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ISCR Case 09-04388.a1 — CASE

ISCR Case 09-04388.a1denied

Case Headnote

ISCR Case No. 09-04388.a1

Apr 13, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A naturalized U.S. citizen, originally from Iran, was denied a security clearance under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The denial was based on two primary disqualifying conditions: the applicant's immediate family members are citizens and residents of Iran, and the applicant used an Iranian passport after becoming a U.S. citizen.

The judge determined that the applicant's family ties in Iran created a potential conflict of interest. Furthermore, the continued use of an Iranian passport after naturalization was deemed an exercise of foreign citizenship, which is a disqualifying condition.

Ultimately, the judge concluded that the risks associated with these foreign connections outweighed any mitigating factors presented by the applicant. Consequently, the mitigating conditions under both Guideline B and Guideline C were found not to apply, leading to the denial of the security clearance.

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 the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedAug 31, 2009
Answer filed—
Hearing held—
Decision dateApr 13, 2010

Cite For

Foreign Influence Concerns Due to Family Ties in Iran
Disqualifying Conditions Related to Foreign Citizenship
The Standard for Granting Security Clearances in Relation to National Security Interests

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) and Guideline C (Foreign Preference). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRita C. O’Brien — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

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; Guideline C DIGEST: The Judge concluded that Applicant’s immediate family members who are residents or citizens of Iran create a potential conflict of interest. Adverse decision affirmed. CASENO: 09-04388.a1 DATE: 04/13/2010 DATE: April 13, 2010 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04388

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 31, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On January 29, 2010, after the close of the record, Administrative Judge Rita C. O’Brien denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that Applicant earned a bachelor’s degree from a U.S. university and became a naturalized U.S. citizen in 1993. He was originally from Iran. The Judge found that Applicant married an Iranian citizen in Iran in 1995, and his wife became a U.S. citizen in 2001. Applicant’s two children were born in the United States. The Judge found that Applicant’s mother, three brothers, and one sister are citizens and residents of Iran and Applicant’s in-laws are citizens of Iran living in the United States. The Judge also found that after attaining U.S. citizenship in 1993, Applicant obtained an Iranian passport. When it expired a number of years later, he renewed it. Applicant currently possesses this valid Iranian passport and used it to enter and exit Iran on multiple occasions. The Judge found that Applicant is unwilling to surrender or invalidate his Iranian passport because without it, he feels that it would be almost impossible for him to travel to Iran. The Judge found that the United States has not had diplomatic or consular relations with Iran since 1979 and that Iran engages in clandestine efforts to illegally obtain U.S. military equipment and other sensitive technology. The Judge also found that Iran sponsors international terrorism, undermines the Middle East peace process, and violates the human rights of the Iranian people. The Judge concluded that American citizens with immediate family members who are citizens or residents of Iran are at heightened risk of coercion, exploitation, or pressure. Applicant has immediate family members who are citizens and residents of Iran. The Judge concluded that Applicant’s ties of affection and obligation to his foreign family create a potential conflict of interest between his desire to protect them and his obligation to protect classified information. The Judge considered Guideline B mitigating factors and concluded that they did not apply. Regarding Guideline C, the Judge concluded that Applicant’s use of his Iranian passport after he became a U.S. citizen constituted an exercise of foreign citizenship and was disqualifying. The Judge also concluded that none of the Guideline C mitigating factors applied in this case. Applicant points to his academic and job-related achievements and articulates his belief that the United States has provided him with his opportunities and that he feels obligated to give something back. He states his belief that the Judge’s conclusion that the Iranian government might try to obtain information by using his family members is pure speculation. Applicant asserts that should the Iranian government attempt to engage in such activity, he will take all necessary steps to protect classified information. Applicant’s arguments do not establish error. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06- 10320 at 2 (App. Bd. Nov. 7, 2007). A party’s’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation 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, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She discussed the applicability of the mitigating factors listed under Guidelines B and C, but indicated with considerable detail why those mitigating conditions could not be invoked in this case to alleviate the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). Also, Applicant characterizes as speculative the Judge’s articulation of the concern created by the presence of immediate family members in Iran. Given the facts of this case, this assertion is not well founded. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice 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 the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board