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ISCR Case 12-08823.a1 — CASE

ISCR Case 12-08823.a1granted

Case Headnote

ISCR Case No. 12-08823.a1

May 6, 2016· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance decision involved an applicant, a naturalized U.S. citizen from Iraq, who was granted a clearance despite initial concerns under Guideline B (Foreign Influence) and Guideline M (Use of Information Technology). The primary issues stemmed from his family ties in Iraq and prior military service.

The decision to grant the clearance was heavily influenced by the applicant's extraordinary service and cooperation with U.S. objectives. He demonstrated a deep commitment to U.S. values, which the judge found effectively mitigated potential conflicts of interest under Guideline B. This commitment was particularly significant given the substantial personal risks he faced due to his cooperation with U.S. forces.

Ultimately, the applicant's circumstances met the criteria for Mitigating Condition 8(b), indicating a minimal conflict of interest. The judge concluded that the applicant's demonstrated loyalty and the dangers he endured outweighed the government's initial concerns, leading to the granting of his security clearance.

Conditions Referenced

Mitigating

MC 8(b)appliedMitigating Condition 8(b)The applicant's loyalty to U.S. interests was deemed profound due to his long-standing commitment and service.

Key Rule Quoted

“An applicant’s assumption of 'a high level of risk on behalf of the U.S.' constitutes important evidence under MC 8(b).”
— ISCR Case No. 06-25928 at 4 (App. Bd. Apr. 9, 2008)

Procedural Posture

SOR issuedMay 2, 2015
Answer filed—
Hearing heldJan 28, 2016
Decision dateMay 6, 2016

Cite For

Application of Mitigating Condition 8(b) in Cases Involving Foreign Influence
Consideration of Personal Risk in Favor of U.S. Interests
Balancing of Conflicting Evidence in Security Clearance Decisions

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 security clearance decision where the Department of Defense initially denied the applicant's clearance based on security concerns under Guideline B. The Administrative Judge granted the clearance, citing the applicant's cooperation with U.S. efforts and the risks he faced. The Department Counsel appealed, arguing the decision was arbitrary and unsupported by evidence. The Appeal Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's favorable decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the evidence supported the favorable application of Mitigating Condition 8(b) despite the government's concerns.

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 based his decision, for the most part, on evidence of Applicant’s cooperation with the U.S and the considerable hardship and danger he faced as a result of that cooperation. It was appropriate for the Judge to consider this, in light of applicant’s assumption of “a high level of risk on behalf of the U.S.” We find no error in the manner in which the Judge balanced the conflicting considerations, including Applicant’s service in a foreign military organization. The record in this case provides a reasonable basis for the Judge’s conclusion that MC 8(b) applied with sufficient force to overcome the Government’s security concerns under Guideline B. Favorable decision affirmed. CASENO: 12-08823.a1 DATE: 05/06/2016 DATE: May 6, 2016 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-08823

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Candace L. Garcia, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 2, 2015, 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 January 28, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s favorable decision is arbitrary, capricious, and contrary to law, in that it is unsupported by the weight of the record evidence and fails to consider an important aspect of the case. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was born and raised in Iraq. He was commissioned in the Iraqi military. After the U.S.-led coalition toppled the Iraqi regime and disbanded the military, Applicant joined coalition efforts to stabilize the country. He agreed to assist the U.S. because he agreed with this country’s values. “Applicant’s service was extraordinary.” Decision at 2. He assisted the U.S. in counter- terrorism operations, putting his life on the line in support of U.S. objectives. He survived multiple assassination attempts, and, in the mid-2000s, terrorists kidnaped and/or killed members of his family. A member of the U.S. military stated that despite threats to his life and safety, Applicant “never diminished his commitment to the common American and Iraqi goal of building a safe, more stable Iraq.” Id. at 3. Applicant and his immediate family have become naturalized citizens. Applicant’s mother and two of his siblings live in Iraq. Applicant talks with them about once a year. He has siblings who live in other countries. Since the U.S. military withdrew from Iraq, sectarian and ethnic divisions have widened, threatening the country’s stability. U.S. citizens in Iraq are in danger of being kidnaped, and terrorist organizations operate within the country. The Judge’s Analysis The Judge concluded that Applicant’s circumstances met the criteria for mitigation under Mitigating Condition (MC) 8(b): [T]here is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S. that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest. Directive, Enclosure 2 ¶ 8(b). He stated that Applicant has been living in the U.S. for nearly a decade and is “profoundly committed to promoting U.S. values.” Decision at 5. He cited to evidence of Applicant’s service in the Iraqi military on behalf of U.S. objectives despite threats to his life and attacks on his family.

DISCUSSION

Department Counsel’s brief includes an extensive summary of the record evidence, providing many favorable details about Applicant’s service on behalf of U.S. objectives that the Judge did not include. Department Counsel does not challenge the Judge’s findings about Applicant’s bravery in the face of multiple threats to himself and his family. However, she argues that the record does not support the Judge’s favorable application of MC 8(b). She argues that Applicant has few ties within the U.S. and that his Iraqi relatives are highly visible, having been targeted many times. She also states that Applicant’s service in the Iraqi military entails a possible conflict of interest. We have evaluated Department Counsel’s argument in light of the record. The Judge based his decision, for the most part, on evidence of Applicant’s cooperation with the U.S and the considerable hardship and danger he faced as a result of that cooperation. It was appropriate for the Judge to consider this, in light of prior cases in which we held that an applicant’s assumption of “a high level of risk on behalf of the U.S.” constitutes important evidence under MC 8(b). ISCR Case No. 06-25928 at 4 (App. Bd. Apr. 9, 2008). However, although such service should be addressed, it will not necessarily be dispositive in any given case. It must be balanced against other evidence that might weigh against an applicant and diminish the probative force of his risks on behalf of the U.S. With that understanding, we find no error in the manner in which the Judge balanced the conflicting considerations, including Applicant’s service in a foreign military organization. The record in this case provides a reasonable basis for the Judge’s conclusion that MC 8(b) applied with sufficient force to overcome the Government’s security concerns under Guideline B.

ORDER

The 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