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ISCR 03-11420.a2: Guideline B security clearance appeal, denied (2007) · CASE

ISCR Case 03-11420.a2denied

Case headnote

ISCR Case No. 03-11420.a2

Jun 13, 2007· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, originally from Sudan, was denied a security clearance under Guideline B (Foreign Influence) due to significant family ties in Sudan. The applicant has numerous close family members residing in Sudan, which is characterized as a military dictatorship with a poor human rights record.

The judge concluded that these family connections made the applicant vulnerable to pressure or duress from a foreign power. Specifically, Disqualifying Condition AG ¶ 7(a) was raised, indicating a concern about foreign influence.

While Mitigating Conditions AG ¶ 8(a), AG ¶ 8(b), and AG ¶ 8(c) were applied, they were insufficient to overcome the security concerns. The judge ultimately affirmed the denial of the security clearance, determining that the applicant's vulnerability to foreign pressure posed an unacceptable risk.

Conditions referenced

Disqualifying

AG ¶ 7(a)raisedForeign Influence

Mitigating

AG ¶ 8(a)appliedU.S. Citizenship
AG ¶ 8(b)appliedLength of Residence
AG ¶ 8(c)appliedFamily Ties in the U.S.

Key rule quoted

“The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case.”
ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006)

Procedural posture

SOR issuedMar 14, 2005Initial denial after hearing.
Answer filed—
Hearing held—
Decision dateJun 13, 2007Appeal Board affirmed denial.

Cite for

Vulnerability to Foreign Pressure Due to Family Connections Under Guideline B
Consideration of the Nature of the Foreign Government in Security Clearance Decisions
The Burden of Persuasion Lies with the Applicant to Establish Mitigating Conditions.

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 concerns related to the applicant's ties to Sudan. The applicant argued that the Judge's treatment of mitigating conditions was erroneous and that the decision was arbitrary and capricious. The Board found no harmful error and affirmed the denial of the clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael J. Breslin denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
The Judge's treatment of the Guideline B mitigating conditions was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge's unfavorable security clearance decision was arbitrary, capricious, or contrary to law.
Legal error, raised by the applicantRejected
Appeal Board interpretations of Guideline B adjudicative factors denied Applicant due process of law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge articulated a rational basis for denying the security clearance based on the applicant's connections to Sudan and the nature of the Sudanese government.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
Michael D. Hipple
James E. Moody

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 balanced the favorable evidence against the nature of the Sudanese government and its relationship with the US as well as the number of close relatives Applicant has in the Sudan. Adverse decision affirmed. CASENO: 03-11420.a2 DATE: 06/13/2007 DATE: June 13, 2007 In Re: ----------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-11420

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jennifer Goldstein, Esq., Department Counsel James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Phillip D. Cave, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 14, 2005, after the hearing, Administrative Judge Michael J. Breslin denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On appeal, this Board remanded the case to the Judge to resolve an ambiguity caused by a handwritten change to the hearing transcript. ISCR Case No. 03-11420 (App. Bd. Oct. 5, 2005). On August 31, 2006, the Judge issued a second decision, reflecting compliance with this Board’s remand instructions. Applicant again submitted a timely appeal pursuant to the Directive. Applicant raises the following issues on appeal: whether the Judge’s treatment of the Guideline B mitigating conditions is erroneous; whether the Judge’s unfavorable security clearance decision is arbitrary, capricious, or contrary to law; and whether Appeal Board interpretations of Guideline B adjudicative factors are erroneous and, therefore, deny Applicant due process of law. Finding no error, we affirm. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant, REDACTED at the time of the hearing, was born in Sudan, leaving there at to attend college . He completed his undergraduate degree . In he came to the U.S., From that date until he was a he served as an . In this position he . Applicant became a U.S. citizen and for years taught in U.S. schools. Subsequently he became a . Applicant married and divorced in . Applicant has children from his first marriage. His a naturalized citizen of the U.S. and native born citizen of the U.S. Applicant married again, in . His wife was born in Sudan and lives in the U.S. in permanent resident status. She is applying for U.S. citizenship. Applicant’s parents-in-law are citizens and residents of Sudan. Both are retired and neither worked for the government. Applicant’s wife has siblings who are citizens and residents of Sudan, and contacts them about times a year. She has children from a previous relationship, who live in Sudan. Applicant himself has siblings. His are citizens and residents of Sudan. He contacts three or four times a year; the other do not have phones. His are also citizens and residents of Sudan, none of whom apparently work for the government. Sudan has been a military dictatorship since 1989. The U.S. has determined that Sudan sponsors terrorism. It has an extremely poor record on human rights.

B. Discussion The Appeal Board’s review of the Judge’s findings of fact is limited to determining if they are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Applicant does not challenge the Judge’s findings of fact. Therefore, they are not at issue in this appeal. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. There is a presumption against granting a clearance. Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied 499 U.S. 905 (1991). Once the government presents evidence th raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In analyzing the case, the Judge noted such favorable information as the fact that Applicant is a U.S. citizen by choice and has lived in this country for most of his adult life. All his assets are in this country and he has held an interim clearance. However, the Judge balanced those matters against the number of Applicant’s close family members who reside in Sudan, the nature of the Sudanese government and its relationship with the U.S., and , finally concluding that he is “vulnerable to pressure or duress from a foreign power.” We conclude that the Judge has articulated a rational basis for concluding that Applicant had not met his burden of persuasion as to the application of mitigating conditions. Furthermore, we conclude that his whole person analysis complies with the requirements of Directive ¶ E2.2.1, in that the Judge considered the totality of Applicant’s conduct and circumstances in reaching his decision. See ISCR Case No. 04-09959 at 6 (App. Bd. May 19, 2006). Finally, we note that Applicant argued that Board precedent denied him due process of law. In making this argument, he incorporated the Judge’s own relatively lengthy survey of Board precedent, which the Judge included in his decision. Applicant also cites other cases by Hearing Office Judges which he believes support the granting of a clearance to him. We have considered Applicant’s argument in light of the record as a whole. We find no basis to conclude that he was denied the due process provided him by the Directive and by Executive Order 10865. Decisions of Hearing Office Judges do not serve as mandatory authority for Board decisions. See ISCR Case No. 05-03143 at 3 (App. Bd. Dec. 20, 2006).

ORDER

The Judge’s decision denying Applicant a clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board