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ISCR 02-17369.a2: Guideline B security clearance appeal, granted (2007) · CASE

ISCR Case 02-17369.a2granted

Case headnote

ISCR Case No. 02-17369.a2

Apr 5, 2007· Hon. Jeffrey D. Billett· appeal

Summary

This case concerns an applicant, a U.S. citizen since 1986 who immigrated in 1982, whose security clearance was reviewed under Guideline B (Foreign Influence) due to family ties in Jordan. Disqualifying conditions were raised under Adjudicative Guideline (AG) paragraph 6.

However, the Chief Administrative Judge's decision to grant the security clearance was affirmed by the Appeal Board, applying mitigating conditions under AG paragraph 8. The decision highlighted the applicant's strong ties to the United States. Key factors included the applicant's long-term U.S. residency since 1982 and U.S. citizenship since 1986.

Further mitigation was found in the fact that the applicant's wife and children are all U.S. citizens. Additionally, the applicant has continuously held a security clearance since 1991 and has not used a Jordanian passport since immigrating. Based on these unchallenged findings, the security clearance was GRANTED.

Conditions referenced

Disqualifying

AG ¶ 6raisedForeign Influence

Mitigating

AG ¶ 8appliedMitigating Conditions for Foreign InfluenceThe applicant's strong ties to the U.S. were sufficient to mitigate the concerns.

Key rule quoted

“The Appeal Board does not hold an Administrative Judge’s decisions to a standard of perfection.”
ISCR Case 05-03143 at 2 (App. Bd. Dec. 20, 2007)

Procedural posture

SOR issuedMay 7, 2004
Answer filed—
Hearing heldOct 27, 2005
Decision dateApr 5, 2007

Cite for

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Strong Ties to the U.S. in Security Clearance Cases
Standard of Review for Administrative Judges' Decisions

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 challenge by Department Counsel to a favorable security clearance decision granted to the Applicant by the Chief Administrative Judge. The Board affirmed the decision, finding that the Judge's errors did not undermine the overall conclusion supported by substantial evidence.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Chief Administrative Judge's favorable decision was arbitrary, capricious, or contrary to law due to multiple misapplications of Guideline B.

Why the Board ruled this way

The Board found that despite the Chief Administrative Judge's misapplications of Guideline B, there were numerous unchallenged findings of fact supporting the favorable decision, which was ultimately sustainable.

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

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
William S. Fields

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 Chief Administrative Judge mistakenly discusses statutory language which is inapposite to the matter of granting a security clearance. The Judge also confuses the question of whether Applicant may be confronted with a choice with how Applicant might deal with such a choice. The Board does not hold an Administrative Judge to a standard of perfection. There are numerous unchallenged findings of fact which cumulatively support the Judge’s ultimate conclusion. Favorable decision affirmed. CASENO: 02-17369.a2 DATE: 04/05/2007 DATE: April 5, 2007 In Re: ------ SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 02-17369

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Eric Borgstrom, Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 7, 2004, DOHA issued a statement of reasons advising Applicant of the basis The Chief Administrative Judge cites to a decision of a fellow Administrative Judge in ISCR Case 03-21434 (A.J. May 24, 2006). That case was remanded by the Appeal Board because of error on the part of the Judge. See ISCR Case No. 03-21434 (App. Bd. Feb 20, 2007). 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 October 27, 2005, after the hearing, Chief Administrative Judge Robert Robinson Gales granted Applicant’s request for a security clearance. Department Counsel appealed. The Appeal Board remanded the case to the Chief Administrative Judge in a decision dated May 23, 2006. The Chief Administrative Judge issued a second favorable decision on May 25, 2006. Department Counsel timely appealed the decision after remand pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Chief Administrative Judge’s favorable decision is arbitrary, capricious, or contrary to law because of the Chief Administrative Judge’s multiple misapplications of Guideline B Foreign Influence Mitigating Condition 1 (MC 1); and whether the Chief Administrative Judge’s whole-person analysis is arbitrary, capricious, or contrary to law. Department Counsel’s arguments have merit with respect to the Chief Administrative Judge’s misapplications of MC1. Applicant’s brother appears to fit technically into the category “agent of a foreign power.” The Chief Administrative Judge mistakenly discusses statutory language from other legal settings which are inapposite to the matter of granting a security clearance. See ISCR Case No. 04-00540 at 4-6 (App. Bd. Jan. 5, 2007). Furthermore, the language of the statutes cited is explicitly self-limiting. Also, the Chief Administrative Judge’s analysis confuses the question (explicitly raised in MC1) of whether Applicant will have to make a choice between his Jordanian relatives and the United States with the question (not raised in MC1) of how Applicant might deal with such a choice if he were confronted with it.1 Nevertheless, the Appeal Board does not hold an Administrative Judge’s decisions to a standard of perfection. See ISCR Case 05-03143 at 2 (App. Bd. Dec. 20, 2007). In this case, there are numerous unchallenged findings of fact which cumulatively support the ultimate conclusion of the Chief Administrative Judge’s whole-person analysis that Applicant has sufficiently strong ties to the United States to overcome the government’s security concerns. Those facts include: Applicant immigrated to the United States in 1982; Applicant has been a United States citizen since 1986; Applicant’s wife and children are US citizens; Applicant has had a security clearance since 1991; and Applicant has not used a Jordanian passport since his arrival in the United States. Considering the record as a whole, the Chief Administrative Judge’s ultimate favorable security clearance decision is sustainable.

ORDER

The decision of the Chief Administrative Judge granting Applicant a clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board