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ISCR Case 10-05329.a1 — CASE

ISCR Case 10-05329.a1denied

Case Headnote

ISCR Case No. 10-05329.a1

Oct 17, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A naturalized U.S. citizen, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence). The applicant had served as a linguist and cultural advisor in a war zone, but this service did not mitigate the security concerns.

The denial was based on the applicant's significant and frequent family contacts in Afghanistan, a region with ongoing terrorist activities. These connections were deemed to pose a substantial risk of coercion, which was identified as a disqualifying condition under Adjudicative Guideline Paragraph 7.

The Appeal Board upheld the denial, emphasizing that the family's presence in a high-terrorism environment created an unacceptable risk of foreign influence. The judge concluded that the potential for coercion outweighed the applicant's past contributions.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge concluded that the applicant's service in a dangerous environment did not sufficiently mitigate the risks posed by his family ties.

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 issuedDec 22, 2010
Answer filed—
Hearing heldJul 21, 2011
Decision dateOct 17, 2011

Cite For

Security Concerns Under Guideline B Due to Foreign Influence
Impact of Family Ties in High-risk Environments on Security Clearance Decisions
Weighing of Evidence in Cases Involving Service in War Zones Against Foreign Influence Risks

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 security concerns under Guideline B. The Applicant argued that the Judge erred in weighing evidence of his service in a war zone and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not properly analyze his evidence in mitigation.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was 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 Board found that the Judge's conclusions regarding the Applicant's service and the potential security concerns were within his discretion and supported by substantial evidence. The Judge's decision was not arbitrary or capricious, and the errors identified were deemed harmless.

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 DIGEST: The Judge discussed Applicant’s service in Afghanistan in the appropriate context. His conclusion that Applicant’s service did not outweigh the evidence of security concern was within his discretion. Adverse decision affirmed. CASENO: 10-05329.a1 DATE: 10/17/2011 DATE: October 17, 2011 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-05329

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Department Counsel FOR APPLICANT Leslie McAdoo Gordon, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 22, 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 July 21, 2011, after the hearing, Administrative Judge Juan J. Rivera 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 erred in his weighing of evidence of Applicant’s service in a war zone and whether the Judge’s adverse 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 working for a Government contractor in support of U.S. military forces deployed overseas. Applicant was born, raised, and educated in Afghanistan. In the early 1990s, Applicant traveled to another country to work for an agency providing relief to Afghanistan. He came to the U.S. to receive computer training. Due to threats to him lodged by a terrorist organization in the other country, Applicant was granted asylum in the U.S. for himself and his wife. He became a naturalized citizen in the late 2000s. In this country, he studied laboratory technology and subsequently worked at a large U.S. hospital. Applicant’s mother, numerous siblings, mother-in-law, and uncle are citizens and residents of Afghanistan. Before taking his current job, he had telephonic and e-mail contact with his mother and siblings two to three times a month. He visited his mother in 2005, when she had become ill. He also traveled to visit her in 2010, when she had again been hospitalized. Applicant enjoys an excellent reputation for his work ethic, compliance with security rules, and his abilities as a linguist and cultural advisor. Afghanistan has had a democratic government since 2004. However, terrorist forces within Afghanistan engage in activities such as bombings, suicide operations, assaults, and hostage taking. The risk of terrorist activity in Afghanistan is “extremely high.” Decision at 4. Non-government organizations have been targeted, as have journalists, government workers, and U.N. workers. In analyzing Applicant’s circumstances, the Judge concluded that his contacts in Afghanistan “are not casual, infrequent, or minimal.” Decision at 7. “The conduct of terrorists in Afghanistan makes it more likely that terrorists would attempt to coerce Applicant through his relatives living in Afghanistan, if they determined it was advantageous to do so.” Decision at 9. He also noted record evidence that Applicant’s father had been a high-ranking officer in the Afghan military and that he and his wife had been targeted by terrorists while living in the other country. The Judge also noted that Afghanistan is a country in which the U.S. is engaged in combat operations, although the exact nature and extent of his “high risk” circumstances is not evidenced in the record. In the whole-person analysis, the Judge reiterated his conclusions about the possibly precarious circumstances in Applicant’s family in Afghanistan and the bearing of those circumstances on his susceptibility to coercion. Applicant contends that the Judge did not properly analyze his evidence in mitigation. Specifically, he argues that the Judge failed to extend sufficiently favorable weight to evidence of Applicant’s service to the U.S. in a dangerous part of the world. We have previously held that a prior history of compliance with security procedures and regulations is generally of low probative value. However, we have also found an exception in Guideline B cases in which applicants demonstrate that they have made significant contributions to national security in dangerous, high- risk circumstances. ISCR Case No. 06-25928 at 3-4 (App. Bd. Apr. 9, 2008). In this case, the Judge discussed Applicant’s service in Afghanistan, where the U.S. is engaged in active military operations, and he did so in the explicit context of ISCR Case No. 06-25928, supra. His conclusion that the evidence regarding Applicant’s service did not outweigh the evidence of concern was within his discretion. We find no basis to disturb the Judge’s weighing of the evidence or to conclude that the Judge failed to consider all of the evidence in the record. See, e.g., ISCR Case No. 09-06691 at 3-4 (App. Bd. May 16, 2011).1

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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant asserts, and Department Counsel concedes, that the Judge made two errors in his findings of fact. After a review of the record and the Judge’s Decision, the Board concludes that the errors were minor and did not affect the outcome of the case.