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ISCR Case 13-00175.a1 — CASE

ISCR Case 13-00175.a1denied

Case Headnote

ISCR Case No. 13-00175.a1

Mar 20, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, originally from Pakistan, was denied a security clearance due to unmitigated concerns under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The applicant's close family ties remaining in Pakistan raised foreign influence concerns (B2) that were not sufficiently addressed.

Additionally, the applicant demonstrated insufficient evidence of financial responsibility, failing to mitigate concerns under Guideline F (F3). This included a lack of repayment plans for delinquent debts, indicating unresolved financial issues.

Despite an appeal, the adverse decision was upheld, as the applicant did not provide adequate mitigation for either the foreign influence or financial considerations. The security clearance was ultimately denied.

Conditions Referenced

Disqualifying

B2raisedForeign Influence
F3raisedFinancial Considerations

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 issuedApr 17, 2013
Answer filed—
Hearing heldJan 9, 2014
Decision dateMar 20, 2014

Cite For

Insufficient Mitigation of Foreign Influence Concerns Due to Family Ties
Lack of Financial Responsibility as a Basis for Clearance Denial
The Standard for Granting Clearance Must Align with National Security Interests

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 (Foreign Influence) and Guideline F (Financial Considerations). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that any errors made by the Judge were harmless and did not affect the outcome of the case.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline F

What the Board reviewed

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.

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 even if the Judge erred in one of his findings, the error did not affect the outcome of the case and was therefore harmless. The Board affirmed the Judge's decision based on the evidence presented and the lack of sufficient mitigation by the Applicant.

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; Guideline F DIGEST: Even if the Judge erred in one of his findings, the error did not affect the outcome of the case and, therefore, was harmless. Applicant failed to rebut the presumption that the Judge considered all of the evidence. Adverse decision affirmed. CASE NO: 13-00175.a1 DATE: 03/20/2014 DATE: March 20, 2014 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 13-00175

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 April 17, 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 F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On January 9, 2014, after considering the record, 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 issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was born, raised, and educated in Pakistan. He earned a bachelor’s degree there in the mid-1980s. He came to the U.S. in the late 1980sand became a U.S. citizen several years later. In the early 2000she married his current spouse, who is a citizen of Pakistan who holds permanent residence in the U.S. Applicant’s mother and three of his siblings are citizens and residents of Pakistan. Since becoming a U.S. citizen, Applicant has traveled to Pakistan on eight occasions to visit members of his family. Applicant maintains monthly to quarterly contact with his family members in Pakistan. Pakistan is a parliamentary federal republic. Pakistan provided support to U.S. efforts to combat terrorists following the attacks of September 11, 2001. However, there is anti-U.S. sentiment among certain political parties in Pakistan. An extensive terrorist network operates within the borders of that country. Senior Taliban leaders enjoy a safe haven there. These terrorist groups target U.S. and other western interests, as well as officials of the Pakistani government. In May 2011, U.S. military personnel raided a compound in Pakistan and killed al-Quaida leader Osama bin Laden. That he was found in a residential neighborhood illustrates the security concerns regarding Pakistan. There are reports that authorities in Pakistan use wiretaps and intercept mail without court approval, in addition to monitoring cell phone and electronic communications. Applicant has incurred a number of delinquent debts since 2009, for such things as auto loans and credit card services. Applicant also had a judgment against him based upon a debt. He attributes his financial problems to a job loss three years ago. However, from 2005 until the present he was employed for all but nine months, that is, from October 2011 until the following June. He presented no evidence of credit counseling or debt consolidation, nor did he provide evidence of repayment plans approved by any of his creditors. His financial statement reported a monthly remainder of $1,037 after expenses. Applicant enjoys a superb reputation for the quality of his work. This reputation is evidenced by several character references and by a certificate of achievement. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raised concerns under both Guidelines alleged in the SOR. In further concluding that Applicant had not mitigated these concerns, the Judge stated that there is little evidence in the record about his relatives, as a consequence of which the potential significance of his contact and visits with them cannot be discounted. None of Applicant’s contacts with his Pakistani family members can be viewed as casual or infrequent. The Judge stated that Applicant’s close family connections in Pakistan raise a heightened risk that he could become subjected to coercion, a risk that his favorable evidence was not sufficient to mitigate. Regarding Applicant’s finances, the Judge stated that, while his problems may have been affected by his job loss, which was beyond his control, there is insufficient information about his efforts at repayment to permit a conclusion that he had acted responsibly. He stated that the evidence in the record was limited, providing little insight into the origin of Applicant’s debts, his payment history, and his attempted efforts since having received the SOR. Given evidence that Applicant has been gainfully employed for several years, he could be expected to have initiated more timely and substantial payments than are shown in the record. The Judge also stated that the paucity of record evidence undermined a favorable whole-person assessment. Though crediting Applicant with some measure of debt resolution, he stated that Applicant’s apparent lack of attention to older debts left him with doubts as to his fitness for a clearance.

DISCUSSION

Applicant challenges the Judge’s finding that his wife holds permanent resident status in the U.S. He states that, to the contrary, she is a naturalized U.S. citizen, as he is. Although Applicant’s security clearance application states that his wife is a U.S. citizen (Item 5 at 22-23), in his interview he described her as a citizen of Pakistan. Item 7 at 2. A Judge’s task includes resolving conflicts in the evidence, and it is not clear that the Judge erred in this matter. However, Department Counsel, in the memorandum accompanying the File of Relevant Material, states that Applicant’s wife is a U.S. citizen. Moreover, her citizenship status was not alleged in the SOR, and the Judge did not discuss this matter in his analysis, or otherwise give the appearance of having relied on it. Therefore, even if this finding is erroneous, the error is harmless in that it did not likely exert a material effect on the outcome of the case. See, e.g., ISCR Case No. 12-04565 at 3 (App. Bd. Oct. 28, 2013). In his appeal brief, Applicant cites to record evidence, such as his mother’s age and physical condition and that some of his debts have been resolved. To the extent that he is arguing that the Judge did not consider this evidence, he has failed to rebut the presumption to the contrary. Moreover, as we have stated before, a party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 11-10695 at 2 (App. Bd. Jan. 24, 2014). Applicant states that his remaining debts will be addressed one after another. Applicant’s argument is not sufficient to undermine the Judge’s conclusion that the record contained insufficient evidence to demonstrate mitigation. Promises to resolve debts in the future are not a substitute for “a meaningful track record” of debt resolution. ISCR Case No. 08-12184 at 10 (App. Bd. Jan. 7, 2010). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. The presence of terrorist activity in a foreign country is a significant factor in Guideline B cases. See, e.g., ISCR Case No. 12-12172 at 4 (App. Bd. Jan. 9, 2014). In addition, the Judge’s conclusions about a paucity of evidence in mitigation of the concerns under both Guidelines reflect a reasonable interpretation of the record that was before him. “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