Loading case…

ISCR 14-06675.a1: Guideline B security clearance appeal, denied (2016) · CASE

ISCR Case 14-06675.a1denied

Case headnote

ISCR Case No. 14-06675.a1

Mar 4, 2016· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, originally from Yemen, was denied a security clearance under Guideline B (Foreign Influence) due to concerns about potential coercion stemming from family ties in Yemen. The judge specifically cited the significant terrorist activity within Yemen as a basis for concern.

The denial was primarily driven by two disqualifying conditions under Guideline B. First, the applicant's close family connections in Yemen were seen as creating a potential vulnerability to coercion. Second, the applicant maintained close contact with family members who are well-known figures in Yemen, further raising security concerns.

Ultimately, the judge determined that these national security interests outweighed the applicant's personal circumstances and arguments. The security clearance was therefore denied.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

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 issuedMar 23, 2015
Answer filed—
Hearing heldDec 23, 2015
Decision dateMar 4, 2016

Cite for

Foreign Influence Concerns Under Guideline B
Potential for Coercion Due to Family Ties in a Foreign Country
National Security Interests Outweigh Personal Circumstances

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 was regarding the denial of a security clearance based on security concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and consistent with national security interests.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJames F. Duffy 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 denial of the security clearance, recognizing the potential for coercion due to the applicant's family connections in Yemen.

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 DIGEST: The Judge’s decision is a recognition that, despite his connections within the U.S., Applicant could be tempted or pressured to compromise classified information. One circumstance is the presence of close family members in a country where terrorists operate. Another is family members who are well-known and through whom he could come to the attention of forces that seek U.S. national secrets. The Judge’s decision is not a determination that he has acted disloyally or that he is lacking in character. The concern is not necessarily that his relatives might act against the U.S. Rather, it is that they could come to the attention of forces within Yemen that are hostile to the U.S. or otherwise seek classified information and through them he could be subjected to coercion. Adverse decision affirmed. CASENO: 14-06675.a1 DATE: 03/04/2016 DATE: March 4, 2016 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06675

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 March 23, 2015, 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 December 23, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy 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. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has worked for a Federal contractor since 2009. He was born in Yeman and came to the U.S. in the early 2000s. He became a U.S. citizen in the late 2000s. Applicant is married with two children. His wife and children are U.S. citizens by birth. While in Yeman, he was required to serve for one year in the military. Applicant avoided this responsibility by serving as an assistant to a relative who was a high ranking official in the Yemeni military. Registering under a military official’s name was an acceptable way to avoid active service. Applicant’s relative retired within the past few years. As a student in the U.S., Applicant received aid through the Yemeni government. He received bachelor’s and master’s degrees, student loans for which he has repaid. Applicant has registered for the U.S. selective service. Applicant’s parents and siblings are citizens and residents of Yemen. His father is a well- known member of his profession, who is separated from Applicant’s mother. Applicant speaks with his mother weekly and with his father every two or three months. One of Applicant’s siblings works for a government agency that is involved in security matters. His also has an in-law who works for the Yemeni government. Applicant has surrendered his Yemeni passport to his employer’s security officer. He has not used it for foreign travel since becoming a U.S. citizen. Applicant stated that his family was not close to the ongoing armed conflict in Yemen, although he later indicated that his mother heard airplane sounds and gunfire on a routine basis. Applicant enjoys a good reputation for the quality of his work performance and has completed numerous professional development programs. He is thought of as a family man who puts his children first. Applicant’s supervisor and a former supervisor believe that he is worthy of a clearance. A co-worker describes him as honest and trustworthy. The U.S. and Yemen have a strong partnership. However, terrorism and civil unrest are significant problems in Yemen, and, in January 2015, the President and cabinet resigned due to growing violence. A month later, the U.S. Embassy suspended operations in Sana’a, and the staff was temporarily relocated due to uncertainty caused by renewed violence. The Judge’s Analysis In concluding that Applicant had not rebutted security concerns arising from his connections in Yemen, the Judge noted the presence of terrorist activity and civil unrest in that country. He stated that Yemen’s unstable government and the presence within it of a violent insurgency made it conceivable that Applicant’s family could be vulnerable to coercion. In addition, the Judge cited to evidence that Applicant has close contact with his parents and siblings in Yemen, that his father is well-known, and that a sibling works for a government agency. The Judge acknowledged Applicant’s roots in the U.S. and his work history. However, he concluded that Applicant’s family contacts in Yemen could create a conflict of interest.

DISCUSSION

Applicant contends that the Judge’s decision to deny him a clearance is a challenge to his loyalty. However, an adverse adjudication is in no sense a conclusion that an applicant is disloyal or unpatriotic. Rather, it is a determination in terms of national security. Directive, Enclosure 1, SECTION 7. See also ADP Case No. 14-06346 at 3 (App. Bd. Oct. 28, 2015). In a case such as the one before us, the Judge’s adverse decision is a recognition that Applicant’s circumstances are such that, despite his connections within the U.S., he could be tempted or pressured to compromise classified information. One such circumstance is the presence of close family members in a country where terrorists operate. See, e.g., ISCR Case No. 05-03250 at 4-5 (App. Bd. Apr. 6, 2007). Another is family members who are well-known and through whom the applicant could come to the attention of forces that seek access to U.S. national secrets. See, e.g., ISCR Case No. 14-03112 at 4 (App. Bd. Nov. 3, 2015). Accordingly, the Judge’s decision is not a determination that Applicant has acted in a manner that shows disloyalty or that he is lacking in character. It is a recognition that even those who are patriotic and whose character has earned them high esteem could experience circumstances in which they could be tempted or pressured to help foreign relatives by compromising classified information. Applicant cites to evidence about his family members in Yemen, his personal history, the nature of his contacts with his mother and others, the nature of the Yemeni government, and the civil unrest in that country.1 He denies that his contacts with his mother and with other relatives poses a danger to national security. He also denies that his relatives know anything about his job or that they could jeopardize the interests of the U.S. Again, however, the concern is not necessarily that Applicant’s relatives might undertake actions that are hostile to the U.S. Rather, it is that they could foreseeably come to the attention of forces within Yemen that are hostile to the U.S. or that otherwise seek access to classified information and become a means through which Applicant could be subjected to coercion. Applicant’s arguments are not sufficient to show that the Judge failed to consider all of the evidence in the record. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). He has presented an alternative interpretation of the record, but that is not enough to show that the Judge weighed the evidence in as manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016). Applicant notes that his continued employment requires a security clearance. The Directive does not permit us to consider the impact that an adverse decision might have upon an applicant. See, e.g., ISCR Case No. 14-04202 at 4 (App. Bd. Dec. 24, 2015). Applicant’s brief refers to matters that are not found in the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. See also ISCR Case No. 14-03062 at 3 (App. Bd. Sep. 11, 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 he asks us to take notice of additional facts about that country, we conclude that even if such facts were supported by the missing exhibits they would not alter the outcome of the case. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 We note that the record in this case is not complete. Recently, we remanded a case where, as here, the record did not include documentary exhibits regarding the nature of the foreign country at issue. In the case before us, remand would serve no purpose. Applicant does not challenge most of the Judge’s findings about Yemen. To the extent that