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ISCR Case 07-15558.a1 — CASE

ISCR Case 07-15558.a1denied

Case Headnote

ISCR Case No. 07-15558.a1

Jan 27, 2009· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, a Sudanese national, was denied a clearance primarily due to concerns under Guideline B (Foreign Influence), with additional considerations under Guideline C (Foreign Preference) and Guideline E (Personal Conduct). The denial was based on disqualifying condition B2.

While mitigating conditions C1 and E2 were applied, they were deemed insufficient to overcome the government's security concerns. The applicant's foreign ties raised legitimate security issues that were not adequately addressed.

The appeal board affirmed the denial, concluding that the applicant failed to meet the burden of persuasion to rebut the presumption of the judge's impartiality. The judge's reasoning for finding the mitigating evidence insufficient to overcome the security concerns under Guideline B was deemed reasonable, leading to the final denial of the security clearance.

Conditions Referenced

Disqualifying

B2raisedForeign Influence

Mitigating

C1appliedForeign Preference
E2appliedPersonal Conduct

Key Rule Quoted

“There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to rebut that presumption has a heavy burden of persuasion.”
— ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004)

Procedural Posture

SOR issuedApr 30, 2008
Answer filed—
Hearing heldNov 20, 2008
Decision dateJan 27, 2009

Cite For

Rebuttable Presumption of Judicial Impartiality in Security Clearance Cases
Legitimate Security Concerns Regarding Foreign Ties Under Guideline B
Burden of Persuasion on the Applicant to Establish Mitigation After Government Raises Security Concerns

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 a denial of a security clearance based on security concerns under Guidelines B, C, and E. The applicant argued that the Judge's decision was arbitrary and capricious due to his background and family ties in Sudan. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline CGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision under Guideline B was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for her decision, including a rational connection between the facts found and the choice made. The Judge's unfavorable security clearance decision under Guideline B was sustainable.

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
William S. Fields

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 DIGEST: There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to rebut that presumption has a heavy burden of persuasion. . The issue is not whether an applicant personally believes the Judge was unfair, but whether the record contains any indication the Judge acted in a manner that would lead a reasonable person to question her fairness or impartiality. Applicant has not met this heavy burden. The Directive presumes there is a nexus or rational connection between proven circumstances under any of its Guidelines and an applicant’s security eligibility. Direct or objective evidence of nexus is not required. DOHA has adjudicated foreign preference cases involving applicants associated with or having family ties to a wide variety of countries. Foreign ties such as the ones maintained by Applicant are of legitimate concern to the Department in assessing risks to the nation’s security. Adverse decision affirmed . CASENO: 07-15558.a1 DATE: 01/27/2009 DATE: January 27, 2009 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-15558

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 30, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 20, 2008, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision under Guideline B is arbitrary, capricious or contrary to law. Applicant argues that it was unfair of the Judge to deny him a clearance just because he was originally from Sudan and had family members living in that country. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to rebut that presumption has a heavy burden of persuasion. See, e.g., ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). The issue is not whether an applicant personally believes the Judge was unfair, but whether the record contains any indication the Judge acted in a manner that would lead a reasonable person to question her fairness or impartiality. See, e.g., ISCR Case No. 06-09462 at 2 (App. Bd. Jul. 19, 2007). Lack of partiality is not demonstrated merely because the Judge made adverse findings or reached unfavorable conclusions. See, e.g., ISCR Case No. 06-09462 at 2 (App. Bd. Jul. 19, 2007). Moreover, even if an appealing party demonstrates error by the Judge, proof of such error, standing alone, does not demonstrate the Judge was biased or prejudiced. See, e.g., ISCR Case No. 04-03834 at 2 (App. Bd. Jul. 2, 2007). Applicant has not met this heavy burden of persuasion, in that he fails to identify anything in the record below that indicates or suggests a basis for a reasonable person to question the fairness, impartiality, or professionalism of the Judge. See, e.g., ISCR Case No. 03-00740 at 2 (App. Bd. Jun. 6, 2006). The Directive presumes there is a nexus or rational connection between proven circumstances under any of its Guidelines and an applicant’s security eligibility. See, e.g., ISCR Case No. 03- 22643 at 7 (App. Bd. Jun. 24, 2005). Direct or objective evidence of nexus is not required. See, e.g., ISCR Case No. 03-18218 at 3 (App. Bd. Oct. 7, 2005). DOHA has adjudicated foreign preference cases involving applicants associated with or having family ties to a wide variety of countries. Foreign ties such as the ones maintained by Applicant are of legitimate concern to the Department in assessing risks to the nation’s security. See, e.g., ISCR Case No. 01-04713 at 3 (App. Bd. Mar. 27, 2003). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. She found in favor of Applicant as to Guidelines C and E. However, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns under Guideline B. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her decision, “including a ‘rational connection between the facts found and the choice made.’” 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). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline B is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Sigmned: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed; William S. Fields William S. Fields Administrative Judge Member, Appeal Board