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ISCR Case 07-14435.a1 — CASE

ISCR Case 07-14435.a1denied

Case Headnote

ISCR Case No. 07-14435.a1

Oct 24, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A naturalized U.S. citizen and software engineer was denied a security clearance due to concerns under Guideline B (Foreign Influence). The applicant's parents and a sibling reside in Iran and are citizens of that country. She has traveled to Iran multiple times to visit family and intends to continue these visits in the future.

While the applicant received a favorable ruling under Guideline C (Foreign Preference), the judge determined that her strong familial connections in Iran and her intent to travel there did not sufficiently mitigate the security risks associated with foreign influence.

Specifically, the judge found that the applicant failed to overcome the disqualifying conditions related to foreign influence, despite the application of mitigating conditions. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B2rejectedMitigating ConditionsThe judge noted the applicant's strong attachment to her family but found it insufficient to mitigate the security concerns.

Key Rule Quoted

“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 12, 2008
Answer filed—
Hearing heldJul 24, 2008
Decision dateOct 24, 2008

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Insufficient Mitigation of Familial Ties in Foreign Countries
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 for a security clearance who was denied due to security concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant argued that the Judge misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no error in the application of the law or the facts.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowHenry Lazzaro — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in the application of the pertinent mitigating conditions.

Why the Board ruled this way

The Board found no error in the Judge's application of mitigating conditions and affirmed the adverse security clearance decision based on the rational connection between the facts and the decision.

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

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: Applicant was born and raised in Iran. She met her husband in Iran. Her parents and one sibling are citizens and residents of Iran. She has traveled to Iran several times in this decade and intends to travel there in the future. The Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision. Adverse decision affirmed. CASENO: 07-14435.a1 DATE: 10/24/2008 DATE: October 24, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-14435

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge’s favorable decision 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 March 12, 2008, 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 July 24, 2008, 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 raised the following issue on appeal: whether the Judge’s application of the pertinent mitigating conditions was error. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a software engineer for a defense contractor. Born and raised in Iran, she attended college there, graduating in the 1990s. She met her husband in Iran. He was born in the U.S. of Iranian parents. Applicant, her husband, and his parents live in the U.S. Applicant became a naturalized U.S. citizen in the 2000s. Her parents and her one sibling are citizens and residents of Iran. Her parents have acquired resident alien status and intend to immigrate to the U.S. once they wind up their personal affairs. Applicant speaks with her parents and her sister by telephone twice a week or more. Applicant visited Iran several times during the 2000s. She has used an Iranian passport for some of the trips. She intends to visit Iran in the future, to attend her sister’s wedding. She will also visit Iran should her family there experience health problems, etc. Neither she nor her husband own property in Iran. Iran is “the most active state sponsor of terrorism.” Decision at 3. It is attempting to obtain nuclear weapons and other weapons of mass destruction. It supports violent opposition to the Middle East peace process and has a “dismal human rights record.” Id. American citizens visiting Iran are subject to harassment. “Americans of Iranian origin should consider the risk of being targeted by authorities before planning travel” there. In the Analysis section of his decision, the Judge stated that Applicant’s case raised security concerns under Guideline B. In evaluating possible mitigating conditions, the Judge noted Applicant’s “very strong feelings of attachment . . . for her parents and sister, the comparatively short time she has been a U.S. citizen and employed by [a] defense contractor, her expressed intent to return to Iran for her sister’s wedding and any other family matters that might arise, and the nature of the Iranian Government and its relationship with the U.S.” Id. at 5-6. He concluded that Applicant had failed to mitigate the security concerns in her case. 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)). The Judge’s decision that “it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant” is sustainable on this record. Decision at 7. 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’”). Accordingly, the Judge’s adverse security clearance decision is not arbitrary, capricious, or contrary to law.

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