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ISCR Case 07-13209.a1 — CASE

ISCR Case 07-13209.a1denied

Case Headnote

ISCR Case No. 07-13209.a1

Oct 6, 2008· Hon. Jean E. Smallin· appeal

Summary

A mechanical engineer was denied a security clearance under Guideline B (Foreign Influence) due to significant family ties in Iran, a country identified as hostile to the United States. The applicant had multiple family members who are citizens or residents of Iran, which raised concerns about potential foreign influence.

The denial was based on the applicant's inability to demonstrate that these family connections did not pose a security risk. The judge found that the security concerns were supported by substantial evidence, specifically citing Disqualifying Conditions AG B2 and AG B7(a).

The appeal board subsequently affirmed the denial, concluding that there was no harmful error in the judge's initial findings. The outcome of the security clearance decision was DENIED.

Conditions Referenced

Disqualifying

AG B2raisedForeign Influence
AG B7(a)raisedContact with Foreign Family Members

Key Rule Quoted

“An 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. 07-00029 at 3 (App. Bd. Dec. 7, 2007)

Procedural Posture

SOR issuedFeb 8, 2008
Answer filed—
Hearing heldJun 25, 2008
Decision dateOct 6, 2008

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Family Ties in Hostile Countries on Security Clearance Decisions
Burden of Proof on Applicants with Foreign Family Connections

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 family members residing in Iran. The applicant raised several issues on appeal regarding the Judge's findings and analyses. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene Lokey-Anderson — 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 the Judge erred in stating that Applicant still has contact with his current wife and stepchild.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge erred in failing to address heightened risk under Guideline B Disqualifying Condition 7(a).
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant claimed the Judge erred in her application of the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant argued that the Judge erred in her whole person analysis.

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, affirming that the material findings of security concern were supported by substantial evidence and that the Judge's conclusions were not arbitrary or capricious.

Standard of review applied

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

Appeal Board panel

Michael D. Hipple
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 B DIGEST: Several members of Applicant’s family citizens of Iran and five of them reside in Iran. The Judge’s material findings of security concern are supported by substantial record evidence. Adverse decision affirmed CASENO: 07-13209.a1 DATE: 10/06/2008 DATE: October 6, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-13209

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jennifer I. Goldstein, Esq., Department Counsel FOR APPLICANT Aleksander Lamvol, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 8, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of Directive ¶ E2.7(a): “contact with a foreign family member . . . who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion[.]” 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 June 25, 2008, after the hearing, Administrative Judge Darlene Lokey- Anderson 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 factual findings were supported by substantial record evidence; whether the Judge erred in failing to address heightened risk under Guideline B Disqualifying Condition 7(a); whether the Judge erred in her application of the mitigating conditions; and whether the Judge erred in her whole person analysis. Finding no harmful error, we affirm. The Judge made the following sustainable findings of fact: Applicant was born in Iran. He came to the U.S. in the mid-1970sto attend college. He married a U.S. citizen in the mid-1980s, and they had two children, who are also native-born U.S. citizens. Applicant is a mechanical engineer for a defense contractor. He has held a security clearance since 1990 with no security violations. In 2003, Applicant married an Iranian woman, who is currently a permanent resident. Applicant sponsored his wife’s child from a prior marriage and her Iranian parents to come to the U.S. Applicant subsequently filed for divorce from his second wife, which action was still pending at the close of the record. Applicant’s wife and stepchild are Iranian citizens. His parents-in-law and brother-in-law are residents and citizens of Iran. Additionally, Applicant’s father and brother are residents and citizens of Iran. Applicant has another brother who, though an Iranian citizen, resides in a European country. He also has a sister who is an Iranian citizen residing in another middle-eastern country. Applicant’s mother is a naturalized U.S. citizen. She divides her time between the U.S. and Iran. At the close of the record, Applicant’s mother was living in Iran caring for Applicant’s ailing father. Applicant maintains telephone or e-mail contact with his parents and siblings about once a month. He has also sent birthday and wedding gifts to his Iranian relatives. Applicant has traveled to Iran on five occasions from the late 1970sthrough the mid-2000s. Each time, he used an Iranian passport, although he has subsequently surrendered it to his company’s security office. Iran has no diplomatic ties with the U.S. It supports international terrorism, commits human rights violations, and is attempting to develop weapons of mass destruction. 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 For example Applicant argued that the Judge erred in stating that Applicant still has contact with his current wife and stepchild. The only record evidence explicitly on point is to the effect that he does not have contact with these persons. See, e. g., Answers to Statement of Reasons; Tr. at 50. However, even if the Judge had made a finding on this matter consistent with this evidence, such a finding would not likely have resulted in a favorable security clearance decision when viewed in light of the record as a whole. contrary evidence in the same record.”) To the extent that the Judge’s findings contain error, the Board concludes that such error is harmless. See ISCR Case No. 06-23112 at 2 (App. Bd. Dec. 31, 2007). Applicant states that the Judge erred by not analyzing the heightened risk clause of Disqualifying Condition 7(a). Given that the relatives are in Iran, a hostile country with a “dismal human rights record,” the Judge’s failure to discuss this issue is at most harmless error. In light of the record as a whole, the Judge has drawn a rational connection between the facts found and her 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 the national interests to grant or continue a security clearance for the Applicant” is sustainable on this record. Decision at 8. 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’”). See also 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) (“[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”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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