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ISCR 10-04144.a1: Guideline B security clearance appeal, denied (2013) · CASE

ISCR Case 10-04144.a1denied

Case headnote

ISCR Case No. 10-04144.a1

Jan 29, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, originally from Iran, was denied a security clearance due to concerns under Guideline E (Personal Conduct), despite favorable findings under Guidelines B (Foreign Influence) and C (Foreign Preference). The denial stemmed from the applicant's failure to disclose his active Iranian passport on multiple security clearance applications and during interviews.

The applicant provided inconsistent statements regarding the use and status of this passport, which raised significant questions about his judgment and reliability. His explanations for these omissions were deemed insufficient and unconvincing by the judge.

Ultimately, the appeal board affirmed the denial, concluding that the applicant had not adequately explained his failure to acknowledge his active Iranian passport. The decision highlighted the applicant's inconsistent statements and lack of candor as the primary reasons for the denial.

Conditions referenced

Disqualifying

E2.A5.1raisedPersonal Conduct

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 issuedApr 23, 2012
Answer filed—
Hearing heldNov 8, 2012
Decision dateJan 29, 2013

Cite for

Serious Questions About Judgment Under Guideline E Due to Inconsistent Statements
Affirmation of Denial Based on Failure to Disclose Foreign Ties
Importance of Clear and Consistent Disclosures in Security Clearance Applications

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 concerns under Guidelines B, C, and E. The Applicant contended that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and a satisfactory explanation for the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry denied the clearance

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 decision 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 its holding. The Applicant's failure to acknowledge his possession of an active passport raised serious questions about his judgment.

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)
Jeffrey D. Billett
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; Guideline E DIGEST: The Judge concluded that Applicant’s failure to acknowledge his possession of an active passport in three security clearance applications and in a subject interview raises serious questions about his judgment that Applicant has failed to overcome. Viewed in light of the record as a whole, the Decision articulates a satisfactory explanation for its ultimate holding. Adverse decision affirmed. CASE NO: 10-04144.a1 DATE: 01/29/2013 DATE: January 29, 2013 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-04144

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 23, 2012, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), Guideline C (Foreign Preference) and Guideline E (Personal Conduct) of Department of Defense

FOOTNOTES

1 These SCAs were completed in 2001, 2002, and 2008 respectively. Government Exhibits (GE) 1, 2, and 3. Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 8, 2012, after the hearing, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines B and C are not at issue in this appeal. Consistent with the following, we affirm the Judge’s decision. The Judge found that Applicant was born in Iran, immigrating to the U.S. in the early 1970s. He attended college in the U.S. and served in the U.S. Army, retiring with the rank of Master Sergeant (E-8). After retiring he worked as a contractor, often in high-risk areas of the world. Applicant has not traveled to Iran since immigrating to the U.S. After becoming a U.S. citizen, he obtained a U.S. passport. However, he renewed his Iranian passport twice in the 1980s. This passport expired in the late 1980s. He renewed it twice again in the 2000s, but it has expired. He had done so because of a desire to visit his uncle in Iran and his family’s concern that it could be dangerous for Applicant if he traveled on a U.S. passport. During a security clearance interview in 2011, Applicant stated that he had obtained his Iranian passport at the request of another Government agency. He also stated that he had used his Iranian passport for identification purposes while working on official business overseas. At the hearing, however, he denied making the statement and claimed that he had always left his Iranian passport at home when traveling abroad. He has retained the expired Iranian passport for sentimental reasons and as a souvenir. The record contains three security clearance applications (SCA),1 in which he stated that he had dual citizenship with the U.S. and Iran. However, in a subject interview in 2003, he denied having dual citizenship or possessing an Iranian passport. In each of the three SCAs included in the record, Applicant denied that he held an active Iranian passport. In the Analysis, the Judge stated that Applicant was aware that he had been in possession of an active passport. That he has not used this passport does not excuse Applicant’s failure to mention it in his SCAs. She stated that Applicant has not provided a reason for his failure to acknowledge this passport. In the whole-person analysis, the Judge stated that Applicant’s failure to acknowledge this passport in three SCAs and in a subject interview in 2003 raises serious questions about his judgment that Applicant has failed to overcome. Accordingly, she denied Applicant a clearance. In his appeal brief, Applicant contends that he did not intentionally fail to advise of his Iranian passport. He states that the word “active” means a passport that had been used. Because he had not used this passport, he believed that it was not active. He argues that “active” and “valid”

2 Compare, however, with Applicant’s interview summary contained in GE 7, Answers to Interrogatories, in which he stated that he “holds a current, valid passport issued by Iran.” Applicant acknowledged that this interview summary, along with two previous ones, was accurate. GE 8, Answers to Interrogatories.

3 Applicant’s argument on appeal that he had failed to mention his passport because the question at issue was ambiguous reiterates his reply to the SOR on this matter. This argument is not consistent with his statement, contained in his 2009 interview summary, that he had omitted his Iranian passport “due to an oversight.” GE 7. do not have the same meaning and that he did not understand the question at issue in each of the three SCAs.2 As the Judge acknowledged, in evaluating an applicant’s state of mind, one must consider the false statement or omission in light of the record as a whole. See, e.g., ISCR Case No. 07-00196 at 2 (App. Bd. Feb. 20, 2009). In the case currently before us, the Judge considered Applicant’s knowledge that he held the passport. Moreover, her finding that he had obtained it for purposes of travel to Iran or for official travel militates against an innocent mistake by Applicant. Her findings about Applicant’s inconsistent statements concerning whether he had used the passport for official purposes also support her adverse conclusion.3 Viewed in light of the record as a whole, the Decision articulates a satisfactory explanation for its ultimate holding. The 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 decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board