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ISCR Case 11-14079 — CASE

ISCR Case 11-14079denied

Case Headnote

ISCR Case No. 11-14079

May 6, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence) due to multiple siblings residing in Iran, a country considered hostile to the U.S. The applicant's family ties in Iran raised significant security concerns, specifically under Disqualifying Condition AG ¶ 7.

Despite the applicant's demonstrated good duty performance, which was considered under Mitigating Condition AG ¶ 8, the judge determined this was insufficient to mitigate the risks posed by the foreign family connections. The judge concluded that the applicant did not adequately address the security concerns.

The appeal board affirmed the denial, agreeing that the applicant failed to meet the burden of proof necessary to alleviate the concerns under Guideline B. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge found that the applicant's circumstances did not mitigate the 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 issuedAug 22, 2012
Answer filed—
Hearing heldMar 14, 2013
Decision dateMay 6, 2013

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Burden of Proof on Applicants with Family in Hostile Countries
Insufficient Mitigation of Security Risks Despite Good Duty Performance

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 seeking a security clearance who was denied due to concerns under Guideline B related to foreign influence from numerous siblings living in Iran. The applicant raised several issues on appeal, including claims of bias and due process violations. The Board affirmed the Administrative Judge's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

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.
Due-process / fairness — raised by the applicantRejected
Applicant contended that he was denied due process.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant claimed that the Judge failed to consider all of the record evidence.
Credibility determination — raised by the applicantRejected
Applicant alleged that the Judge lacked the requisite impartiality.

Why the Board ruled this way

The Board found that the Judge's findings and conclusions were sustainable and that the concerns regarding the applicant's numerous siblings living in Iran had not been mitigated. The Board concluded that the applicant did not demonstrate that the Judge's decision was arbitrary or capricious, nor did he show a lack of due process or impartiality.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
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: The Judge found that concerns arising from Applicant’s numerous siblings living in Iran had not been mitigated. Applicant’s numerous relatives who live in a country that is intensely hostile to the U.S. raised concerns that evidence of good duty performance could not mitigate. The Judge’s findings and conclusions are sustainable. Adverse decision affirmed. CASE NO: 11-14079 DATE: 05/06/2013 DATE: May 6, 2013 In Re: ----------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-14079

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 22, 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

FOOTNOTES

1 Applicant states that, prior to the hearing, Department Counsel advised him that no one receives a clearance without a recommendation from his or her employer. Applicant states that he expended time and effort to obtain letters of reference for inclusion in the record. His argument contains matters outside the record, which we generally are unable Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On March 14, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry 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 lacked the requisite impartiality; whether Applicant was denied due process; whether the Judge failed to consider all of the record evidence; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was born in Afghanistan. He immigrated to the U.S. in the late 1980sand became a citizen of this country a few years later. Applicant and his wife, a naturalized U.S. citizen, have two children born and raised in the U.S. Several of Applicant’s siblings are Afghani citizens living in Iran. He has another sibling who is a resident of a European country. Applicant speaks with some of his relatives in Iran six to twelve times a year. Iran is virulently anti-American. It sponsors terrorism and is seeking to develop weapons of mass destruction. It employs torture and other abuses to instill fear among dissenters. Several U.S. citizens have been detained by the Iranian government and held without consular access. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raised Guideline B security concerns. He also concluded that concerns arising from two of Applicant’s foreign relatives had been mitigated. However, the Judge found that concerns arising from Applicant’s numerous siblings living in Iran had not been mitigated. The Judge acknowledged that Applicant had performed admirably during a previous job as an interpreter. He went on to state that Applicant’s numerous relatives who live in a country that is intensely hostile to the U.S. raised concerns that evidence of good duty performance could not mitigate. Discussion Applicant’s brief states that there are many other applicants with circumstances similar to his who have been given clearances. He states that he does not understand why he has been singled out. We interpret the brief as contending that the Judge was biased. There is a rebuttable presumption that a Judge is unbiased, and a party seeking to rebut that presumption has a heavy burden on appeal. See, e.g., ISCR Case No. 05-04923 at 2 (App. Bd. Apr. 24, 2007). We have examined the record, paying particular attention to the Judge’s conduct of the hearing, and find no reason to conclude that the Judge lacked impartiality. He explained DOHA hearing procedures clearly and thoroughly, providing Applicant an opportunity to submit additional evidence after the hearing closed.1 In addition, Applicant objected to some of the Government’s proposed official to consider. See Directive ¶ E3.1.29. However, we have examined such evidence when it raises issues of due process, etc. Applicant does not appear to be arguing that he was misled by Department Counsel or otherwise denied due process regarding this matter. Rather, the focus of his argument is his contention that the Judge did not consider his submissions. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 10-07104 at 3 (App. Bd. Feb. 25, 2013). notice documents, and the Judge sustained the objection as to three of them. Applicant has not rebutted the presumption that the Judge was impartial. Applicant contends that he lacked both experience in administrative hearings and the money to hire a lawyer. He states that his case was not presented as clearly as it could have been. The record demonstrates that, both in pre-hearing guidance and at the beginning of the hearing, Applicant was advised of his right to hire an attorney. Applicant’s decision to represent himself appears to have been knowing and voluntary. As stated above, Applicant submitted numerous post- hearing exhibits, and prevailed in a challenge to some of the official notice exhibits offered by the Government. Applicant has not cited to any additional evidence that he could have submitted nor demonstrated that his inexperience had a material impact on his case. Based on the record as a whole, we conclude that Applicant was not deprived of the due process afforded by the Directive. See, e.g., ISCR Case No. 08-09808 at 2 (App. Bd. Sep. 21, 2009). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. An applicant with family members in a hostile country has a “very heavy burden” to show that they are not a means of coercion or exploitation. See, e.g., ISCR Case No. 10-09986 at (Dec. 15, 2011). 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: 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board