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ISCR Case 10-00272.a1 — CASE

ISCR Case 10-00272.a1denied

Case Headnote

ISCR Case No. 10-00272.a1

May 24, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The judge determined that the applicant's mitigating evidence was insufficient to outweigh the disqualifying conditions, specifically citing concerns related to the applicant's mother-in-law.

The primary disqualifying condition under Guideline B was the applicant's mother-in-law, an Iranian citizen, who resides with the applicant for part of the year. While mitigating conditions were presented, the judge found them inadequate to overcome the foreign influence concerns raised by this circumstance.

The denial was subsequently affirmed on appeal. The Board concluded that the judge's reasoning was reasonable and aligned with national security interests, upholding the decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 20rejectedMitigating ConditionsThe judge reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns.

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMay 26, 2010
Answer filed—
Hearing heldMar 11, 2011
Decision dateMay 24, 2011

Cite For

Weighing of Mitigating Evidence Under Guideline B
Foreign Influence Concerns Due to Family Ties
Standard for Granting Security Clearance Consistent with 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 a denial of a security clearance based on foreign influence and preference concerns. The applicant argued that the Judge misweighed evidence in mitigation and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowHenry Lazzaro — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge properly weighed the evidence and articulated a satisfactory explanation for the decision, maintaining a rational connection between the facts and the conclusion reached.

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 Y. Ra’anan — Chair
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 B; Guideline C DIGEST: Applicant failed to demonstrate that the Judge gave too much weight to the disqualifying circumstances while failing to consider, or mis-weighing, evidence in mitigation. Hearing Office decisions in other cases are binding neither on other Hearing Office Judges or on the Appeal Board. Adverse decision affirmed. CASE NO: 10-00272.a1 DATE: 05/24/2011 DATE: May 24, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-00272

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 26, 2010, 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 March 11, 2011, after the hearing, Administrative Judge Henry Lazzaro denied Applicant’s request for a security clearance. Applicant 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

FOOTNOTES

1 In this case the Judge reached an adverse conclusion because Applicant’s mother-in-law, an Iranian citizen, resides with Applicant part of the year and in Iran the other part of the year. decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge gave too much weight to the disqualifying circumstances under Guideline B and either did not consider or did not give adequate weight to his evidence of mitigation.1 His argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to mitigate those concerns. 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, or vice versa. A party’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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). In support of his appeal, Applicant cites to other Hearing Office decisions which he believes are similar to his case and in which the Judge granted the applicant a clearance. While Hearing Office decisions in other cases may be cited as persuasive authority, those cases are not binding legal precedent which a Hearing Office Judge must follow in another situation. Applicant’s reliance on other Hearing Office decisions does not demonstrate that the Judge erred in this case. See, e.g., ISCR Case No. 09-08417 at 2 (App. Bd. Apr. 4, 2011). A review of the Judge’s decision indicates that he weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. Decision at 6-8. He found in favor of Applicant under Guideline C and with respect to several of the SOR factual allegations under Guideline B. However, he reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. Id. 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 his 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, 158 (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). Accordingly, the Judge’s ultimate unfavorable security clearance decision is sustainable. Order The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board