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ISCR Case 16-01423.a1 — CASE

ISCR Case 16-01423.a1denied

Case Headnote

ISCR Case No. 16-01423.a1

Oct 25, 2018· Hon. Charles C. Hale· appeal

Summary

The applicant, an Iraqi-born U.S. citizen, was denied a security clearance primarily under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from concerns regarding financial support provided to relatives in Iraq, which raised disqualifying conditions B2 and B3 related to foreign influence.

The judge determined that this financial support created a heightened risk of foreign pressure. Further concerns included the applicant's limited connections within the U.S. and the absence of a permanent residence. While mitigating conditions E2 and E3 were applied, and favorable evidence regarding the applicant's service to the U.S. was presented, it was ultimately deemed insufficient to offset the risks associated with his foreign ties.

Consequently, the judge concluded that the risks posed by the applicant's foreign connections outweighed the favorable evidence, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

B2raisedForeign Contacts and Activities
B3raisedFinancial Considerations

Mitigating

E2appliedThe Applicant Has Not Engaged in Criminal Conduct
E3appliedThe Applicant Has Demonstrated Good Conduct

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 issuedJun 22, 2016
Answer filed—
Hearing heldAug 2, 2018
Decision dateOct 25, 2018

Cite For

Heightened Risk of Foreign Pressure Due to Financial Support Under Guideline B
Insufficient Mitigation of Foreign Influence Concerns Despite Favorable Evidence
Importance of National Security Considerations in Clearance Determinations

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 personal conduct concerns. 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 not contrary to law.

Appealed bythe applicant

Applicant representationAttorney

Judge belowShari Dam — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

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 adverse decision, which was not arbitrary or capricious.

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

James E. Moody
James F. Duffy
Charles C. Hale

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 E DIGEST: Applicant’s parents and three of his siblings are citizens and residents of Iraq. None of these relatives are affiliated with the Iraqi government. Applicant has sent between $200 and $500 to his parents eight or nine times, and he has sent his siblings money as well. Adverse decision affirmed. CASENO: 16-01423.a1 DATE: 10/25/2018 DATE: October 25, 2018 In Re: -----------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01423

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 22, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 2, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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 favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant was born in Iraq, coming to the U.S. in the late 2000s. He worked at various jobs and attended college for a while. He has also worked for the U.S. military. He visited his family in Iraq in 2012 and became a U.S. citizen a few years later. In his current job he has deployed to Iraq in support of U.S. objectives, and a military officer commended his duty performance and described him as “one of the best.” Decision at 3. Applicant’s parents and three of his siblings are citizens and residents of Iraq. None of these relatives are affiliated with the Iraqi government. Applicant spoke with his mother about three times in 2017 and once this year. He does not speak with his father at all, and he communicates with his siblings occasionally. Applicant has sent between $200 and $500 to his parents eight or nine times, and he has sent his siblings money as well. Applicant has about $55,000 in a U.S. bank, owns no property in this country, and has no assets in Iraq. Numerous terrorist groups are active in Iraq. The Islamic state controls some of the country’s territory. The U.S. State Department warns U.S. citizens to avoid traveling to Iraq. There are also human rights violations in that country. The Judge concluded that Applicant’s Iraqi relatives and his financial assistance to them creates a heightened risk of foreign pressure as well as a possible conflict of interest. She found Applicant’s favorable evidence to be insufficient to outweigh the concerns arising from his foreign relatives. In the whole-person analysis, the Judge cited to evidence of Applicant’s services to the U.S. and his professed loyalty to this country. However, she concluded that Applicant’s limited connections in the U.S., his lack of a permanent residence here, and his financial support to his foreign relatives outweigh his favorable evidence.

DISCUSSION

Applicant argues that the Judge failed to consider all of the evidence in the record, for example: his history of assistance to the U.S., his family’s lack of formal connection with the Iraqi government, his various ties within the U.S., and what he characterizes as the relatively limited nature of his financial support to his Iraqi relatives. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to show that she weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-02145 at 3 (App. Bd. Sep. 10, 2018). We give due consideration to the case that Applicant has cited in his brief. However, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. Each case must be decided on its own merits. Id. The Judge examined the relevant evidence 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board