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ISCR Case 14-04993.a1 — CASE

ISCR Case 14-04993.a1denied

Case Headnote

ISCR Case No. 14-04993.a1

Jul 10, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A 46-year-old U.S. citizen, originally from India, was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed from significant family ties and financial interests the applicant maintained in India. These factors raised concerns about potential foreign influence, specifically citing Disqualifying Condition B1.

While the applicant asserted loyalty to the U.S. and provided financial support to his family in India, the appeal board found these insufficient to mitigate the security concerns. The applicant admitted all allegations in the Statement of Reasons and failed to provide adequate evidence to rebut the presumption of a nexus between his foreign ties and security eligibility.

Ultimately, the appeal board upheld the denial, concluding that the applicant did not successfully apply any mitigating conditions, such as B3, to overcome the established foreign influence concerns.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B3appliedMitigation by U.S. AssetsThe value of the applicant's U.S. assets is significantly greater than his assets in India.

Key Rule Quoted

“The Directive presumes a nexus between admitted or proven conduct or circumstances under any guideline and an applicant’s security eligibility.”

Procedural Posture

SOR issuedNov 3, 2014
Answer filed—
Hearing heldApr 23, 2015
Decision dateJul 10, 2015

Cite For

Presumption of Nexus Under Guideline B
Impact of Foreign Family Ties on Security Clearance
Mitigation of Foreign Influence by U.S. Asset Holdings

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 concerns under Guideline B. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

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 decision, maintaining a rational connection between the facts and the conclusion reached.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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 DIGEST: The Directive presumes a nexus between admitted or proven conduct or circumsyances under any guideline and an applicant’s security eligibility. Adverse decision affirmed CASENO: 14-04993.a1 DATE: 07/10/2015 DATE: July 10, 2015 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-04993

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 November 3, 2014, 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 hearing. On April 23, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge made the following findings: Applicant is 46 years old. He was born in India and came to the United States at the age of 28. He became a U.S. citizen in 2008. Applicant’s mother and father are citizens and residents of India. His father worked for a state government, but is now retired and gets a Social Security type pension from the Indian government. Applicant’s brother is a citizen and resident of India. Applicant’s two sisters are citizens and residents of India. Applicant also has several in-laws who are citizens and residents of India, one of whom works for the national railroad. Applicant has two bank accounts in India worth about $8,000. He uses one account to help his parents and sister-in-law and the other account to support a condo. The condo is under construction in India and is worth about $60,000. The value of the condo under construction pales in comparison to his $600,000 net worth in the United States. In 2008, India was reported as involved in criminal espionage and U.S. export controls enforcement cases. In a 2009-2011 report, Congress noted India as targeting sensitive U.S. economic information and technology. There have been numerous, recent criminal cases concerning export enforcement, economic espionage, theft of trade secrets, and embargo-related criminal prosecutions involving both the government of India, and private companies and individuals in India. The Judge concluded: Any concerns about Applicant’s real property interests in India are mitigated by the fact that the value of Applicant’s U.S. assets is about ten times the value of the assets he holds in India. However, in light of Applicant’s close and continuing family connections in India, the case is found against Applicant under the Foreign Influence Guideline. Applicant argues that the decision is unfair based on the fact that his family members are citizens of India and that he is providing direct financial support to them when needed. He states that he is a responsible father, employee, and citizen of the U.S. and would do no wrong against this country. He states that he has never participated in any wrongdoing, and he intends to make his future in the U.S., the country to which he is loyal.1 Applicant fails to establish error on the part of the Judge. Applicant’s arguments amount to a general assertion that the record does not raise concerns under Guideline B. We note that the Directive presumes a nexus, or rational connection, 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. 11-10255 at 4 (App. Bd. Jul. 28, 2014). In the case before us, Applicant admitted all of the SOR allegations and the Government produced substantial evidence of the allegations as well. Applicant’s argument is not sufficient to rebut the presumption of nexus. Given the totality of Applicant’s circumstances, we find no reason to disturb the Judge’s ultimate conclusion that the Government’s security concerns were not mitigated. In support of his appeal, Applicant cites to decisions by the Hearing Office, which he argues support his request for a favorable determination. The Board gives due consideration to these cases. However, each case must be decided on its own merits and Hearing Office decisions are binding neither on other Hearing Office Judges nor the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). Nothing contained in the decisions cited by Applicant establish that the Judge in this case committed error. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge 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 devotes a section of his brief to his real property interests in India, and indicates that if those property interests are the main reason for not granting him a clearance, he would be willing to divest himself of those holdings. The Judge found the concern raised by Applicant’s property interests in India mitigated by the extent of his holdings in the U.S.