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ISCR 15-05289.a1: Guideline B security clearance appeal, denied (2017) · CASE

ISCR Case 15-05289.a1denied

Case headnote

ISCR Case No. 15-05289.a1

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

Summary

A U.S.-born applicant was denied a security clearance under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The denial was primarily based on two disqualifying conditions: the applicant's mother is an illegal immigrant, and the applicant had unresolved financial debts.

Specifically, the applicant's financial instability was evidenced by a delinquent credit card debt and an outstanding payday loan. These issues raised concerns under Guideline F. The mother's illegal immigration status, on the other hand, triggered foreign influence concerns under Guideline B.

While mitigating conditions AG ¶ 20(d) and AG ¶ 20(c) were considered, they were insufficient to overcome the identified security risks. The judges ultimately concluded that the combination of the applicant's financial situation and familial ties presented a potential risk to national security, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 6raisedForeign Influence
AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant has not taken sufficient action to resolve his debts.
AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant's financial situation remains unmitigated.

Key rule quoted

“A clearance decision may be based not only on conduct but also upon circumstances unrelated to conduct.”
Department of the Navy v. Egan, 484 U.S. 518, 528-529 (1988)

Procedural posture

SOR issuedMar 25, 2016
Answer filed—
Hearing heldOct 19, 2016
Decision dateJan 12, 2017

Cite for

Foreign Influence Concerns Due to Family Immigration Status
Unresolved Financial Issues as a Basis for Clearance Denial
The Relationship Between Conduct and 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 foreign influence and financial considerations. The applicant argued that the decision was arbitrary and capricious due to his mother's immigration status and his financial debts. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline F

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 that the applicant's arguments did not demonstrate any harmful error in the Judge's findings or conclusions.

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 B; Guideline F DIGEST: A clearance decision may be based not only on conduct but also upon circumstances unrelated to conduct. The mere existence of foreign family members is well established as a possible basis for a security clearance denial. Adverse decision affirmed. CASE NO: 15-05289.a1 DATE: 01/12/2017 DATE: January 12, 2017 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-05289

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 25, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 19, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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 and Analysis Applicant was born in the United States. His mother, who resides with him, was born in Mexico and came to the United States illegally in the 1980s. He supports her financially. She has never taken any steps to gain legal immigration status in the United States. He and his mother have no contact with anyone in Mexico. In her Guideline B analysis, the Judge noted, “Applicant is in a unique situation where he could be a target to Mexican nationals and subjected to coercion or blackmail if his mother were subjected to deportation or other threats of harm.” Decision at 6. The Judge found against Applicant on a delinquent credit card debt in the approximate amount of $2,161 that remains unresolved. He made his last payment on that debt in 2009 and has not had any contact with the creditor since 2013. He stated that he plans to pay this debt. The Judge also found against Applicant on a payday cash advance loan in the approximate amount of $300 that remains unresolved. The Judge found in favor of Applicant on the four other Guideline F allegations.1 The Judge noted that Applicant has not started the process of resolving his debts, that he brings in more income than he spends but lives paycheck to paycheck, and that he has not shown an ability to pay all of his delinquent debts and live within his means. The Judge concluded his history of financial indebtedness has not been mitigated.

DISCUSSION

In his appeal brief, Applicant acknowledged that his mother is an illegal alien in the United States and stated, “. . . I feel that the decision to not give me a security clearance was mainly influenced by her status and not by my own actions.” We construe this comment to mean that he believes the Judge’s conclusion under Guideline B is unfair because it was not based upon his conduct. As the Supreme Court stated in Department of the Navy v. Egan, 484, U.S. 518, 528-529 (1988), a clearance decision may be based not only on conduct but also upon circumstances unrelated to conduct. The mere existence of foreign family members is well established as a possible basis for a security clearance denial. Directive, Enclosure 2 ¶¶ 6 and 7. It also merits noting that the Government is not required to provide direct evidence of a nexus between an applicant’s circumstances and the pertinent security concern. The Directive presumes a nexus or rational connection between proven conduct under any Guideline and an applicant’s security eligibility. See, e.g., ISCR Case No. 09-07565 at 3 (App. Bd. Jul. 12, 2012). Applicant also argues that the denial of his security clearance was unfair because his “only fault” was having a small debt that he was currently working on a plan to pay off. Of note, nothing in Guideline F indicates that there is any particular threshold amount of delinquent or otherwise resolved debts that must be reached before an applicant’s financial difficulties raise a security 1 The Judge found that a collection account for about $180 remained unresolved, but made a formal finding in favor of Applicant on that debt. concern. See, e.g., ISCR Case No. 02-10168 at 4 (App. Bd. Aug. 1 2003). Applicant’s arguments concerning his financial problems amount to a disagreement with the Judge’s weighing of the evidence, which is not 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. 14-06440 at 4 (App. Bd. Jan. 8, 2016). The lack of any action to resolve some of the alleged debts over a significant period was a sufficient basis for the Judge’s determination that the security concerns arising from Applicant’s financial problems remained unmitigated. Applicant has failed to identify any harmful error. “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, supra, at 528. 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