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ISCR Case 12-07670.a1 — CASE

ISCR Case 12-07670.a1denied

Case Headnote

ISCR Case No. 12-07670.a1

Jul 8, 2013· Hon. Jean E. Smallin· appeal

Summary

A U.S. citizen, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence) due to significant security concerns related to familial ties in Afghanistan. The applicant maintained frequent contact with relatives in the region, including an uncle who held a high-ranking military position.

The judge determined that these connections, particularly given the political instability and prevalent terrorist activity in Afghanistan, created a foreseeable risk of conflict between the applicant's family interests and U.S. national security. The applicant's claims of bias were found to be unsubstantiated.

Ultimately, the security clearance was denied, as the existing foreign influence concerns were deemed too substantial to mitigate.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

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 heldApr 25, 2013
Decision dateJul 8, 2013

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Familial Ties on Security Clearance Decisions
The Significance of Political Instability and Terrorism in Assessing Security 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 was from a denial of a security clearance based on foreign influence concerns under Guideline B. The applicant argued that the Judge's findings were not supported by evidence and claimed bias. The Board affirmed the Judge's decision, finding the concerns about the applicant's foreign relatives and the potential for conflict of interest were valid.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJames F. Duffy — 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's finding regarding his uncle's military rank was not supported by substantial evidence.
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.
Judge bias or partiality — raised by the applicantRejected
Applicant claimed that the Judge was biased against him due to his country of origin.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge's conclusions regarding security concerns were reasonable given the applicant's family connections in Afghanistan.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jean E. Smallin
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 record supported the Judge’s finding that Applicant’s uncle held a high rank in the military. The Judge’s conclusion that the presence of foreign relatives in Afghanistan raised unmitigated security concerns is sustainable. Applicant’s contention that the Judge was biased against him does not overcome the presumption that the Judge was impartial. Adverse decision affirmed. CASENO: 12-07670.a1 DATE: 07/08/2013 DATE: July 8, 2013 In Re: -------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-07670

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Christopher Graham, Esq. 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 Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On April 25, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy 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 were supported by substantial record evidence; whether the Judge was biased against Applicant; 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 works for a Defense contractor. Born in Afghanistan, he was educated in that country and in the United States. He left that country in the late 1970sand lived for several months in another Mideast country. He moved to a third Mideast country, working for an organization that obtained aid such as food, clothing, etc., for persons in need. He came to the U.S. in the early 1980s and became a U.S. citizen in the mid-1980s. He has numerous relatives living in Afghanistan, including his mother, a citizen and resident of that country. Applicant speaks with her about once a month and provides her with between $2,000 to $4,000 per year. Applicant has three siblings and several siblings-in-law who are citizens and residents of Afghanistan. He has two uncles and several nephews who are citizens and residents of that country. One uncle was a high-ranking official in the military and, having left the service, later worked for the government of Afghanistan, assisting in military and police matters. Applicant has monthly contact with this uncle. The other uncle is retired from a position within the government of Afghanistan. Applicant has received numerous certificates for his dedication and outstanding duty performance. Although he has never been in combat, Applicant testified that he has been exposed to improvised explosive devices or to other potential attacks. Afghanistan has a poor human rights record. It faces many daunting challenges, including defeating terrorists. The Judge’s Analysis The Judge found that Applicant’s foreign relatives raised security concerns under Guideline B. He noted the instability of the government in Afghanistan and evidence that terrorists operate within its borders and concluded that Applicant’s contact with his foreign relatives are neither casual nor infrequent. Given the poor security conditions in Afghanistan, the Judge stated that Applicant could be placed in a position of having to choose between his relatives and the interests of the United States. The Judge addressed Applicant’s evidence that he had been exposed to danger in support of U.S. military operations, concluding that it was not sufficient to mitigate the security concerns arising from Applicant’s family connections.

DISCUSSION

Applicant challenged the Judge’s finding that one of his living uncles held a high rank in the military. He cites to his testimony that he did not know for certain what his uncle’s rank was. We examine a Judge’s findings to see if they are supported by substantial record evidence. See, e.g., ISCR Case No. 10-06195 at 3 (App. Bd. Oct. 4, 2011). In this case, Applicant admitted the SOR allegation pertaining to his uncle’s rank. In addition, he testified that he took the word of another uncle in stating the military rank in question. Although acknowledging that he had no first-hand knowledge of this matter, he did not deny that his uncle held the rank in question. Even without his SOR admission, the evidence is sufficient to support the Judge’s finding. Applicant contends that the Judge was biased against him because of his country of origin. He cites to the Judge’s alleged error about the uncle’s rank in support of this argument, contending that an error so purportedly egregious could only be explained as having resulted from bias. However, as stated above, the challenged finding is supportable. Applicant points to nothing in the record likely to persuade a reasonable person that the Judge lacked the requisite impartiality. Applicant has not rebutted the presumption that the Judge was impartial. See, e.g., ISCR Case No. 11-03500 at 3 (App. Bd. Feb. 28, 2012). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The presence of terrorist activity in a foreign country is a significant factor in Guideline B cases. See, e.g., ISCR Case No. 10-09986 at 3 (App. Bd. Dec. 15, 2011). In addition, the Judge’s findings about the political instability in Afghanistan, human rights violations in that country, the extent of Applicant’s family connections there, the prominence of some of his family members, and Applicant’s frequent contact with his family support a reasonable conclusion that there exists a foreseeable risk that Applicant could come to the attention of persons interested in acquiring U.S. classified information, thereby subjecting him to a conflict between the interests of his family and those of the U.S. 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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