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ISCR 14-03347.a1: Guideline B security clearance appeal, denied (2016) · CASE

ISCR Case 14-03347.a1denied

Case headnote

ISCR Case No. 14-03347.a1

May 27, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, originally from Egypt, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) due to concerns about his close ties to his parents in Egypt. The applicant maintained regular contact with his parents, which raised a disqualifying condition under Guideline B, indicating a risk of foreign exploitation. Additionally, the applicant failed to provide evidence regarding his parents' potential connections to or dependency on the Egyptian government, further contributing to the foreign influence concerns.

While the applicant claimed allegiance to the U.S. and attempted to sever foreign ties, the judge found these efforts insufficient to mitigate the risks. Specifically, the judge concluded that the applicant's ties to the U.S. were not strong enough to offset the risks posed by his family in Egypt.

The appeal board affirmed the denial, emphasizing the paramount importance of national security interests. The decision highlighted the applicant's inability to adequately address the disqualifying conditions related to foreign influence and preference, leading to the ultimate denial of his security clearance.

Conditions referenced

Disqualifying

C1raisedForeign Preference
B2raisedForeign Influence

Mitigating

B8rejectedMitigating Condition 8The judge did not find sufficient evidence that the applicant's parents would be moving to the U.S. soon.

Key rule quoted

“"Absent a showing that an applicant was denied a reasonable opportunity to prepare for the hearing or was denied a reasonable opportunity to present evidence on his or her behalf, an applicant is not entitled to receive a new hearing just so the applicant can have another chance to present his or her case."”
ADP Case No. 06-15508 at 2 (App. Bd. Sep. 21, 2007)

Procedural posture

SOR issuedAug 28, 2014
Answer filed—
Hearing heldFeb 29, 2016
Decision dateMay 27, 2016

Cite for

Denial Based on Foreign Influence Due to Familial Ties
Insufficient Evidence to Mitigate Foreign Preference Concerns
Importance of National Security in 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 seeking a security clearance who was denied based on foreign influence and preference concerns. The applicant argued that the Judge failed to consider mitigating factors regarding his parents' potential immigration to the U.S. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant contends that the Judge failed to consider properly a mitigating factor regarding his parents' imminent arrival in the U.S.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge's 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 that the applicant did not demonstrate any harmful error in the Judge's analysis or conclusions.

Standard of review applied

No new evidence on appealNo de-novo re-decisionSubstantial-evidence reviewArbitrary-and-capricious review

Appeal Board panel

Michael Ra’anan (Chair)
James E. Moody
James F. Duffy

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 C; Guideline B DIGEST: Applicant argues that the case should be remanded for the Judge to consider the imminent arrival of his parents in the US. Applicant has asked for a remedy not available to him. The Board is authorized to remand a case to correct identified error. A request to consider new evidence does not constitute the correction of an error. Absent a showing that an applicant was denied a reasonable opportunity to prepare for the hearing or was denied a reasonable opportunity to present evidence on his or her behalf, an applicant is not entitled to receive a new hearing just so the applicant can have another chance to present his or her case. Adverse decision affirmed. CASENO: 14-03347.a1 DATE: 05/27/2016 DATE: May 27, 2016 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03347

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Thomas G. Coale, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 28, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 29, 2016, 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 issues on appeal: (1) whether the Judge failed to appropriately consider a mitigating factor and (2) 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 and raised in Egypt. He received a bachelor’s degree from an Egyptian university. He entered the United States in 2000 and because a U.S. citizen in 2013. He has never been married and has no children. He earned a doctorate degree from a U.S. university. He was hired by his current employer, a federal contractor, in 2013. Once Applicant became a U.S. citizen, he no longer used his Egyptian passport to travel. In 2014, he surrendered his Egyptian passport to his facility security officer with the understanding that it would not be returned to him. He also expressed a willingness to renounce his Egyptian citizenship. Applicant’s parents are citizens and residents of Egypt. His parents are in their late 60sand he maintains regular contact with them. In 2015, Applicant submitted an application for his parents to become permanent residents of the United States. The application was accepted and was being processed. His sister is a student at a U.S. university and has applied to become a permanent resident of the United States. Applicant claimed all of his financial interests are in the United States. After becoming a U.S. citizen, Applicant has had no contact with the Egyptian government. He stated that his allegiance is to the United States and that he has no allegiance to Egypt or any other foreign country. Egypt is a key partner with the United States in ensuring regional stability in the Middle East. It has experienced political and social unrest. It is a potential operating environment for criminal and terrorist groups. Human rights abuses are rampant there. The Judge’s Analysis The Judge concluded that Applicant mitigated the foreign preference concerns. He noted Applicant’s sister was a citizen of Egypt even though she currently resides in the United States. The Judge concluded that, because Applicant had frequent contact and a close relationship with his parents, those contacts created a risk of foreign exploitation and a potential conflict of interest. The Judge remarked that Applicant presented little evidence about his parents’ prior employment, their possible connections to the Egyptian government, their ownership of property in Egypt, and whether they were dependent on the Egyptian government for their support and medical care. He concluded that the record evidence failed to support a determination that Applicant’s ties and sense of obligation to the United States are sufficiently strong that he could be expected to resolve any conflict of interest in favor of the United States.

DISCUSSION

Applicant contends that the Judge failed to consider properly Foreign Influence mitigating condition 8(a)1 because his parents would be moving to the United States in the near future. At the time of the hearing, Applicant’s parents had applied to become permanent residents of the United States.2 No evidence was presented at the hearing to show their applications were approved or that they were moving to the United States. Information about them moving to the United States constitutes new evidence, which the Appeal Board cannot receive or consider. See Directive ¶ E3.1.29. Applicant also argues that the Judge had no basis to conclude that Applicant presents a security risk due to having family in Egypt. This argument essentially amounts to a disagreement with the Judge’s weighing of the evidence, which is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06634 at 2 (App. Bd. Apr. 28, 2016). Applicant further argues that the case should be remanded for the Judge to consider the imminent arrival of his parents in the United States. Applicant has asked for a remedy not available to him. The Appeal Board is authorized to remand a case to correct identified error. Directive ¶ 1 Directive, Enclosure 2 ¶ 8(a) states, “the nature of the relationship with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States.” 2 Applicant’s Exhibits C and D reflected that applications were submitted for Applicant’s parents to become permanent residents of the United States, but the applications were not complete. Applicant’s parents were also pending an interview at the U.S. Embassy in Cairo. See the transcript at 22-23. E3.1.33.2. A request to consider new evidence does not constitute the correction of an identified error. “It is well settled that ‘absent a showing that an applicant was denied a reasonable opportunity to prepare for the hearing or was denied a reasonable opportunity to present evidence on his or her behalf, an applicant is not entitled to receive a new hearing just so the applicant can have another chance to present his or her case.’” ADP Case No. 06-15508 at 2 (App. Bd. Sep. 21, 2007) (citing ISCR Case No. 04-01047 (App. Bd. Oct. 20, 2005)). Compare ISCR Case 00-0250 at 4 (App. Bd. Feb. 13, 2001) (“If the Board were to grant Applicant’s request for a new hearing or allow her to submit new evidence in this case, then the Board would be giving her special treatment and denying other, similarly-situated applicants of their right to receive the fair, impartial, and even-handed application of Executive Order 10865 and the Directive.”) 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board