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ISCR Case 12-05512.a1 — CASE

ISCR Case 12-05512.a1denied

Case Headnote

ISCR Case No. 12-05512.a1

Jan 12, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 49-year-old defense contractor, originally from Nigeria, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The appeal board upheld the denial, specifically citing the applicant's close familial ties in Nigeria and the potential for foreign exploitation.

Under Guideline B, the board found that the applicant's familial connections in Nigeria raised significant security concerns, aligning with disqualifying conditions 7(a) and 7(b). Despite the applicant's claims of limited contact and financial support to family members, these arguments were not deemed sufficient to mitigate the foreign influence concerns.

The applicant's appeal was denied because they failed to demonstrate that the judge's initial conclusions were arbitrary or contrary to law. The board determined that the applicant's arguments did not adequately rebut the presumption that the judge had considered all presented evidence, leading to the affirmation of the security clearance denial.

Conditions Referenced

Disqualifying

7(a)raisedContact with Foreign Family MembersThe applicant's close relationships with relatives in Nigeria create a heightened risk of foreign exploitation.
7(b)raisedPotential Conflict of InterestThe applicant's connections to family in Nigeria could create a potential conflict of interest.

Mitigating

8(e)rejectedPrompt Compliance with Reporting RequirementsThe judge is not required to explicitly discuss all potentially applicable analytical factors.

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 issuedApr 22, 2015
Answer filed—
Hearing heldOct 14, 2016
Decision dateJan 12, 2017

Cite For

Security Concerns Related to Familial Ties Under Guideline B
The Presumption That Judges Consider All Evidence in Their Decisions
The Standard for Granting Security Clearances in Relation to National Security Interests.

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline F (Financial Considerations) and Guideline B (Foreign Influence). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline 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 considered all relevant evidence and did not reach conclusions in an arbitrary or capricious manner. The applicant failed to demonstrate any harmful error in the Judge's decision.

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
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 F; Guideline B DIGEST: Applicant’s arguments are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASE NO: 12-05512.a1 DATE: 01/12/2017 DATE: January 12, 2017 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-05512

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 April 22, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 14, 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 issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s formal findings in favor of Applicant under Guideline F were not raised as an issue on appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is a 49-year-old employee of a defense contractor. He was born in Nigeria and earned a bachelor’s degree in that country. He immigrated to the United States in 2000 and became a U.S. citizen in 2006. He married in 2002, has a divorce pending, and has a 10-year-old son. Applicant’s mother is a Nigerian citizen who resides with him in the United States. She became a permanent U.S. resident in 2016. He has a sister and brother who are citizens and residents of Nigeria. His brother is handicapped and is supported by rental income from family properties. His sister works for a bank, manages the rental properties, and takes care of their handicapped brother. His sister attempted to enter the United States, but was denied entry. Applicant has a history of providing financial support to family and friends in Nigeria, which included providing his sister about $3,000 during a six month period in 2013-2014. Applicant’s uncle is a citizen and resident of Nigeria. Applicant’s mother supported the uncle, including paying for his college education. The uncle lent Applicant money to immigrate to the United States. Applicant considers his uncle to be loyal to his mother. He claims he is not close to his uncle and communicates with him about two or three times a year. Since immigrating to the United States, Applicant has visited Nigeria only once to attend his father’s funeral. His father owned two apartment buildings, one has five units and the other four units. His handicapped brother lives in one unit. Applicant has no idea of the value of these properties. He claims he has no property or financial interests in Nigeria, but admitted the apartment buildings were left to his father’s succession. He also claimed that he has no significant contact with friends or other relatives in Nigeria. He has two brothers who live in the United States. Nigeria is a federal republic that faces many challenges, including terrorist activity, sectarian conflicts (ethnic, regional, and religious), entrenched corruption, and widespread mistrust of the government. Nigerian police and security forces had been accused of serious human rights abuses. Boko Haram, a U.S.-designated terrorist organization in northern Nigeria with ties to Al Qaeda, has increased its attacks against state and civilian targets, which included the abduction of almost 300 schoolgirls in 2014. The security situation in Nigeria is fluid and unpredictable. The Judge’s Analysis Applicant, directly or through his mother and siblings, has frequent contact and a close relationship of affection with relatives in Nigeria. The presence of his relatives in Nigeria creates a heightened risk of foreign exploitation under disqualifying condition 7(a)1 and potential conflict 1 Directive, Enclosure 2 ¶ 7(a) states, “contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of of interest under disqualifying condition 7(b).2 Considering the security situation in Nigeria, Applicant has not met his burden of showing there is little likelihood his foreign relatives could create risk of foreign influence or exploitation.

DISCUSSION

Applicant asserts that the Judge failed to consider relevant evidence that detracted from his findings. For example, he argues that he has casual contact with his relatives in Nigeria, those relatives do not live in a region where terrorist activities occur, and his relationships with them are unlikely to put him in a compromising circumstance. The Judge, however, made findings related to many of those matters. Applicant’s arguments are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-02930 at 3 (App. Bd. Dec. 9, 2015). Applicant contends that the Judge failed to give him credit under mitigating condition 8(e), i.e., the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country. He points out that he disclosed his foreign contacts in his security clearance application and during his background interview.3 However, a judge is not required explicitly to discuss all of the potentially applicable analytical factors set forth in the Directive, which includes the disqualifying conditions, mitigating conditions, and whole-person factors. ISCR Case No. 14-06135 at 2 n.1 (App. Bd. Jun. 15, 2016). In this regard, the key issue is whether the omission of a discussion of an analytical factor results in a judge’s rulings or conclusions being arbitrary, capricious, or contrary to law. Considering the record, we find no reason to conclude the Judge’s analysis was deficient in this regard. Applicant has failed to identify any harmful error. 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.” foreign exploitation, inducement, manipulation, pressure, or coercion[.]” 2 Directive, Enclosure 2 ¶ 7(b) states, “connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligations to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information[.]” 3 Applicant’s security clearance application and summary of his background interview were included in the record. As noted above, the Judge is presumed to have considered all record evidence.

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