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ISCR Case 10-01846.a1 — CASE

ISCR Case 10-01846.a1denied

Case Headnote

ISCR Case No. 10-01846.a1

Sep 13, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A linguist and cultural advisor, born in Afghanistan, was denied a U.S. security clearance under Guideline B (Foreign Influence). The denial stemmed from significant concerns regarding his ties to family remaining in Afghanistan. Specifically, disqualifying conditions AG B2 and AG B1 were raised, indicating potential foreign influence and divided loyalties.

The judge found the applicant's statements about contact with his family to be inconsistent, which negatively impacted his credibility. While mitigating conditions AG B7 and AG B6 were considered, they were ultimately not sufficient to overcome the security concerns.

The applicant did not provide enough evidence to mitigate the foreign influence risks, and the appeal board affirmed the judge's findings. Consequently, the applicant did not meet the burden of persuasion for mitigation, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG B2raisedForeign Contacts and Interests
AG B1raisedForeign Influence

Mitigating

AG B7rejectedNo Foreign InfluenceThe applicant's connections to the U.S. were insufficient to mitigate foreign influence concerns.
AG B6rejectedClearance Granted in the PastThe applicant's prior clearance did not mitigate current 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 issuedSep 7, 2010
Answer filed—
Hearing heldJun 16, 2011
Decision dateSep 13, 2011

Cite For

Foreign Influence Concerns Under Guideline B
Inconsistencies in Applicant's Statements Affecting Credibility
Burden of Persuasion for Mitigation Not Met

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 from an adverse security clearance decision based on foreign influence concerns under Guideline B. The applicant challenged the Judge's findings, credibility determinations, and application of mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Erroneous finding of fact — raised by the applicantError found, but harmless
The Judge made typographical errors regarding the year of Applicant's marriage and the residency of his family in a third country.
Credibility determination — raised by the applicantRejected
The Judge's credibility determination regarding Applicant's inconsistent statements about family contact was challenged.
Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge's application of the pertinent mitigating conditions was claimed to be in error.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision was claimed to be arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Judge's findings were supported by substantial evidence, and the adverse decision was not arbitrary or capricious. The errors identified were deemed harmless and did not affect the outcome.

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
William S. Fields
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: The Judge’s conclusion that Applicant had made inconsistent statements was supported by the record evidence. The Judge’s essential findings are supported by substantial record evidence. Adverse decision affirmed. CASE NO: 10-01846.a1 DATE: 09/13/2011 DATE: September 13, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-01846

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 September 7, 2010, 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 June 16, 2011, after the hearing, Administrative Judge Mark Harvey 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 certain of the Judge’s findings of fact were supported by substantial record evidence; whether the Judge’s credibility determination was in error; whether the Judge’s application of the pertinent mitigating conditions was in error; and

FOOTNOTES

1 See ISCR Case No. 05-03250 at 4-5 (App. Bd. Apr. 6, 2007) (In Foreign Influence cases, the presence of terrorist activity is an important consideration that provides context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case). whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a linguist and cultural advisor employed by a Defense contractor. He was born in Afghanistan. Applicant is married with three children. His spouse and children were all born in Afghanistan. Applicant attended college in Afghanistan, studying law and political science. He also attended a U.S. university for one year in the late 1960s. Returning to Afghanistan, he served for a year in the Afghan military and then worked for the Afghan government for about 11 years. After a period of unemployment he took another position with the Afghan government. The Judge characterized this job as “particularly important during a 3-year-period in the 1980sand during a 2-year-period in the 1990s.” Decision at 4. In the mid-1990s, Applicant entered the U.S. on a tourist visa. After receiving threatening communications from sources in Afghanistan, Applicant applied for asylum in the U.S. Subsequently, Applicant, his spouse, and two of his children were granted asylum. The application of the remaining child was delayed for over two years. “Applicant’s two daughters, his wife and his son left Asia and lived in [a third country] until they moved to the United States.” Id. Applicant’s family returned to Afghanistan in early 2000. A few years later Applicant became a naturalized U.S. citizen. Applicant contended at the hearing that he has not seen his family since their return to Afghanistan, even though he was deployed to that country for several years during the mid to late 2000s. Applicant testified that he had not spoken with his wife in over a year. Applicant has made a substantial income while serving as a linguist in Afghanistan, which is virtually tax-free. He denied that he gave his family more than $200 to $300 every couple of months. However, “he could not or would not provide a detailed explanation of what he did with his income.” Id. at 6. Applicant enjoys an excellent reputation for the quality of his duty performance, his loyalty, and his trustworthiness. Afghanistan is an Islamic Republic with a democratically elected president. Terrorist organizations within Afghanistan target U.S. and Afghan interests, and the risk of terrorist activity is extremely high. Such activity includes suicide operations, bombings, assassinations, car-jacking, assaults, and hostage taking. In the Analysis, the Judge stated that “[i]nternational terrorist groups are known to conduct intelligence activities as effectively as capable state intelligence services, and Afghanistan has an enormous problem with terrorism.”1 Id. at 11. He concluded that Applicant’s Afghani family members and his prior service to the Afghan Government raised security concerns and that Applicant had not met his burden of persuasion as to mitigation. Among other things, the Judge noted inconsistent statements by Applicant concerning the extent of his contacts with his family. All in all, the Judge concluded that Applicant’s ties to his Afghan family: are very significant and greater than his connections to the United States. His Afghan Government employment (more than 25 years) is more significant than his employment related to the U.S. Government (four or five years). He does not have any immediate family living in the United States. His connections to the United States taken together are insufficient to fully overcome the foreign influence security concerns under Guideline B. Id. at 13. Applicant has challenged the Judge’s credibility determination, specifically that he had made inconsistent statements about his contact with his family. However, after examining the record, we conclude that the challenged statements by the Judge constitute a reasonable interpretation of the evidence. For example, the Judge noted Applicant’s testimony that his family had moved to Afghanistan in 2000, remaining in that country thereafter. This was not consistent with an answer in his 2004 security clearance application (GE 8) in which he claimed that his wife was living with him in the U.S. at that time. Applicant has not provided a reason to disturb the Judge’s credibility determination. Applicant contends that the Judge erred in some of his findings of fact. He points out that the Judge had found that Applicant married in 1955. However, while this is an error, it appears to be merely typographical. He also stated that his wife and children had never lived in the third country prior to entering the U.S., as the Judge had found. This also appears to be an error, Applicant having testified only that his niece had lived in that country. However, these errors are harmless, in that they do not appear to have affected the outcome of the case. Viewed in light of the record as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 09-05399 at 2-3 (App. Bd. Jan. 11, 2011). The record supports a conclusion 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 adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Order The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board