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ISCR 06-23479.a1: Guideline B security clearance appeal, denied (2007) · CASE

ISCR Case 06-23479.a1denied

Case headnote

ISCR Case No. 06-23479.a1

Nov 28, 2007· Hon. Jean E. Smallin· appeal

Summary

A naturalized U.S. citizen was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant maintained significant family ties in Iran, including two brothers and a sister residing there. Additionally, the applicant owned a condominium in Iran valued at approximately $200,000.

A key disqualifying condition was the applicant's initial unwillingness to surrender an Iranian passport. Although the passport was later destroyed during the hearing, this action, combined with the other foreign connections, raised security concerns.

The appeal board affirmed the judge's findings, concluding that the applicant did not meet the burden of persuasion to mitigate the identified security risks. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence
AG C1raisedForeign Preference

Key rule quoted

“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)

Procedural posture

SOR issuedDec 22, 2006
Answer filed—
Hearing heldJul 23, 2007
Decision dateNov 28, 2007

Cite for

Security Concerns Related to Foreign Influence Under Guideline B
Security Concerns Related to Foreign Preference Under Guideline C
Burden of Persuasion for Mitigating Conditions 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 involved an applicant seeking a security clearance who was denied due to concerns under Guideline C (Foreign Preference) and Guideline B (Foreign Influence). The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error.

Appealed bythe applicant

Applicant representationPersonal representative

Judge belowChristopher Graham denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Erroneous finding of fact, raised by the applicantRejected
Applicant argued that the Judge's findings of fact are not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings or conclusions, affirming the adverse decision based on substantial evidence and proper application of the law.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Jean E. Smallin (Chair)
William S. Fields
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 C; Guideline B DIGEST: The Judge found that Applicant has two brothers and a sister in Iran. Applicant has a property interest in Iran. Until the hearing, Applicant was unwilling to surrender his Iranian passport, although he did destroy it in the course of the hearing.. Adverse decision affirmed CASENO: 06-23479.a1 DATE: 11/28/2007 DATE: November 28, 2007 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-23479

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Department Counsel FOR APPLICANT Leif H. Hendrickson, Personal Representative Applicant was naturalized a U.S. citizen in 1996. Government Exhibit 1. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 22, 2006, DOHA 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 23, 2007, after the hearing, Administrative Judge Christopher Graham denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings of fact are supported by substantial evidence; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following sustainable findings of fact: Applicant came to the United States in 1973 at the age of 19. He attended college in the U.S. He owns real property in this country as well as bank accounts and a 401(k) account. He has two brothers and a sister who are citizens and residents of Iran. His older brother is a business man, and his other brother suffers from Down’s syndrome. Applicant’s sister is a homemaker who has two children, one of whom lives in the U.S. He speaks to his sister about once a month and to his brother twice a month. Applicant owns an interest in an Iranian condominium worth about $200,000. He has held an Iranian passport which, at the time of the SOR, he was unwilling to surrender, although he destroyed it during the course of the hearing. Iran is an authoritarian regime that violates human rights and is an active supporter of terrorism. It is increasingly involved in supplying militant groups opposed to the U.S. in Iraq. It is capable of producing biological and chemical weapons. In light of these findings, the Judge’s conclusion that Applicant had failed to meet his burden of persuasion as to the application of pertinent mitigating conditions is sustainable. See Directive ¶¶ E2.8(a), (c). See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security’”); Directive ¶ E3.1.15. (“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable security clearance decision.”) Therefore, we conclude that the Judge’s decision is neither arbitrary, capricious, nor contrary to law. See Directive ¶¶ E3.1.32.3 and E3.1.33.3.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board