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ISCR Case 13-00375.a1 — CASE

ISCR Case 13-00375.a1denied

Case Headnote

ISCR Case No. 13-00375.a1

Mar 28, 2014· 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 unmitigated concerns regarding his familial ties in Afghanistan. The applicant's siblings and a sibling-in-law reside in Afghanistan, which the security clearance board determined posed a risk of coercion or duress.

Despite evidence of the applicant's good character and service, the board found that he failed to mitigate the disqualifying conditions related to his foreign ties. The appeal board affirmed the denial, specifically citing the heightened risk of coercion or duress from his Afghan relatives.

The appeal board's decision acknowledged an error in the initial assessment regarding the exact number of siblings but concluded that this error did not alter the overall finding that the applicant's foreign ties presented an unacceptable security risk. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign InfluenceThe applicant's siblings and sibling-in-law reside in Afghanistan, creating a heightened risk of coercion.

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 1, 2013
Answer filed—
Hearing held—
Decision dateMar 28, 2014

Cite For

Heightened Risk of Coercion Due to Foreign Family Ties Under Guideline B
Harmless Error in Findings of Fact Regarding Number of Foreign Relatives
Rebuttable Presumption of Ties to Foreign In-laws 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 based on security concerns related to foreign influence due to his siblings residing in Afghanistan. The applicant argued that the Judge made factual errors regarding the number of siblings living in Afghanistan. The Board affirmed the decision, finding the error harmless and the overall decision supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

Erroneous finding of fact — raised by the applicantError found, but harmless
The Judge erred in stating that Applicant had three siblings living in Afghanistan.

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 error regarding the number of Applicant's siblings was harmless and did not affect the overall decision. The Judge's conclusions regarding security concerns under Guideline B were supported by substantial evidence.

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
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 Jude error regarding Applicant’s sibling is ultimately harmless in the context of the overall decision. Adverse decision affirmed. CASENO: 13-00375.a1 DATE: 03/28/2014 DATE: March 28, 2014 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 13-00375

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 1, 2013, 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 decision on the written record. On January 23, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Philip S. Howe 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 Afghanistan. He came to the U.S. in the late 1980sand was naturalized a U.S. citizen in the mid-1990s. He works for a Defense contractor. He is married and has four children. His wife and children are all U.S. citizens, either by birth or by naturalization. Applicant has three living siblings, all of whom are citizens and residents of Afghanistan. The SOR alleged that two siblings live in Afghanistan, but Applicant’s security clearance application (SCA) lists three. He also has a sibling-in-law who is a citizen and resident of that country. He speaks with his Afghan siblings every two months. Applicant enjoys an excellent reputation for his duty performance, integrity, and hard work. He submitted six certificates of service and/or appreciation from military organizations for his work in support of U.S. interests. Although Afghanistan has a democratic government, terrorists operate and assert power within its borders. It has a poor human rights record. Insurgents plan attacks and kidnappings of Americans and other Western nationals. No section of Afghanistan is immune from violence. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raise security concerns under Guideline B, in that the Afghan residence of his siblings and sibling-in-law create a heightened risk that, through them, he could be subjected to coercion or duress if they became targets of terrorist activity. In concluding that Applicant had failed to mitigate these concerns, the Judge stated that Applicant could foreseeably be placed in a position of having to choose between the interests of his relatives and those of the U.S. Although he noted evidence that Applicant’s wife and children live with him in the U.S., he stated that there was no evidence in the record of other connections within this country to counterbalance his familial ties within Afghanistan. He also stated that Applicant’s contact with his foreign relatives is neither casual or infrequent. In the whole person analysis, the Judge noted the risk of terrorism in Afghanistan, stating that terrorists could attempt to use Applicant’s relatives to obtain classified information.

DISCUSSION

Applicant contends that the Judge erred in stating that he had three siblings living in Afghanistan, asserting that the evidence shows that he has only two in that country, plus his in-law. We examine a Judge’s findings to see if they are supported by substantial record evidence, that 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 same record.” See ISCR Case No. 10-06089 at 2 (App. Bd. Sep. 11, 2013), quoting Directive ¶ E3.1.32.1. In this case, Applicant’s argument is persuasive. His SCA lists three siblings, but one of them lives in a European country. The SCA, and other record evidence, list only two siblings who are citizens and residents of Afghanistan. This finding, therefore, is erroneous. However, even if the Judge had not made this error, it is not likely that his overall decision would have been different. Therefore, this error is harmless. Applicant cites to favorable evidence, such as the letters of recommendation he submitted. The Judge made findings about Applicant’s favorable evidence and discussed it in his analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 12-01977 at 2 (App. Bd. Dec. 30, 2013). 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). There is a rebuttable presumption that a person has ties of obligation or affection to foreign in-laws. See, e.g., ISCR Case No. 10-07436 at 6 (App. Bd. Oct. 19, 2011). “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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed; James E. Moody James E. Moody Administrative Judge Member, Appeal Board