CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-06788.a1 — CASE

ISCR Case 14-06788.a1denied

Case Headnote

ISCR Case No. 14-06788.a1

Oct 21, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A naturalized U.S. citizen, originally from Ukraine, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial was primarily based on the applicant's significant family ties in Ukraine, including a mother employed by a Ukrainian government organization and two brothers seeking U.S. residency.

A key factor in the denial was the applicant's unwillingness to renounce her Ukrainian citizenship, which raised concerns about potential vulnerability to coercion. The geopolitical instability in Ukraine, exacerbated by Russia's aggressive actions, further contributed to the security risk assessment.

While mitigating conditions under C1 were considered, disqualifying conditions under B2 were ultimately raised. The appeal board affirmed the denial, concluding that the applicant's connections and dual citizenship presented an unacceptable risk of foreign influence and preference, particularly given the ongoing geopolitical threats.

Conditions Referenced

Disqualifying

B2raisedForeign Influence

Mitigating

C1appliedForeign Preference

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 issuedJul 10, 2015
Answer filed—
Hearing heldMay 12, 2016
Decision dateOct 21, 2016

Cite For

Foreign Influence Concerns Under Guideline B
Vulnerability to Coercion Due to Family Ties Abroad
Impact of Geopolitical Instability 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 a denial of a security clearance based on concerns under Guideline B and C. The applicant argued that the Judge's findings were erroneous and that evidence was not properly considered. The Board affirmed the decision, finding no harmful error in the Judge's analysis or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider all evidence and weighed it arbitrarily.
Erroneous finding of fact — raised by the applicantRejected
Applicant claimed the Judge's findings of fact were erroneous regarding the number of her brothers.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's analysis was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings or analysis, affirming the decision based on substantial evidence and proper procedural compliance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

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 notes that she has only two brothers, rather than the three alleged in the SOR. The Judge’s findings and analysis refer only to two brothers, in accordance with the other evidence before him. His unfavorable formal finding under 2.cdoes not mean that he exaggerated the security significance of Applicant’s family connections in Ukraine, nor is there reason to believe that the wording of the SOR impaired Applicant’s ability to prepare her case for mitigation. Adverse decision affirmed.. CASENO: 14-06788.a1 DATE: 10/21/2016 DATE: October 21, 2016 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06788

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 July 10, 2015, 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 May 12, 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: whether the Judge’s findings of fact are erroneous; whether the Judge failed to consider all of the evidence; and whether the Judge weighed the evidence in a manner that 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 The Judge made the following findings pertinent to the issues raised on appeal: Applicant was born, raised, and educated in Ukraine. She came to the U.S. in the early 2000s, marrying a U.S. citizen at that time. She became a naturalized citizen in the late 2000sand has worked for a Federal contractor since 2008. Applicant’s mother is a Ukrainian citizen who is a resident alien of the U.S. She divides her time between Ukraine and this country. She worked for a Ukranian government organization. Applicant’s father receives a government pension and spends his entire time in Ukraine. The mother has applied for resident alien status for Applicant’s two brothers, which was pending as of the close of the record. The brothers plan to move to the U.S. as soon as they receive their green cards. The older brother was at one time a social worker for the government and currently works in a Ukranian industry. The younger brother lives in another European country and works for a U.S. corporation. Applicant communicates with her parents several times a week. In 2012, Applicant stated to a clearance investigator that she was not willing to renounce her Ukranian citizenship or surrender her Ukrainian passport. She was concerned that, were she to surrender her citizenship, she would not be permitted to reapply for it at a later date. In January 2016, Applicant surrendered her Ukrainian passport to her facility security officer. Russia recently seized the Crimean peninsula in response to actions of the Ukrainian parliament in establishing a new government. Russia has been accused of orchestrating attacks by separatist factions, and there have been human rights abuses resulting from Russian occupation of Crimea. Russia has continued to supply heavy weapons to separatists, and Ukrainian security is under threat. Separatist groups have kidnapped foreigners, including U.S. citizens. Russia is an aggressive collector of U.S. proprietary information. It is “one of the most capable and persistent intelligence threats and aggressive practitioner of economic espionage against the U.S.” Decision at 5. This is a growing threat to U.S. security. The Judge’s Analysis The Judge entered favorable findings under Guideline C. In resolving the Guideline B allegations against Applicant, the Judge cited to evidence of her close family ties in Ukraine and her frequent contact with them, circumstances that render her vulnerable to coercion. He also noted that Applicant was not willing to renounce her Ukrainian citizenship and only recently surrendered her passport to her facility security officer. Given Ukraine’s instability, Russia’s support for separatists in that country, and the governmental jobs held by some of her family members at one time or another, the Judge concluded that Applicant had not mitigated the Guideline B concerns.

DISCUSSION

Applicant’s brief includes matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. Applicant notes that she has only two brothers, rather than the three alleged in SOR ¶ 2.c. In fact, the Judge’s findings and analysis refer only to two brothers, in accordance with Applicant’s SOR response and the other evidence before him. His unfavorable formal finding under 2.cdoes not mean that he exaggerated the security significance of Applicant’s family connections in Ukraine, nor is there reason to believe that the wording of the SOR impaired Applicant’s ability to prepare her case for mitigation. See, e.g., ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014). Applicant cites to record evidence, e.g., that her brothers are seeking to become permanent U.S. residents and that her mother splits her time between Ukraine and this country. She also points to her having surrendered her passport. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 14-05795 at 2 (App. Bd. Apr. 26, 2016). The Judge made findings about the evidence that Applicant mentions in her brief and included much of it into his analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. Neither has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06686 at 2 (App. Bd. Apr. 27, 2016). 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