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ISCR 17-00629.a1: Guideline B security clearance appeal (2018) · CASE

ISCR Case 17-00629.a1unknown

Case headnote

ISCR Case No. 17-00629.a1

May 24, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves a 30-year-old U.S. citizen, originally from Iraq, whose security clearance was challenged under Guideline B (Foreign Influence). The concerns stemmed from his family residing in Iraq.

The applicant had a history of supporting U.S. forces during a deployment, a factor the appeal board determined was not adequately considered by the judge. The board found that the judge erred by not fully assessing how the applicant's contributions to national security could mitigate the foreign influence concerns.

Consequently, the case was remanded for a new decision, with the appeal board directing the judge to apply mitigating conditions 8(b), 8(d), and 8(f) in their re-evaluation. The ultimate outcome of the security clearance decision is currently none.

Conditions referenced

Mitigating

8(b)appliedMitigating Condition 8(b)The applicant's significant contributions to U.S. forces in high-risk circumstances were not adequately considered.
8(d)appliedMitigating Condition 8(d)The applicant's foreign activities were on U.S. Government business.
8(f)appliedMitigating Condition 8(f)The nature of the applicant's foreign activities was unlikely to result in a conflict of interest.

Key rule quoted

“when an applicant has established by credible, independent evidence that his or her compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant made a significant contribution to national security, those circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report attempts at coercion and exploitation.”
ISCR Case No. 06-25928 at 3-4 (App. Bd. Apr. 9, 2008)

Procedural posture

SOR issuedApr 3, 2017
Answer filed—
Hearing heldFeb 1, 2018
Decision dateMay 24, 2018Appeal remanded.

Cite for

Remand Due to Inadequate Consideration of Mitigating Factors Under Guideline B
Importance of Evaluating Contributions to National Security in Security Clearance Cases
Impact of Foreign Family Ties on Security Clearance Eligibility Under Guideline B

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

Remanded

The appeal involved a denial of a security clearance based on foreign influence concerns. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board found merit in the appeal, identifying errors in the Judge's analysis and remanded the case for further consideration.

Appealed bythe applicant

Applicant representationAttorney

Judge belowShari Dam denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge erred in her analysis of the risks arising from the Applicant's support to U.S. forces in Iraq and failed to properly consider mitigating factors related to that support.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge is to issue a new decision correcting the identified errors and may reopen the record on motion of either party.

Standard of review applied

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

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 DIGEST: The Judge erred in her analysis of the risks arising from his support to U.S. forces in Iraq. The Judge focused on the risks to Applicant’s family arising from his support to U.S. forces and did not address how that support weighs in his favor in analyzing his national security eligibility. The Board has recognized that, when an applicant has established by credible, independent evidence that his or her compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant made a significant contribution to national security, those circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report attempts at coercion and exploitation. Adverse decision remanded. CASENO: 17-00629.a1 DATE: 05/24/2018 DATE: May 24, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-00629

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 April 3, 2017, 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).1 Applicant requested a hearing. On February 1, 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the decision to correct identified errors. The Judge’s Findings of Fact Applicant, who is 30 years old, was born in Iraq. From about 2006 to 2008, he worked for U.S. forces in Iraq. Although terrorists never threatened him or his family, they consider all translators to be traitors. In 2008, Applicant entered the U.S. under a special immigrant visa program. Between 2010 and 2012, he returned to Iraq to marry and to live with his family for six months. He became a U.S. citizen in 2014. After obtaining his citizenship, he returned to Iraq for a month and then worked in another country and Iraq until the latter part of 2015. In early 2016, he started to work for his current employer and deployed to Iraq. He does not own any property in Iraq. Three U.S. military officers consider Applicant to be extremely responsible and trustworthy. Applicant’s father is deceased. His mother is a citizen and resident of Iraq. She retired after working for the Iraqi Government and receives a small pension. Applicant contacts her regularly and provides her with less than $2,000 annually in financial support. While he was working in Iraq, he called his mother frequently, and she visited him. He has a brother who is a citizen and resident of Iraq. He communicates with him only at holidays. He has two other siblings who are Iraqi citizens, but reside in the United States. His mother-in-law and four siblings-in-law are citizens and residents of Iraq. His mother-in-law is a housewife and his siblings-in-law are students. His wife communicates with those siblings when she calls her mother. Iraq faces many challenges, including sectarian and ethnic divisions. Numerous terrorist groups are active throughout Iraq, and the threat of violence is high there. The Department of State warns U.S. citizens that all travel to Iraq should be avoided. The Judge’s Analysis Given the terrorists threats in Iraq, Applicant’s family relationships in that country create a heightened risk of foreign pressure or exploitation. Those relationships are ongoing and create a 1 The two Guideline B allegations were amended at the hearing. Applicant had no objection to the amendments and the record remained open after the hearing to provide Applicant the opportunity to submit additional evidence pertinent to the amendments. Decision at 2. potential conflict of interest between Applicant’s obligations to protect sensitive information and his desire to help family members. His frequent visits to Iraq before and after becoming a U.S. citizen, including a recent long deployment, demonstrate longstanding and substantial commitments to Iraq. While there are factors that weigh in his favor, he has failed to mitigate the security concerns pertaining to foreign influence.

DISCUSSION

In deciding whether the Judge's rulings or conclusions are erroneous, we will review the decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 14-02563 at 3 (App. Bd. Aug. 28, 2015). In this case, Applicant contends the Judge erred in concluding that his “‘recent long deployment for work’ to Iraq was a disqualifying condition[.]” Appeal Brief at 5, citing Decision at 8. Applicant’s contention is persuasive. While the Judge did not categorize Applicant’s recent deployment as a “disqualifying condition,” she considered his deployment to be a factor weighing against his national security eligibility by stating it demonstrated longstanding and substantial commitments to Iraq. In general, an applicant’s deployment to a combat zone in support of U.S. forces is not a factor that weighs against his or her national security eligibility. On the contrary, such deployments tend to establish various mitigating conditions such as ¶ 8(b) (“there is no conflict of interest . . . because . . . the individual has such deep and longstanding loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest”);2 ¶ 8(d) (“the foreign . . . activities are on U.S. Government business”);3 and ¶ 8(f) (“the value or routine nature of the foreign business . . . is such that [it is] unlikely to result in a conflict of interest and could not be used effectively to influence, manipulate, or pressure the individual.”)4 Given the record in this case, we conclude the Judge erred by weighing Applicant’s recent deployment in an arbitrary and capricious manner and in failing to address the application of mitigating conditions 8(d) and 8(f). More specifically, the Judge failed to articulate a satisfactory basis for her unfavorable conclusion regarding Applicant’s recent deployment and, as discussed more fully below, that conclusion appears to run counter to the record evidence. 2 Directive, Encl. 2. App A ¶ 8(b) states, “there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest[.]” 3 Directive, Encl 2, App. A ¶ 8(d) states, “ the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee[.]” 4 Directive, Encl 2, App A ¶ 8(f) states, “the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.” Applicant also contends that the Judge erred in her analysis of the risks arising from his support to U.S. forces in Iraq. We agree. The Judge focused on the risks to Applicant’s family arising from his support to U.S. forces and did not address how that support weighs in his favor in analyzing his national security eligibility. The Board has recognized that, when an applicant has established by credible, independent evidence that his or her compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant made a significant contribution to national security, those circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report attempts at coercion and exploitation. See, e.g., ISCR Case No. 06-25928 at 3-4 (App. Bd. Apr. 9, 2008). In this case, the record contains statements from U.S. military members attesting to the support Applicant provided in dangerous circumstances. In 2006, Applicant served with a Quick Reaction Force in Iraq. Exhibit (AE) A and SOR Response. One senior enlisted member, who served with Applicant during that time period, stated: [Applicant] . . . served alongside my men during moments of intense combat operations. [He] was regularly trusted with sensitive information and privy to plans for numerous operations. I nor anyone else ever questioned his loyalty to the men, the mission, or the United States. [His] performance was exemplary and he was often called upon by my company and battalion commander to assist in higher level missions. I have the utmost trust in his dedication, loyalty, and patriotism.5 Applicant testified that he qualified for a special immigrant visa due to his support of U.S. forces under circumstances that presented dangers. Tr. at 54 and 62-63. Another senior enlisted member also noted that Applicant served honorably in “an arduous, high OPTEMPO, combat environment” in 2017. AE F. Such evidence demonstrates that Applicant has repeatedly been willing to assume a high level of risk on behalf of the U.S. and shows his ties and sense of obligation to the U.S. could be sufficiently strong enough to support a favorable application of mitigating condition 8(b). See ISCR Case No. 05-03846 at 6 (App. Bd. Nov 14, 2006) (An applicant’s work in support of U.S. forces in Afghanistan occurred “in the context of dangerous high-risk circumstances in which [he] made a significant contribution to national security.”) See also ISCR Case No. 04-12363 at 2 (App. Bd. Jul. 14, 2006); ISCR Case No. 07-00034 at 2-3 (App. Bd. Feb. 5, 2008); and ISCR Case No. 10- 02803 at 6 (App. Bd. Mar. 19, 2012). Here, the Judge erred by failing to analyze the Guideline B security concerns in the context of Applicant’s record of support to U.S. forces under dangerous circumstances. The case is remanded to the Judge for issuance of a new decision in accordance with the Directive that corrects the errors identified above. On remand, the Judge is permitted to reopen the record on the motion of either party. 5 AE F.

ORDER

The Decision is REMANDED. 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