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ISCR Case 15-01024.a1 — CASE

ISCR Case 15-01024.a1denied

Case Headnote

ISCR Case No. 15-01024.a1

Feb 24, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 36-year-old U.S. citizen, originally from Colombia, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial was based on her close family ties in Colombia and her possession of a Colombian passport.

The appeal board affirmed the denial, citing a heightened risk of foreign exploitation due to her connections. Her possession of a Colombian passport was seen as indicating a preference for Colombia over the United States.

Ultimately, the applicant did not present sufficient evidence to mitigate the security concerns raised by these factors, leading to the denial of her security clearance.

Conditions Referenced

Disqualifying

7(a)raisedContact 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 Foreign Exploitation, Inducement, Manipulation, Pressure, or Coercion.
7(b)raisedConnections to a Foreign Person, Group, Government, or Country That Create a Potential Conflict of Interest Between the Individual’s Obligation to Protect Sensitive Information or Technology and the Individual’s Desire to Help a Foreign Person, Group, or Country by Providing That Information.

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 issuedSep 27, 2015
Answer filed—
Hearing heldNov 30, 2016
Decision dateFeb 24, 2017

Cite For

Heightened Risk of Foreign Exploitation Due to Family Ties Under Guideline B
Foreign Preference Concerns Due to Possession of a Colombian Passport Under Guideline C
The Standard for Granting Security Clearance Must Align with 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 involved a denial of a security clearance based on foreign preference and foreign influence concerns. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and weighing of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended 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 that the Judge's weighing of the evidence was arbitrary or capricious. The applicant's arguments were deemed insufficient to overturn the 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 C; Guideline B DIGEST: Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. The balance of her arguments amount 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 is arbitrary, capricious, and contrary to law. CASE NO: 15-01024.a1 DATE: 02/24/2017 DATE: February 24, 2017 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-01024

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 September 27, 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 decision on the written record. On November 30, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Thomas M. Crean 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant, who is 36 years old, has worked for a defense contractor since 2009. She was born in Colombia, came to the United States on a student visa in 2005, and became a U.S. citizen in 2014. She has received an associate’s degree, bachelor’s degree, and master’s degree in the United States. She married a U.S. citizen in 2006 and has no children. Applicant’s mother, father, and brother are citizens and residents of Colombia. She has daily phone contact with her parents and has sent approximately $400 a month to her father for the past five years. She has another brother who is a dual citizen of Colombia and Canada and resides in Canada. She possesses a Colombian passport that was issued in 2008 and expires in 2018. She has not taken any steps to renounce her Colombian citizenship. Colombia is a democracy. It has experienced half a century of conflict with illegal armed groups, including Marxist guerillas and international criminal organizations involved in illegal drug trafficking. The U.S. has designated two Colombian groups, The Revolutionary Armed Forces of Colombia (FARC) and The National Liberation Army (ELN), as foreign terrorist organizations. In 2016, the Government of Colombia and FARC announced they reached a final peace accord after four years of negotiation. The ELN, however, continues to engage in terrorist activities and condemns any U.S. influence in Colombia. No one in Colombia is immune from kidnapping on the basis of occupation, nationality, or other factors. Colombia has a plan that seeks to re-establish state control and legitimacy in strategically important areas previously dominated by illegal armed groups. Colombia’s human rights problems include an ineffective judiciary, extrajudicial and unlawful killings, corruption due to the availability of drug trafficking funds, and societal discrimination. The Judge’s Analysis The Judge found that Applicant’s contacts with her family members in Colombia raised security concerns under disqualifying conditions 7(a)1 and 7(b),2 noting the existence of Marxist guerillas, the influence of strong organized crime gangs involved in international drug trafficking, and a poor human rights record in Colombia places on Applicant a heightened risk of exploitation, 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 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 obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information[.]” inducement, manipulation, pressure, or coercion. Applicant has close and continuing contacts with her immediate family members in Colombia. She did not present evidence that negated the heightened risk concerns and none of the mitigating conditions apply. Even though her family members appear to be ordinary citizens, the situation in Colombia is such that anyone living there is vulnerable to be exploited, pressured, or induced to provide protected information by guerillas and narco-terrorists. Applicant possesses a Colombian passport that does not expire for a few more years. She has not mitigated the foreign preference security concerns. Her dual citizenship and possession of a current Colombian passport shows there is a preference for Colombia over the United States and a potential divided loyalty to Colombia and the United States.

DISCUSSION

Applicant contends that the Judge did not consider all the evidence in the record. In arguing that her circumstances do not raise security concerns, she cites to, among other things, the location where her parents live in Colombia, their age, their occupations, her lack of property or professional affiliations in Colombia; her accomplishments in her career, and her value as a U.S. citizen. The Judge made findings about some of the evidence that Applicant has cited. She has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec 4, 2015). Contrary to Applicant’s assertions, we also conclude that the Judge’s whole person analysis satisfies the requirements of Directive in that the Judge evaluated Applicant’s security-significant circumstances in light of the entirety of the record evidence. See, e.g., ISCR Case No. 14-02806 at 4 (App. Bd. Sep. 9, 2015). The balance of Applicant’s arguments amount 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 is arbitrary, capricious, and contrary to law. See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Applicant has not identified any harmful error likely to change the outcome of the case. 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