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ISCR 16-02061.a1: Guideline B security clearance appeal, denied (2018) · CASE

ISCR Case 16-02061.a1denied

Case headnote

ISCR Case No. 16-02061.a1

Sep 19, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, originally from Iraq, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial stemmed primarily from his close family ties remaining in Iraq, which the Appeal Board determined created a heightened risk of foreign pressure or exploitation.

Despite the applicant's service with U.S. forces and commendations for courage, the Board found that these familial connections were not sufficiently mitigated. Disqualifying conditions C1 and B2 were raised, while mitigating conditions B5 and C1 were considered but ultimately deemed insufficient.

The Board concluded that the applicant's connections to the U.S. were minimal and recent, further undermining his claims for mitigation. Additionally, his financial support to family members in Iraq raised potential conflicts of interest concerning sensitive information, leading to the final decision to deny the security clearance.

Conditions referenced

Disqualifying

C1raisedForeign Preference
B2raisedForeign Influence

Mitigating

B5rejectedMitigating Conditions for Foreign InfluenceThe applicant failed to establish sufficient mitigation regarding his family ties in Iraq.
C1notedMitigating Conditions for Foreign 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

Procedural posture

SOR issuedNov 29, 2016
Answer filed—
Hearing heldJul 11, 2018
Decision dateSep 19, 2018

Cite for

Heightened Risk of Foreign Pressure Due to Family Ties Under Guideline B
Insufficient Mitigation of Foreign Influence Concerns
Impact of Foreign Connections on Security Clearance Eligibility

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 an applicant whose security clearance was denied based on concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). 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 by the Judge.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDavid M. White denied the clearance

Decided ona hearing

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 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 decision, maintaining a rational connection between the facts found and the choice made.

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 C DIGEST: We gave due consideration to the Hearing Office case that Applicant has cited, but it is not binding precedent on the Appeal Board. The cited case is also distinguishable from this case because, among other matters, it involves a foreign country other than Iraq. Adverse decision affirmed. CASENO: 16-02061.a1 DATE: 09/19/2018 DATE: September 19, 2018 In Re: --------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02061

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 29, 2016, 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 July 11, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White 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 adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline C have not been raised as an issue on appeal. Consistent with the following, we affirm. The Judge’s Pertinent Findings of Fact Applicant was born in Iraq. From 2005 to 2007, he worked for U.S. forces in Iraq before coming to the United States on a special immigrant visa. From 2009 to 2012, he worked at a military installation in the United States. In 2013, he became a U.S. citizen. Shortly thereafter, he married an Iraqi citizen who came to the United States in 2016. She is a U.S. resident. They have one child born in the United States. Applicant has been employed by a defense contractor since 2015 and has been working again with U.S. forces in Iraq since 2016. Applicant’s parents and his spouse’s parents are citizens and residents of Iraq. He and his wife have close and regular contact with their parents. His father works for a company operated by the Iraqi Government. He has visited his parents in Iraq about five times between 2009 and 2016. He also has siblings who are citizens and residents of Iraq. None work for the Iraqi Government. He has provided significant financial support to his Iraqi family members over the years. Applicant served in sustained combat operations while working with U.S. forces, including enduring a personal assault and stabbing. “Senior military officers with whom he served wrote letters commending his courage, integrity, and trustworthiness in promoting their successful mission accomplishment. Applicant also received numerous citations commending his dedication and professional performance.” Decision at 3. Iraq faces many challenges including sectarian and ethnic divisions. Numerous terrorist groups and anti-U.S. sectarian militias are active throughout the country. Threats of kidnapping and violence are high, and the State Department warns U.S. citizens to avoid traveling to Iraq. Human rights abuses have also been noted there. The Judge’s Pertinent Analysis Applicant’s ongoing, close family connections in Iraq create a heightened risk of foreign pressure or attempted exploitation. Those relationships also create a potential conflict of interest between his obligation to protect sensitive information and his desire to help his family members in that country. “Applicant has demonstrated courage and compliance with U.S. security procedures in the face of significant personal risk arising from his collaboration with U.S. forces in Iraq. Under Appeal Board precedent, this weighs favorably in assessing his likelihood of resolving future conflicts in favor of U.S. interests. However, his other connections to the United States are minimal and recent, as evidenced by his reference to, ‘my country in Iraq,’ in his 2015 e-QIP. Accordingly, Applicant failed to establish mitigation with respect to those relationships under [applicable mitigating conditions].” Decision at 6.

DISCUSSION

Applicant contends the Judge failed to consider all of the record evidence, failed to apply all of the mitigating conditions, and failed to examine properly the whole-person concept. For example, he argues that his family relationships in Iraq are causal and that his conduct, particularly in light of the attack on him while working with U.S. forces, demonstrates his security clearance worthiness. The Judge, however, made findings of fact about, and analyzed, those matters. Applicant’s arguments are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-01717 at 4 (App. Bd. Jul. 3, 2017). We gave due consideration to the Hearing Office case that Applicant has cited, but it is not binding precedent on the Appeal Board. Id. The cited case is also distinguishable from this case because, among other matters, it involves a foreign country other than Iraq. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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 at 528. 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: 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.