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ISCR Case 07-04242.a1 — CASE

ISCR Case 07-04242.a1denied

Case Headnote

ISCR Case No. 07-04242.a1

Oct 7, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A 52-year-old linguist with dual U.S. and Sudanese citizenship was denied a security clearance under Guideline B (Foreign Influence). The denial was based on significant familial ties to Sudan, which the U.S. State Department has designated as a state sponsor of terrorism.

Specific disqualifying conditions raised included concerns that the applicant's immediate family members in a foreign country are subjects of a foreign power, government, or person, and that the applicant is in a position to be exploited or coerced by a foreign power. The applicant's financial support to family members residing in Sudan was also a contributing factor to the adverse decision.

While mitigating conditions were considered, such as the applicant's family members not being agents of a foreign power and the applicant not being in a position to be exploited, these were insufficient to overcome the security concerns. The appeal board affirmed the denial, prioritizing national security interests given the substantial evidence supporting the judge's findings.

Conditions Referenced

Disqualifying

AG B 7raisedForeign Contacts and Activities
AG B 8raisedFailure to Mitigate Foreign Influence

Mitigating

AG B 1rejectedThe Nature of the Foreign InfluenceThe judge found that the applicant's ties to Sudan could not be mitigated by the nature of the foreign influence.
AG B 2rejectedThe Applicant's ConductThe applicant's conduct did not sufficiently mitigate the security concerns raised.

Key Rule Quoted

“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 issuedDec 28, 2007
Answer filed—
Hearing heldJun 24, 2008
Decision dateOct 7, 2008

Cite For

Security Concerns Under Guideline B Due to Foreign Influence
Impact of Familial Ties to a State Sponsor of Terrorism on Security Clearance
Importance of National Security Interests in Clearance 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 an applicant seeking a security clearance who was denied due to concerns under Guideline B (Foreign Influence). The applicant raised issues regarding the Judge's findings and analysis. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred by not assigning sufficient weight to favorable evidence.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant argued that the Judge erred in stating he sends $500.00 to his siblings in Sudan.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed the Judge's whole person analysis was flawed.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the adverse security clearance decision based on substantial evidence and proper application of the law.

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 is presumed to have considered all the evidence. He is not required to cite or discuss every piece of record evidence. Adverse decision affirmed. CASENO: 07-04242.a1 DATE: 10/07/2008 DATE: October 7, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04242

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James N. Apostle, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 28, 2007, DOHA 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 June 24, 2008, after the hearing, Administrative Judge Roger C. Wesley 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 certain of the Judge’s findings of fact are supported by substantial record evidence; whether the Judge erred in his application of the pertinent mitigating conditions; and whether the Judge erred in his whole person analysis. Finding no error we affirm. The Judge made the following pertinent findings of fact: Applicant is a 52-year-old linguist for a defense contractor. Born and raised in Sudan, he worked for a civilian business in that country. He immigrated to the U.S. in the 1980s, becoming a U.S. citizen soon thereafter. He retains dual citizenship with Sudan. Applicant has five siblings who are citizens of Sudan. One lives in a European country and recently became a citizen of that country. Another lives and works in a middle eastern country. The remaining three reside in Sudan. Applicant has weekly to monthly contact with his siblings. He is married to a Sudanese woman who recently became a U.S. citizen. Applicant and his wife have three children. His parents-in-law are Sudanese citizens residing in another country. Applicant’s wife maintains regular contact with them (about two times a month) and Applicant speaks with them himself upon occasion. Applicant’s wife has six siblings who reside in Sudan. She has other siblings residing in other countries. She has monthly contact with her siblings in Sudan. The U.S. State Department has designated Sudan as a state sponsor of terrorism. It is the subject of trade restrictions. Sudan has committed numerous human rights violations, and United Nations peacekeepers report systematic rape of women and children in the Darfur region. Other violations include arbitrary arrest and detention, denial of due process, and trafficking in persons. The Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) To the extent that the Judge’s findings contain error, the Board concludes that such error is harmless. For example Applicant argues that the Judge erred in stating that Applicant pays $500.00 to his siblings living in Sudan. This finding appears to have been based, at least in part, on Government Exhibit 2, Personal Subject Interview, at 5: “Subject noted that he sends his siblings money to help out every month. Subject noted that he sends $500.00 a month total.” Applicant points to his testimony that he had stopped sending the money after his siblings married. Tr. at 43. However, even if the Judge had made a finding on this matter consistent with Applicant’s testimony at the hearing, such a finding would not likely have resulted in a favorable security clearance decision when viewed in light of the record as a whole. See ISCR Case No. 06- 23112 at 2 (App. Bd. Dec. 31, 2007). Applicant contends that the Judge erred by not assigning sufficient weight to matters he believes favorable to his case, for example that his siblings live in a part of Sudan that enjoys relative security. However, “[a]napplicant’s disagreement with the Judge’s weighing of the evidence . . . is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.” See ISCR Case No. 07-10454 at 2 (App. Bd. Aug. 12, 2008). Furthermore, the “Judge is presumed to have considered all the evidence in the record unless he specifically states otherwise. He is not required to cite or discuss every piece of record evidence.” See ISCR Case No.07-04504 at 4 (App. Bd. Jul. 31, 2008)(internal citations omitted). In light of the record as a whole, the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision, both as regards the mitigating conditions and the whole-person factors. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 Judge’s decision that “it is not clearly consistent with the national interest to grant or continue Applicant’s security clearance” is sustainable on this record. Decision at 12. 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 the national security’”). See also ISCR Case No. 05-03250 at 4-5 (App. Bd. Apr. 6, 2007) (In Guideline B cases, the presence of terrorist activity in the country involved, as well as the country’s human rights record, are important considerations which “must be brought to bear on the Judge’s ultimate conclusions in the case”).

ORDER

The Judge’s adverse security clearance decision 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