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ISCR Case 11-12659.a1 — CASE

ISCR Case 11-12659.a1denied

Case Headnote

ISCR Case No. 11-12659.a1

May 30, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen applicant was denied a security clearance under Guideline B (Foreign Influence) due to unmitigated concerns regarding his family ties in Iran. The applicant's wife is Iranian, and her family resides in Iran, a country designated as a state sponsor of terrorism.

The denial emphasized the heightened risk of coercion or exploitation posed by the applicant's Iranian in-laws. The judges concluded that the applicant did not adequately demonstrate that he could not be used as a conduit for foreign entities to obtain classified information.

Despite the applicant's significant and long-standing ties to the U.S., these connections were deemed insufficient to mitigate the security concerns arising from his family's presence in Iran. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe applicant's ties to the U.S. and his lengthy service in the defense industry did not mitigate the risks associated with his Iranian family ties.

Key Rule Quoted

“An applicant with family members living in a country hostile to the U.S. has a 'very heavy burden' to show that they are not a means through which the applicant could be subjected to coercion or exploitation.”
— ISCR Case No. 10-09986 at 3 (App. Bd. Dec. 15, 2011)

Procedural Posture

SOR issuedAug 21, 2012
Answer filed—
Hearing heldMar 13, 2013
Decision dateMay 30, 2013

Cite For

Security Concerns Related to Family Ties in a Hostile Country Under Guideline B
The Heavy Burden of Proof on Applicants with Foreign Family Ties
The Rebuttable Presumption of Affection for Immediate Family Members of a Spouse in Security Clearance Cases

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 an applicant who was denied a security clearance due to concerns under Guideline B related to foreign influence from family members in Iran. The applicant argued that the Judge erred in applying mitigating conditions and in the whole-person analysis. The Board affirmed the decision, finding that the applicant did not sufficiently mitigate the security concerns.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in his application of the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
The whole-person analysis was in error.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not meet the burden of proof to mitigate the security concerns raised by his foreign in-laws.

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: An applicant with family members living in a hostile country has a “very heavy burden” to show that they are not a means through which the applicant could be coerced into revealing classified information. There is a rebuttable presumption that a person has ties of affection for immediate family members of his or her spouse. Adverse decision affirmed. CASE NO: 11-12659.a1 DATE: 05/30/2013 DATE: May 30, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-12659

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Julia Szafraniec, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 21, 2012, DoD 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 March 13, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley 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 application of the mitigating conditions and whether the whole-person analysis was in error. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant’s Iranian wife immigrated to the U.S. in the late 1970s, becoming a U.S. citizen in the 1990s. She has retained her Iranian citizenship and has an expired Iranian passport. Her parents are Iranian citizens who live in Iran. She also has several siblings who are Iranian citizens. Applicant’s wife communicates daily with her mother. Her parents sent money to Applicant and his wife for them to invest on the parents’ behalf. Applicant and his wife spent the funds on a rental townhouse near their home. The Judge made extensive findings about Iran, based on official-notice documents submitted by the Government. These findings include the following: Iran has long been designated by the U.S. as a state sponsor of terrorism. It has provided weapons, training, and funding to terrorist groups and to militant groups that target U.S. forces. Iran has a poor human rights record. Foreign visitors may be placed under surveillance, their hotel rooms and telephone conversations monitored and their belongings searched. It considers U.S.-Iranian dual nationals as Iranian citizens. It is seeking the capability to produce nuclear weapons. There have been numerous cases of persons attempting to export U.S. technology to Iran. Monetary remittances from Iran must take place through the Iranian banking system. Remittances that occur through non-banking channels can expose the person in Iran to monitoring and penalties if detected. The Judge’s Analysis The Judge concluded that Applicant’s Iranian relatives raised security concerns under Guideline B. He cited to evidence that Iran supports terrorism and abuses human rights, concluding that the country is more likely to use improper or illegal means to obtain classified information. He concluded that Applicant’s in-laws in Iran present heightened security risks. He stated that the means whereby the parents transferred funds to Applicant and his wife are unknown, but the evidence raises a real possibility that the transfer could be tracked. The Judge also stated that Applicant’s wife’s contacts with her parents are significant and ongoing, and, considering Applicant’s family circumstances in the context of the geopolitical situation of Iran, a heightened security risk exists. Although noting Applicant’s significant ties within the U.S., the Judge concluded that Applicant had not mitigated the concerns raised by his foreign in-laws. The Judge noted Applicant’s having held a clearance for many years and his lengthy service to the Defense industry. However, he concluded that the risks inherent in Applicant’s family circumstances militated against granting him a clearance.

DISCUSSION

After considering the record as a whole, we conclude that the Judge examined the relevant data and articulated a satisfactory explanation for the decision. An applicant with family members living in a country hostile to the U.S. has a “very heavy burden” to show that they are not a means through which the applicant could be subjected to coercion or exploitation. See, e.g., ISCR Case No. 10-09986 at 3 (App. Bd. Dec. 15, 2011). There is a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of the persons’ spouse. The presence of terrorist activity in a foreign country is a significant factor in Guideline B cases, as is the geopolitical situation of the foreign country. Id. 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 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