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ISCR Case 07-07928.a1 — CASE

ISCR Case 07-07928.a1denied

Case Headnote

ISCR Case No. 07-07928.a1

Oct 1, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An engineer and U.S. citizen, born in Iran, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed from the applicant's multiple family members residing in Iran, a country identified as hostile to the U.S.

The adjudicator raised disqualifying conditions under Adjudicative Guidelines (AG) ¶ 7 and AG ¶ 8, citing the potential for foreign influence and preference due to these family ties. While mitigating conditions under AG ¶ 9 were considered, the judge ultimately found them insufficient.

The core reason for the denial was the applicant's inability to adequately mitigate the security risks posed by his family connections in Iran. The judge concluded that granting a clearance was not consistent with national security interests, leading to the adverse decision.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence
AG ¶ 8raisedForeign Preference

Mitigating

AG ¶ 9rejectedMitigating ConditionsThe applicant's arguments regarding his character and lack of foreign assets did not outweigh the security risks posed by his family ties.

Key Rule Quoted

“[A]n applicant with family members living in a country hostile to the U.S. bears a ‘heavy burden’ in demonstrating that those family members do not pose a security risk.”
— ISCR Case No. 06-18918 at 2 (App. Bd. May 23, 2008)

Procedural Posture

SOR issuedNov 28, 2007
Answer filed—
Hearing heldJun 27, 2008
Decision dateOct 1, 2008

Cite For

Security Clearance Denial Due to Family Ties in a Hostile Country
Impact of Foreign Influence on Security Clearance Decisions
Heavy Burden of Proof for Applicants with Foreign Family Ties

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 for a security clearance who was denied due to security concerns related to foreign influence and preference. The applicant argued that the Judge erred in weighing evidence and in the whole person analysis. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not consider certain mitigating evidence.
Whole-person analysis — raised by the applicantRejected
Applicant contended that the Judge's whole person analysis was flawed.

Why the Board ruled this way

The Board found no error in the Judge's application of the mitigating conditions and whole person analysis, affirming that the Judge's decision was sustainable based on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
Michael D. Hipple
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; Guideline C DIGEST: Born in Iran, Applicant became a U.S. citizen in 2000. Applicant’s parents, five siblings, parents-in-law and brother-in-law are all citizens and residents of Iran. The Judge’s decision that it is not clearly consistent with the interests of national security to grant Applicant a security clearance is sustainable on this record. Adverse decision affirmed. CASENO: 07-07928.a1 DATE: 10/01/2008 DATE: October 1, 2008 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-07928

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Edward A. Kraus, Esq. The Judge’s favorable decision under SOR ¶ 1(c) and under Guideline C is not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 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) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 27, 2008, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his application of the Guideline B mitigating conditions; and whether the Judge’s whole person analysis was error.1 Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an engineer for a defense contractor. Born in Iran, he came to the U.S. in the late 1970's to attend college, ultimately receiving a Ph.D. He became U.S. citizen in 2000. He married his wife in 2002 in Iran, having met her there in 2001. She became a U.S. citizen in 2006, although Iranian authorities consider persons similarly situated–U.S. citizens born in Iran–to be Iranian citizens. Applicant’s parents, five siblings, parents-in-law, and brother-in-law are all citizens and residents of Iran. His sixth sibling lives in the U.S. as a permanent resident. He speaks to his parents on the telephone about once or twice a month. His parents-in-law have permanent resident status in the U.S. and divide their time between the U.S. and Iran. Applicant owns no foreign assets and is described as being of good character. Iran is a constitutional Islamic republic. The U.S. has not had diplomatic ties with Iran since 1980. Iran is engaging in efforts to acquire weapons of mass destruction. It supports international terrorism, has committed numerous serious human rights violations, and has intervened in the internal affairs of Iraq. In his brief, Applicant argues, inter alia, that the Judge did not consider certain mitigating evidence, for example that Applicant has never in the past been approached by Iranian authorities and that his work is highly beneficial to the U.S. Furthermore, Applicant argues that the Judge gave too much weight to Applicant’s foreign relatives and Iran’s status as country hostile to the U.S. The Board has considered all the arguments contained in Applicant’s brief, evaluating them in light of the record as a whole. A Judge is presumed to have considered all the evidence in the record unless he specifically states otherwise. See, e. g., ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). Although Applicant disagrees with the weight which the Judge assigned to certain pieces of evidence, he has not demonstrated that the Judge’s analysis is arbitrary, capricious, or contrary to law. See, e. g., ISCR Case No. 07-10454 at 2 (App. Bd. August 12, 2008). “[A]napplicant with family members living in a country hostile to the U.S. bears a ‘heavy burden’ in demonstrating that those family members do not pose a security risk.” ISCR Case No. 06-18918 at 2 (App. Bd. May 23, 2008), citing ISCR Case No. 07-00029 at 3 (App. Bd. Dec. 7, 2007). In light of the record as a whole, the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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)). Contrary to Applicant’s assertion, there is nothing in the Judge’s decision to suggest that the Judge adhered to a “blanket” rule that would automatically result in clearance denial for an Applicant with close family members in Iran. The Judge’s decision that “it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 9. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board