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ISCR Case 08-03798.a1 — CASE

ISCR Case 08-03798.a1denied

Case Headnote

ISCR Case No. 08-03798.a1

Jan 21, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen of Iranian descent was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated concerns regarding family ties in Iran. The applicant had a history of holding a security clearance, but the appeal board affirmed the denial, citing the risks associated with familial connections in a country hostile to U.S. interests.

The applicant failed to mitigate security concerns stemming from his relatives in Iran. Additionally, the applicant did not substantiate claims that the judge was biased against him due to his Middle Eastern heritage.

The board also clarified that prior decisions to grant a clearance do not undermine a subsequent denial. Ultimately, the security clearance was DENIED.

Conditions Referenced

Disqualifying

AG B2raisedForeign Influence

Mitigating

AG B3rejectedContact with Family MembersThe applicant's affection and concern for his siblings were seen as potential means of foreign coercion.

Key Rule Quoted

“The government is not estopped from making an adverse clearance decision when there were prior favorable adjudications.”
— ISCR Case No. 07-17383 at 2 (App. Bd. Feb. 12, 2009)

Procedural Posture

SOR issuedMar 24, 2009
Answer filed—
Hearing heldSep 22, 2009
Decision dateJan 21, 2010

Cite For

Security Concerns Related to Family Ties Under Guideline B
Rebuttable Presumption of Judicial Impartiality
Government's Ability to Make Adverse Decisions Despite Prior Favorable Adjudications

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns related to his relatives in Iran. The applicant argued that the Judge was biased and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.
Judge bias or partiality — raised by the applicantRejected
Applicant claimed that the Judge was biased against him due to his Middle Eastern heritage.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge's conclusions were supported by substantial evidence and articulated a rational connection between the facts and the decision made.

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
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: Applicant failed to mitigate security concerns arising from his relatives in Iran. He also failed to demonstrate that the Judge was biased against him due to his Middle Eastern heritage. Prior decisions to grant a clearance do not undermine a subsequent denial. Adverse decision affirmed CASENO: 08-03798.a1 DATE: 01/21/2010 DATE: January 21, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03798

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 March 24, 2009, 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 September 22, 2009, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge was biased against him due to his Iranian origin and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant was born in Iran. He served in the Iranian Navy for three months. Subsequently he immigrated to the U.S. to attend college. He holds a Master’s degree in electrical engineering and is a systems engineer for a Defense contractor. He became a U.S. citizen in the early 1990sand has held a security clearance since the late 1990s. He is married to a U.S.-born citizen and has two children, both of whom were born in the U.S. Applicant has five siblings who are citizens of Iran. Three of them are also residents of Iran. He communicates with each of his family members one to three times a year. Applicant enjoys an excellent reputation for professionalism and job performance. Iran is engaged in efforts to obtain weapons of mass destruction, supports international terrorism, and has a poor human rights record. It has no diplomatic relations with the U.S. In the Conclusions section of the decision, the Judge noted that Applicant has lived in the U.S. for many years and has long held a security clearance. However, she noted evidence of Applicant’s affection and concern for his siblings and that he maintains regular contact with them. The Judge concluded that these bonds of affection are a means through which Applicant might be subjected to foreign coercion. Accordingly, she concluded that Applicant had not mitigated the security concerns in his case. Regarding the claim of bias, Applicant contends that his record raises no security concerns and that he is being unfairly singled out because of his Middle Eastern heritage. He has provided no support for this contention, other than his disagreement with the Judge’s weighing of the evidence. There is a rebuttable presumption that a Judge is impartial and unbiased and a party seeking to overcome that presumption has a heavy burden on persuasion. See, e.g., ISCR Case No. 07-02253 at 3 (App. Bd. Mar. 28, 2008); ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004). In this case, Applicant has five close relatives who are citizens of Iran, three of whom are also residents of that country, and with whom he communicates by telephone. The Board notes the 2008 Department of State Human Rights Report on Iran, which is included in the Official Notice documents. Among other things, this document demonstrates that, during the year in question, Iranian officials “monitored the social activities of citizens, entered homes and offices, monitored telephone conversations and internet communications and opened mail without court authorization.” The evidence supports a conclusion that Applicant’s relatives are a means through which Applicant might come to the attention of the Iranian authorities. The Board has long held that there is a rational connection between an applicant’s family ties in a country whose interests are adverse to the United States and the risk that the applicant might fail to protect and safeguard classified information. ISCR Case No. 01-26893 (App. Bd. Oct. 16, 2002). Accordingly, we conclude that Applicant has failed to rebut the presumption that the Judge acted impartially. Applicant points out that he has held a security clearance for a number of years without incident. However, prior decisions to grant or retain a clearance do not undermine the legal sufficiency of a Judge’s subsequent adverse decision. “The government is not estopped from making an adverse clearance decision when there were prior favorable adjudications.” ISCR Case No. 07- 17383 at 2 (App. Bd. Feb. 12, 2009), quoting ISCR Case No. 03-04927 at 5 (App. Bd. Mar. 4, 2005). Although Applicant has had no previous security infractions, the government need not wait until an individual mishandles or fails to safeguard classified information before it can make an unfavorable security clearance decision. ISCR Case No. 08-00435 at 3 (App. Bd. Jan. 22, 2009), citing Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied 397 U.S. 1039 (1970). Applicant’s good security record is evidence the Judge was bound to consider; however, it is not enough to demonstrate mitigation as a matter of law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated 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 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 7. “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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. 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