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ISCR Case 07-10635.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date2/17/2009
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 07-10635.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Jean E. Smallin, James E. Moody
Government Counsel: James B. Norman, James F. Duffy
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline CForeign Preference · For Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 07-10635.a1denied

Case Headnote

ISCR Case No. 07-10635.a1

Feb 17, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, originally from Nigeria, was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline C (Foreign Preference), and Guideline F (Financial Considerations). The denial under Guideline B stemmed from the applicant's family connections in Nigeria, including a Nigerian spouse and potential inheritance, which were deemed to raise significant security concerns.

Additionally, the applicant's financial difficulties and delinquent debts were significant disqualifying factors under Guideline F. The judge specifically cited Disqualifying Conditions B2 and F3 in the decision.

Ultimately, the judge determined that the applicant's ties to Nigeria and unmitigated financial issues presented an unacceptable security risk, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

B2raisedForeign Influence
F3raisedFinancial Considerations

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 issuedApr 16, 2008
Answer filed—
Hearing heldNov 12, 2008
Decision dateFeb 17, 2009

Cite For

Insufficient Mitigation of Foreign Influence Under Guideline B
Impact of Financial Difficulties on Security Clearance Under Guideline F
Affirmation of Adverse Decisions Based on Substantial Evidence

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 due to security concerns related to foreign influence and financial considerations. 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 denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline CGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's factual findings were not supported by substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision under Guideline B was arbitrary, capricious, or contrary to law.
Mitigation wrongly applied / not applied — raised by the Government (Department Counsel)Not reached
Department Counsel raised the issue of whether the Judge erred in his application of the Guideline F mitigating conditions.

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 decision and concluded that the findings of fact were supported by substantial evidence. The Judge's conclusion regarding the security concerns raised under Guideline B was sustainable and consistent with national security interests.

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
Jean E. Smallin
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 C; Guideline B; Guideline F DIGEST: Applicant’s evidence not sufficient to mitigate Guideline B security concerns arising from his connections to Nigeria. In light of this holding, the Government’s cross-appeal is moot. Adverse decision affirmed. CASENO: 07-10635.a1 DATE: 02/17/2009 DATE: February 17, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10635

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel James F. Duffy, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 16, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference), Guideline B (Foreign Influence), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 12, 2008, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s The Judge’s favorable decision under Guideline C is not at issue in this appeal. Government Exhibit 2, Security Clearance Application, at 28-29, lists three individuals identified as stepbrothers of Applicant, who are citizens of Nigeria. request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel filed a timely cross-appeal pursuant to Directive ¶ E3.1.28. Applicant raised the following issues on appeal: whether certain of the Judge’s factual findings were supported by substantial record evidence; and whether the Judge’s adverse security clearance decision under Guideline B was arbitrary, capricious, or contrary to law. Department Counsel raised the following issue on cross-appeal: whether the Judge erred in his application of the Guideline F mitigating conditions. Finding no harmful error, we affirm. The Judge made the following pertinent findings of fact: Applicant was born in Nigeria, immigrating to the U.S. in the late 1980s. He became a U.S. citizen in the early 2000s. He held a Nigerian passport, issued after he became a U.S. citizen, but has since turned it over to the facility security officer. Applicant’s wife is a citizen of Nigeria. Born there in the early 1960s, she received an advanced degree from a U.S. university. She applied for U.S. citizenship one day before the hearing in Applicant’s case. Applicant’s father and stepmother are resident citizens of Nigeria. Applicant is close to his father, speaking to him by phone twice a month. His father owns some real estate in Nigeria, which Applicant “has an option to inherit.” Decision at 4. Applicant also has a brother, who is a resident and citizen of Nigeria, a stepbrother who is a Nigerian citizen but a resident alien of the U.S., and two sisters, who are naturalized U.S. citizens. His in-laws are also residents and citizens of Nigeria. Applicant’s wife communicates with them more frequently than Applicant does with his father. Applicant traveled to Nigeria five or six times in the six years preceding the close of the record. Nigeria has a poor human rights record. Many of its regions are subject to lawlessness, characterized by armed conflict among various religious, political, and ethnic factions. In the Niger Delta region, for example, kidnaping and other disruptions pose a danger to U.S. citizens traveling there. Applicant has experienced some financial difficulties since 2002. He was unemployed from May 2002 until June 2004, during which time he relied for financial support upon a severance package from his job, upon his savings, upon unemployment compensation, and upon money received from his church. He filed twice for Chapter 13 bankruptcy protection, but the petitions were dismissed because Applicant could not make the payments. The SOR lists several delinquent debts for Applicant. The Judge concluded, after comparing the SOR with evidence supplied by both the Government and by Applicant, that only two were actually delinquent at the close of the record: a $15,010.00 judgement in favor of a creditor and a credit card debt of $8,927.00. The remaining debts were either paid, disputed, and/or dropped from Applicant’s credit report. Applicant challenged some of the Judge’s findings of fact, for example a statement that Applicant’s wife did not apply for U.S. citizenship at her first opportunity due to lack of interest. Decision at 3. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Even if the Judge’s findings contain error, such error is harmless in that it would not change the outcome of the case. See ISCR Case No. 06-23112 at 2 (App. Bd. Dec. 31, 2007). The Judge concluded that the nature and extent of Applicant’s family connections to Nigeria raised security concerns under Guideline B. In evaluating Applicant’s case for mitigation, he paid attention to the closeness of Applicant’s relations with Nigerian family members, including his spouse; the frequency of his contact with those living in Nigeria; and the possibility that Applicant could inherit property in Nigeria. Although the Judge gave due consideration to the matters presented by Applicant, including evidence as to the high quality of his work performance and his character, his conclusion that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable. Decision at 13. See 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 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). In light of this conclusion, the Board need not address the issue raised by the Government on cross-appeal.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board