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ISCR Case 12-12172.a1 — CASE

ISCR Case 12-12172.a1denied

Case Headnote

ISCR Case No. 12-12172.a1

Jan 9, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, originally from Eritrea, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant had family members residing in Sudan and Egypt, raising questions about potential foreign influence and coercion. Specifically, the applicant did not adequately demonstrate that these family ties, particularly those in a hostile country, would not pose a security risk.

Further concerns arose under Guideline E regarding the applicant's personal conduct. The applicant failed to disclose a prior job termination, which was seen as a lack of candor and raised questions about his judgment and reliability. While some mitigating conditions were considered, they were ultimately insufficient to overcome the disqualifying conditions.

The appeal board upheld the denial, emphasizing the applicant's inability to mitigate the risks associated with potential coercion from foreign relatives and his failure to be forthcoming about his employment history. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

B2raisedForeign Contacts and Interests
E2raisedDeliberate Omission of Information

Mitigating

B1rejectedThe Nature of the Foreign ContactsThe applicant did not demonstrate that his foreign relatives would not pose a coercion risk.
E2rejectedThe Applicant's Reputation and CharacterThe applicant's failure to disclose his job termination was deemed deliberate.

Key Rule Quoted

“An applicant with family members in a hostile country bears a 'very heavy burden' to show that these relatives are not a means of coercion or exploitation.”

Procedural Posture

SOR issuedFeb 6, 2013
Answer filed—
Hearing heldJul 31, 2013
Decision dateJan 9, 2014

Cite For

Security Concerns Under Guideline B Due to Foreign Influence
Issues of Personal Conduct Related to Job Termination
Burden of Proof on Applicants with Foreign Ties 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 seeking a security clearance who was denied due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding substantial evidence supporting the security concerns raised.

Appealed bythe applicant

Applicant representationAttorney

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge ignored evidence supporting mitigation.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended 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 material findings of security concern were supported by substantial evidence and that the applicant failed to demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law. The applicant's circumstances raised significant security concerns under both Guidelines B and E.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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; Guideline E DIGEST: The Judge’s material findings of security concern are supported by substantial evidence. Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. An applicant with family members in a hostile country has a “very heavy burden” to show that they are not a means through which the applicant could be subjected to coercion. Adverse decision affirmed. CASE NO: 12-12172.a1 DATE: 01/09/2014 DATE: January 9, 2014 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-12172

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Corey Williams, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 6, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 31, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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’s findings of fact contained errors 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 Eritrea but moved to Sudan as a young man. From there he came to the U.S., as subsequently did his wife and children. Applicant became a U.S. citizen in the late 1990s. One of Applicant’s siblings is a citizen and resident of Sudan. Applicant calls this sibling once a year. He has other siblings who are citizens and residents of Eritrea and with whom he communicates more frequently, one of them on a monthly basis. Applicant’s wife owns property in Egypt, which she purchased as a retirement home.1 The Judge took official notice of documents submitted by the Government. These documents assert, inter alia, that Sudan is a country with a significant history of state-sponsored terrorism and that it, along with Egypt, violate human rights and manifest anti-U.S. sentiments. Both countries engage in the illegal collection of U.S. technologies and proprietary material. In completing his security clearance application (SCA), Applicant stated that the reason that he left a prior employment as a linguist was that he had completed his contract. He did not advise that he had in fact been terminated from that position. In his answer to the SOR, and his response to the File of Relevant Material (FORM), he stated that his termination had been wrongful, as evidenced by his having received unemployment compensation. He stated that the employer had alleged that he had made derogatory comments about the national government and coalition forces. Applicant enjoys an excellent reputation for the quality of his work performance as well as for his integrity and sense of duty. A commander for whom Applicant worked strongly recommended that he be considered for continued translator duties. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raised concerns under both Guidelines alleged in the SOR. In analyzing Applicant’s case for mitigation under Guideline B, she stated that, in light of the presence of terrorists in Sudan and hostilities expressed toward the U.S. by Egypt, Applicant had failed to demonstrate that it is unlikely that he could be put in a position of choice between the interests of the U.S. and those of Sudan. Under Guideline E, the Judge concluded that Applicant’s failure to mention his job termination was deliberate. She stated that Applicant understood the questions at issue and that the possible wrongful nature of the termination was not a reason to have failed to disclose it. She concluded that Applicant’s continued assertions to the contrary raise questions about his judgment. 2 Applicant also never referenced his job termination during his clearance interview, stating that “no adverse actions or disciplinary actions were levied against [him] at this employment.” Item 6, Clearance Interview, at 5. Although not alleged in the SOR, this additional omission is relevant in evaluating Applicant’s intent. See, e.g., ISCR Case No. 10-03732 at 6, n. 4 (App. Bd. Jun. 14, 2013), citing to Federal Rule of Evidence 404(b) regarding the admissibility of other acts or wrongs to establish motive, intent, absence of mistake, etc.

DISCUSSION

Applicant challenges the Judge’s finding that his failure to mention his job termination on his SCA was deliberate. We examine a Judge’s findings of fact to see if they are supported by substantial record evidence. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.” ISCR Case No. 10-06089 at 2 (App. Bd. Sep. 11, 2013) (internal citation omitted). In analyzing an applicant’s mens rea, a Judge must consider the applicant’s answers in light of the entire record. See, e.g., ISCR Case No. 11-14265 at 3 (App. Bd. Aug. 28, 2013). In explaining the challenged finding, the Judge cited to the clarity of the questions, to Applicant’s apparent ability to understand them, and to Applicant’s explanation for his omission, contained in Applicant Exhibit (AE) A, Response to the FORM. In this response, Applicant made a statement to the effect that, if one assumed his termination had been proper, it would cast a negative light on his integrity and trustworthiness, which supports a conclusion that the omission was deliberate.2 Applicant also challenges the Judge’s finding he had been terminated for having made derogatory statements about coalition partners. Applicant denied having made such statements. However, the Judge did not find that this conduct actually occurred, only that it was the basis for the job termination. The Judge’s material findings of security concern are based upon substantial record evidence. Any errors in these findings are harmless. Applicant cites to aspects of his family circumstances that, he contends, support his case for mitigation under Guideline B, including evidence that Applicant’s relatives moved to Sudan following a communist takeover of their native country. The Judge made fairly extensive findings about Applicant’s foreign relatives. Applicant has failed to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 10-04641 at 3 (App. Bd. Sep. 24, 2013). Neither has he demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Applicant cites to decisions by the Hearing Office which, he contends, support his case for mitigation. We have given these cases due consideration as persuasive authority. However, they possess significant differences from Applicant’s, viewing his security-significant conduct as a totality. We note that one of the cases that Applicant has cited was reversed on appeal. In any event, other Hearing Office cases are binding neither on us nor other Hearing Office Judges. See, e.g., ISCR Case No.11-10178 at 3 (App. Bd. Aug. 29, 2013). Applicant challenges the Judge’s application of the mitigating conditions. However, after reviewing the Decision in light of the record as a whole, we find no reason to disturb the Judge’s analysis. An applicant with family members in a hostile country bears a “very heavy burden” to show that these relatives are not a means of coercion or exploitation. The presence of terrorist activity in a foreign country is a significant factor in Guideline B cases as well. ISCR Case No. 10- 09986 at 3 (App. Bd. Dec. 15, 2011). In addition, an applicant’s failure to provide truthful information during the adjudication of his or her SCA is “an offense that strikes at the heart of the security clearance process.” ISCR Case No. 09-01652 at 7 (App. Bd. Aug. 8, 2011). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. 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: 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 discussed this apartment during his clearance interview. He advised the interviewer that the dwelling was paid off in 2010. He stated that his wife anticipated their living in the apartment during retirement, expressing no disagreement. Item 6, Clearance Interview, at 11.