moroccan citizen until she became a naturalized United States citizen in 2004. She also obtained a United States passport in June 2004. Applicant has held an interim security clearance for approximately 18 months, after being hired by her employer without any adverse information being reported. Applicant’s character witnesses, consisting of supervisors and co-workers, consider her to be dependable, professional, diligent, conscientious, detail oriented, and very security conscious. Applicant met her husband, a dual U.S. and Moroccan citizen, while he was visiting in Morocco in the late 1990s. They were married in Morocco. They have two children. Although Applicant testified she considers her children to be solely U.S. citizens, GE 4 indicates that children born to Moroccan fathers are considered by Moroccan law to be citizens of Morocco. Applicant’s husband immigrated to the U.S. sometime in the 1990safter marrying his cousin who was a U.S. citizen. He became a U.S. citizen about nine years ago. Applicant completed her education in Morocco. She has worked for her present employer since 2005. Applicant’s parents are citizens and residents of Morocco. Her father is a retired clerk and her mother has never worked outside the home. They subsist on a pension her father receives, the income from a small business he operates, the $600-700 Applicant sends them annually, and on additional financial assistance provided by her siblings. Applicant has weekly to bi-weekly telephone contact with her parents and with her sibling who resides with them. The only asset of any value owned by her parents is the house in which they live. Applicant estimated she will inherit about $5,000 as her share of that house when her parents die. Applicant has a brother who is a career officer in the Moroccan armed forces. Applicant has additional siblings who are citizens and residents of Morocco. A brother resides in Spain. Her brothers who reside in Morocco are all employed. The brother who resides in Spain formerly did home repair work but was unemployed as of the date of the hearing. One of her siblings resides with and cares for Applicant’s elderly parents. With the exception of the sibling who resides with her parents, Applicant has sporadic telephone and/or e-mail contact with her other siblings about once every other month. Applicant’s mother-in-law and father-in law are also citizens and residents of Morocco. They are retired and divorced. Her mother-in-law never worked outside the home and presently is supported by a child who lives with her and her other children who reside in Spain. Applicant’s father-in-law is retired from a foreign military service other than the Moroccan military. In addition to the time she resided in Morocco to complete her education, Applicant visited there three times since emigrating to the U.S. Other than the trip to complete her schooling, Applicant’s travels to Morocco were solely for the purpose of visiting relatives. Applicant and her husband own a house in the U.S. She testified the house is not mortgaged and is valued at between $30,000 and $40,000. Her salary is $62,000 annually. She has money withheld from her pay that is deposited in an educational account for the benefit of her children when they reach age 18. The only thing Applicant owns in Morocco is a small savings account for her use when she travels there and which currently has about a $200 balance. Morocco is a constitutional monarchy with long-standing ties to the U.S. It is viewed as stable and democratizing. Terrorist activity has occurred there in recent years. Additionally, there have been reports of arbitrary arrests; restrictions on freedom of speech, press, etc; lack of judicial independence, and police misconduct. In the Conclusions section of his decision, the Judge noted, inter alia, Applicant’s close ties to her family members and in-laws in Morocco, the dual-citizenship status of her husband, and the above-mentioned terrorist activity that has occurred in that country. The Judge stated that the evidence which Applicant presented was not sufficient to overcome the Guideline B security concerns which her case raised. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. th denied, 499 U.S. 905 (1991). (Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance); Directive ¶ E3.1.15. (After the government presents evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions.) “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Applicant’s submission on appeal contains new evidence, which the Board cannot consider. See Directive ¶ E3.1.29 (“No new evidence shall be received or considered by the Appeal Board.”) See also ISCR Case No. 06-22871 at 2 (App. Bd. Jan. 24, 2008); ISCR Case No. 06-17209 at 2 (App. Bd. Nov. 14, 2007). The Board gives due consideration to the Hearing Office cases which Applicant has cited in her appeal brief. However, such decisions are not binding on Hearing Office Judges or on the Board. ISCR Case No. 06-16704 at 2 (App. Bd. Jan. 30, 2008). Applicant challenges several of the Judge’s findings of fact. However, any errors in the Judge’s findings are harmless in that they have not affected the outcome of the case. “There is ample support in the record for the Judge’s adverse security clearance decision.” ISCR Case. No. 04-09353 at 2 (App. Bd. Dec. 17, 2007). The Board concludes the Judge has drawn “a rational connection between the facts found” and his ultimate adverse security clearance decision. 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)). Accordingly the Judge’s decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board