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ISCR Case 07-13073.a1 — CASE

ISCR Case 07-13073.a1denied

Case Headnote

ISCR Case No. 07-13073.a1

Nov 26, 2008· Hon. Jean E. Smallin· appeal

Summary

An Afghan-born applicant was denied a security clearance primarily under Guideline B (Foreign Influence) due to significant national security concerns. The denial stemmed from two key issues.

First, the applicant made two false statements concerning his relationship with an Afghan official. Second, the applicant's father resides in Afghanistan, a country characterized by instability and terrorism. These familial ties raised specific security concerns under Guideline B, Disqualifying Condition B1.

The combination of the applicant's untrue statements and his father's residency in Afghanistan led to the ultimate decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

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 issuedMar 20, 2008
Answer filed—
Hearing heldAug 29, 2008
Decision dateNov 26, 2008

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Impact of False Statements on Security Clearance Eligibility
The Standard for Granting Security Clearances in Relation to National Security Interests

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 concerns under Guideline B related to foreign influence. The applicant argued that the Judge's findings were not supported by substantial evidence and that the Judge misapplied mitigating conditions. The Board affirmed the adverse decision, finding no error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCharles D. Ablard — 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 of fact were not supported by substantial evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in applying the relevant mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's findings of fact were supported by substantial evidence and that the application of mitigating conditions was appropriate. The decision was consistent with national security interests.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appealArbitrary-and-capricious review

Appeal Board panel

Jean E. Smallin
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: Applicant’s father lives in Afghanistan. Applicant made two untrue statements regarding his relationship with an Afghan official. Adverse decision affirmed. CASENO: 07-13073.a1 DATE: 11/26/2008 DATE: November 26, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-13073

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Shirley Reed, Esq., Diana Rugh Johnson, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security See Tr. at 46-7. “Q: Explain the circumstances of how . . . you told [U.S. officials] that he was a relative of yours. A: I was very nervous . . . [the agent] questioned are you a relative of [Afghan official]. I admit myself that I knew him . . . I said yes. But I didn’t change my answer there.” clearance. On March 20, 2008, 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 August 29, 2008, after the hearing, Administrative Judge Charles D. Ablard 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 certain of the Judge’s findings of fact are supported by substantial record evidence and whether the Judge erred in his application of the relevant mitigating conditions. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant was born in Afghanistan and came to the U.S. with his family when he was 18. He has several relatives, including in-laws, living in Afghanistan, and his wife is an Afghan citizen living in the U.S. Applicant’s father is a citizen and resident of Afghanistan, although Applicant has little contact with him. Applicant does not currently hold a security clearance. Applicant made two statements to investigators during the course of his security clearance investigation. These statements, which concerned Applicant’s relationship with a well-known Afghan official, were not true. Afghanistan is an unstable country, much of which is under the control of insurgents opposed to the U.S. “[I]tis a dangerous part of the world where there are human rights abuses and acts of terrorism.” Decision at 4. “Applicant does not have a security clearance but desires one so that he can return to his country of origin and make a contribution to the U.S. national defense by working for the U.S. military as a translator for at least one year.” Id. at 3. The Judge’s material findings of security concern are supported by substantial record evidence, or are reasonable inferences that could be drawn from the evidence, and are sustainable. 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.”); ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 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, both as regards the mitigating conditions and the whole-person factors. 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)). The Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 7. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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