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ISCR Case 16-02605.a1 — CASE

ISCR Case 16-02605.a1denied

Case Headnote

ISCR Case No. 16-02605.a1

Feb 26, 2018· Hon. James E. Moody· appeal

Summary

A 40-year-old male applicant with military service was denied a security clearance under Guideline B (Foreign Influence) due to family ties in Kyrgyzstan. The judge identified a heightened risk of foreign influence stemming from these connections, citing Disqualifying Condition AG B2.

Despite the applicant's assertions of minimal contact with his family and his efforts to facilitate their immigration to the U.S., the judge determined there was insufficient evidence to mitigate the concerns. While Mitigating Conditions AG B3 and AG B4 were considered, they were not applied effectively enough to overcome the identified risks.

Ultimately, the judge found that the applicant's arguments did not demonstrate the decision was arbitrary or capricious, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG B2raisedForeign Contacts and Interests

Mitigating

AG B3rejectedContact with Foreign Family Members Is MinimalThe judge found that the applicant's ties to family in Kyrgyzstan were significant.
AG B4rejectedThe Foreign Family Members Are Not Involved in Illegal ActivitiesThe judge determined that the applicant's family ties still posed a risk.

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 issuedNov 10, 2016
Answer filed—
Hearing heldNov 8, 2017
Decision dateFeb 26, 2018

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Family Ties on Security Clearance Eligibility
Standards for Evaluating Foreign Contacts in Security Clearance Cases

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 brought by the applicant after the Administrative Judge denied his request for a security clearance based on foreign influence concerns. The applicant argued that the Judge did not consider all evidence regarding his minimal contact with family in Kyrgyzstan and his immigration efforts. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge did not consider all of the evidence.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge did not err in her analysis of the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

James E. Moody
William S. Fields
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 DIGEST: Applicant contends that the Judge did not consider all of the evidence. He argues that he has minimal contact with his family members in Kyrgyzstan,and that he has applied for his wife and stepson to immigrate to the U.S. The Judge, however, made findings about those matters. Adverse decision affirmed. CASENO: 16-02605.a1 DATE: 02/26/2018 DATE: February 26, 2018 In Re: --------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02605

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 10, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 8, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello 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 Applicant, who is 40 years old, served in the military as an enlisted member and officer. He was charged in a nonjudicial punishment proceeding with adultery and other offenses. He was administratively separated with a general discharge under honorable conditions. Since approximately 2010, he has worked for Federal contractors in different countries. In 2012 and 2013, he worked in Kyrgyzstan. He currently works in a Middle Eastern country. In 2014, Applicant married for the third time. His wife was born in Russia and is a citizen and resident of Kyrgyzstan. She moved to Kyrgyzstan as a child, but has relatives in Russia. Applicant has a 10-year-old stepson who is a citizen and resident of Kyrgyzstan. Applicant believes that all parental rights between the natural father and his stepson have been terminated. Applicant and his wife also have a three-year-old son who is a citizen of the United States, but resides with his mother in Kyrgyzstan. Applicant’s wife works in a factory in Kyrgyzstan. He provides her regular financial support. He sees her twice a year for two or three weeks. His wife’s mother is a citizen and resident of Kyrgyzstan. She does not work for the government. Neither he nor his wife provide her mother any support. His wife and her mother have regular contact. Applicant has applied for U.S. immigration visas for his wife and stepson. Their I-130 petition, which is the first step in helping a relative immigrate to the U.S., was approved. His wife needs to submit additional paperwork and schedule an interview. His work contract was scheduled to be completed in late 2017, and he then intended to complete the immigration process for his family. Kyrgyzstan, a former Soviet Republic, is now a parliamentary republic. As of 2016, it has experienced human rights problems. Since the events in Ukraine in 2014, the U.S. Director of National Intelligence has assessed that Russia is increasing its presence in the region and accelerating a shift in which it is the uncontested influence there. In 2017, the U.S. State Department assessed Kyrgyzstan’s capital as being a medium-threat location for terrorist activity directed at or affecting official U.S. Government interests, and a high-threat for political violence. The Judge’s Analysis Kyrgyzstan has terrorism and human rights issues that raise concerns. Applicant’s ties with his wife, stepson, and mother-in-law create a heightened risk of foreign influence and potential conflict of interest. While Applicant has applied for his wife and stepson to immigrate to the United States, they remain in Kyrgyzstan. There is limited information about his wife’s prior work history and her potential ties in Kyrgyzstan. The Judge was not able to find that it is unlikely that Applicant would be placed in a position of having to choose between his foreign family members and the interests of the United States. The Judge found in favor of Applicant on the SOR allegation pertaining to his son who is a U.S. citizen and against Applicant on the allegations pertaining to his wife, stepson, and mother-in-law.

DISCUSSION

Applicant contends that the Judge did not consider all of the evidence. He argues, for example, that he has minimal contact with his family members in Kyrgyzstan, that he has applied for his wife and stepson to immigrate to the U.S., and that there is no evidence that his family knows any specifics about his job. The Judge, however, made findings about the amount of contact Applicant has with his family in Kyrgyzstan and about the status of the immigration petition for his wife and stepson. His 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). Applicant cites to a Hearing Office decision that is distinguishable from the case at hand because, among other reasons, it dealt with a different foreign country.1 Additionally, Hearing Office decisions are not binding precedent on other Hearing Office judges or the Appeal Board. Id. Moreover, we find no basis for concluding the Judge erred in her whole- person analysis. 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.” 1 See, Directive, Encl. 2, App. A ¶ 6, which states in part, “Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizen to obtain classified or sensitive information or is associated with a risk of terrorism.”

ORDER

The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board