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ISCR Case 14-02428.a1 — CASE

ISCR Case 14-02428.a1denied

Case Headnote

ISCR Case No. 14-02428.a1

Aug 25, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A naturalized U.S. citizen with family in Russia was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial was based on the applicant's close relationships and frequent contact with relatives residing in Russia, a country identified as engaging in aggressive intelligence practices against the U.S.

The appeal board affirmed the denial, citing the heightened risk of coercion or exploitation due to these foreign connections. Specifically, Disqualifying Condition AG B1, pertaining to foreign influence, was raised. While Mitigating Condition AG C1 was applied, it was insufficient to overcome the security concerns.

The decision emphasized that the applicant's close relatives in Russia and consistent communication with them presented an unacceptable risk, given Russia's known espionage activities. This combination of factors led to the ultimate denial of the security clearance.

Conditions Referenced

Disqualifying

AG B1raisedForeign ContactsThe applicant's close relatives in a country that practices espionage against the U.S. raised security concerns.

Mitigating

AG C1rejectedDual CitizenshipThe applicant's renunciation of Russian citizenship did not mitigate the concerns due to her family ties.

Key Rule Quoted

“A clearance adjudication is not a test of the applicant’s loyalty to the U.S.”

Procedural Posture

SOR issuedAug 8, 2014
Answer filed—
Hearing heldJun 12, 2015
Decision dateAug 25, 2015

Cite For

Heightened Risk of Coercion Due to Foreign Family Ties Under Guideline B
Nexus Between Foreign Contacts and Security Clearance Eligibility
Impact of Foreign Influence on 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 an applicant for a security clearance who was denied due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the applicant's close family ties in Russia created a heightened risk of exploitation.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the adverse decision, affirming that the applicant's circumstances presented a heightened risk of coercion due to her family ties in Russia.

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 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 C DIGEST: There is a nexus between admitted or proven conduct under any Guideline and an applicant’s eligibility for a clearance. A clearance adjudication is not a test of the applicant’s loyalty to the U.S. The loyalties addressed under Guideline B include those to family members in another country, not simply the country itself. Adverse decision affirmed. CASE NO: 14-02428.a1 DATE: 08/25/2015 DATE: August 25, 2015 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02428

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Gregory F. Greiner, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 8, 2014, 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 C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On June 12, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera 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 adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline C are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant, a naturalized U.S. citizen, works for a Government contractor. She was born, raised, and educated in Russia. Her father, sibling, and grandparent are citizens and residents of Russia. Applicant’s father used to work for a Russian publishing agency. She is estranged from him. She has a close relationship with her sibling, however, speaking with this person weekly over the phone or by emails. The grandparent is 90 years old and receives a pension from the Russian government. Applicant has contact with this person once or twice a month. Applicant has a U.S. born daughter and a U.S. born step-daughter, who is an adult. Claiming dual citizenship, she has traveled to Russia on a Russian passport. Recently, she renounced her Russian citizenship and returned her passport to the Russian embassy. Almost all of Applicant’s financial and property interests are in the U.S. She considers this country her home and intends to retire here. She is involved in various community activities. She enjoys as good reputation for her work ethic and her commitment to the U.S. Russian officials engage in electronic surveillance without proper authorization. Russia is an aggressive collector of U.S. proprietary information and advanced weapons technologies. It is one of the most capable and persistent intelligence threats against the U.S. Russia’s intelligence services attempt to exploit persons with family ties to Russia, offering financial inducements to citizens to encourage them to compromise classified information. The Judge’s Analysis The Judge resolved the Guideline C allegations in Applicant’s favor. In arriving at the opposite conclusion under Guideline B, the Judge noted Applicant’s close relatives who live in Russia and her frequent contact with them. He concluded that these contacts create a heightened risk of exploitation. In further concluding that Applicant had not mitigated the concerns arising from her Russian relatives, the Judge stated that Russia’s espionage practices against the U.S. militate against Applicant’s case for mitigation.

DISCUSSION

Applicant argues that the record does not support a conclusion that she could be placed in a conflict of interest or “in a compromising circumstance.”1 Appeal Brief at 8. The Directive presumes that there is a nexus between admitted or proven conduct or circumstances under any of the Guidelines and an applicant’s eligibility for a clearance. See, e.g., ISCR Case No. 12-01295 at 3 (App. Bd. Jan. 20, 2015). In this case, (1) Applicant’s having close relatives in a country that practices espionage against the U.S.; (2) her frequent contact with two of them; (3) Russia’s status as an aggressive collector of U.S. proprietary data; and (4) Russia’s practice of electronic surveillance support the Judge’s conclusion that Applicant’s circumstances present a heightened risk of coercion. Applicant’s appeal argument is not enough to rebut the presumption of nexus. Applicant argues that her relationship with her relatives is sufficiently casual that they do not pose a risk. However, given the frequency of her communications with her sibling and grandparent, and the Russian government’s practice of electronic surveillance, a reasonable person could conclude that these persons are a means through which Applicant could come to the attention of Russian intelligence operatives. Applicant’s argument on appeal is not enough to rebut the presumption that Applicant’s contacts are not casual. See, e.g., ISCR Case No. 14-02950 at 4 (App. Bd. May 14, 2015). 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 Ra’anan Michael 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’s brief notes that, under Guideline B, that “[F]oreign contacts . . . may be a security concern if the individual has divided loyalties[.]” Directive, Enclosure 2 ¶ 6. She argues that she has renounced her formal ties to Russia and centers her life in the U.S. To the extent that she construes the Judge’s decision as implying that she is disloyal to the U.S. or that she is loyal to Russia, we find nothing in it that would lead to that conclusion. Indeed, Directive, Enclosure 1, SECTION 7 explicitly provides that an adverse clearance decision is “in no sense . . .a determination as to the loyalty of the applicant concerned.” The loyalties referenced in Directive, Enclosure 2 ¶ 6 include those to family members in another country, not simply the country itself.