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ISCR 08-02715.a1: Guideline B security clearance appeal (2010) · CASE

ISCR Case 08-02715.a1unknown

Case headnote

ISCR Case No. 08-02715.a1

Mar 9, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved a U.S. citizen born to Lebanese parents, with concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The primary issue stemmed from the applicant's father being a retired general in Lebanon, a country identified as having significant terrorist activity.

The Appeal Board reversed an initial favorable security clearance decision. It determined that the applicant had not sufficiently rebutted the government's concerns regarding potential foreign influence. Specifically, the Board cited Disqualifying Conditions AG ¶ 7(a) and AG ¶ 7(c), which address foreign connections that could create a conflict of interest or foreign preference.

While Mitigating Conditions AG ¶ 8(a) and AG ¶ 8(c) were considered, they were ultimately not applied. The Board found that the applicant's communications with her father were neither casual nor infrequent, thus failing to mitigate the risk of foreign influence. Consequently, no security clearance was granted.

Conditions referenced

Disqualifying

AG ¶ 7(a)raisedForeign Influence
AG ¶ 7(c)raisedForeign Influence

Mitigating

AG ¶ 8(a)rejectedForeign Influence Mitigating ConditionThe applicant's ties to her father in Lebanon do not outweigh the security concerns.
AG ¶ 8(c)rejectedForeign Influence Mitigating ConditionThe applicant's communications with her father are not infrequent enough to mitigate the risk.

Key rule quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

Procedural posture

SOR issuedNov 6, 2008
Answer filed—
Hearing heldNov 24, 2009
Decision dateMar 9, 2010Appeal Board decision reversed the favorable ruling.

Cite for

Reversal of Favorable Security Clearance Due to Foreign Influence Concerns
Impact of Familial Ties in Foreign Influence Cases
Presumption Against Granting Security Clearance When Concerns Are Raised

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

Reversed

The appeal involved a security clearance decision where the Administrative Judge initially granted the Applicant a clearance. The Department Counsel appealed, arguing that the Judge erred in her application of mitigating conditions related to foreign influence. The Appeal Board found merit in the government's argument and reversed the favorable decision.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Error sustained
Department Counsel argued that the Judge erred in her application of Foreign Influence Mitigating Conditions 8(a) and 8(c), claiming that the Applicant's relationship with her father raised security concerns that were not adequately mitigated.

Why the Board ruled this way

The Board found that the Judge's favorable decision was not sustainable based on the evidence presented, particularly regarding the Applicant's relationship with her father and the implications of foreign influence.

Ignored material evidence

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
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; Guideline C DIGEST: Applicant’s father is a retired General resident in Lebanon, a country in which a terrorist organization (Hezbollah) operates and holds seats in the national assembly. Lebanon is heavily influenced by Syria . Favorable decision reversed. CASENO: 08-02715.a1 DATE: 03/09/2010 DATE: March 9, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-02715

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Nichole Noel, Esq., Department Counsel FOR APPLICANT Robert R. Bohn, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 6, 2008, DOHA issued a statement of reasons (SOR) advising Applicant The Judge’s favorable findings under Guideline C are not at issue in this appeal. 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 November 24, 2009, after the hearing, Administrative Judge Darlene D. Lokey Anderson granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s favorable decision under Guideline B is erroneous. Finding error, we reverse. Facts The Judge made the following pertinent findings of fact: Applicant was born in the U.S. to Lebanese parents, thereby acquiring Lebanese citizenship. Shortly after her birth, her family moved to Lebanon, where Applicant grew up. She returned to the U.S. in the mid-2000sto attend college and has lived in this country ever since. Applicant’s father is a citizen and resident of Lebanon. He is a retired general in the Lebanese military, living on a pension. He attends luncheons with other retired generals and has an acquaintance who is highly placed in the Lebanese government. Applicant’s father holds resident alien status in the U.S. and is seeking to become a citizen. When he is not visiting in this country, Applicant speaks with him approximately once every other week by telephone. Applicant has a sister who is a citizen of Lebanon residing in the U.S. Her brother is a dual citizen of Lebanon and the U.S., who also resides in the U.S. Lebanese policy is heavily influenced by Syria, which is a state sponsor of terrorism. Lebanese instability enables foreign terrorist organizations to operate within its borders. The most prominent such organization is Hezbollah, which the U.S. has designated as a “Foreign Terrorist Organization.” The Lebanese government recognizes Hezbollah as a legitimate political party. It maintains offices in Beirut and elsewhere in Lebanon and is closely allied with Iran. Hezbollah attempts to obtain U.S. technology.

DISCUSSION

A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the 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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Directive ¶ 8(a): “the nature of the relationships with the foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S[.]” Directive ¶ 8(c): “contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation[.]” Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues on appeal that the Judge erred in her application of two Foreign Influence Mitigating Conditions (FIMC), 8(a) and 8(c). The essence of Department Counsel’s argument is that Applicant’s relationship with her father raises security concerns which Applicant’s evidence failed to mitigate. This argument is persuasive. The Board notes the Judge’s findings that Applicant’s father is a retired general; that he is a citizen and resident of Lebanon; that he associates frequently with other retired officers, including a high-ranking official in the Lebanese government; that Applicant speaks with her father by telephone on a bi-weekly basis; that Lebanese policy is heavily influenced by Syria, which is a state sponsor of terrorism; that Hezbollah, a terrorist organization, operates within Lebanon with considerable freedom; and that Hezbollah holds seats in the Lebanese National Assembly. We also note record evidence that Hezbollah is closely allied with Iran, taking its ideological inspiration from the Iranian revolution. U.S. State Department Country Reports on Terrorism, April 30, 2009, at 3. Without suggesting that Applicant’s father has engaged in improper activity, it is nevertheless foreseeable that his presence in Lebanon could be a means through which Applicant could be coerced into compromising classified activity. Applicant’s evidence does not demonstrate that her ties to the U.S. so outweigh her ties to her father that she would not likely be placed in a position of choosing U.S. interests over his. See ISCR Case No. 05-11292 at 4 (App. Bd. Apr. 12, 2007) (“The presence of immediate family members in a country which a hostile foreign power like Syria is attempting to destabilize, and in which terrorist groups operate with a substantial degree of autonomy, poses a real concern in the adjudication of [an applicant’s] request for a security clearance”). By the same token, the evidence does not support a conclusion that Applicant’s communications with her father are casual and infrequent. Indeed, there is a rebuttable presumption that communications with close family members are not causal by nature. See ISCR Case No. 07- 13696 at 4 (App. Bd. Feb. 9, 2009). The Judge’s findings and the record evidence concerning Applicant’s communications with her father are not sufficient to rebut that presumption. In light of the above, we conclude that the Judge’s favorable decision is not sustainable on this record, viewed in light of the Egan standard.

ORDER

The Judge’s favorable security clearance decision is REVERSED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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