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ISCR 10-01100.a1: Guideline B security clearance appeal, denied (2011) · CASE

ISCR Case 10-01100.a1denied

Case headnote

ISCR Case No. 10-01100.a1

deniedJun 13, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a trustworthiness designation due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant admitted to all allegations in the Statement of Reasons, which included holding an Iranian passport and maintaining financial ties to family in Iran.

The applicant appealed the denial, arguing that the judge mis-weighed the evidence presented. However, the appeal was denied, affirming the judge's original decision. The appellate authority found that the judge's findings were based on substantial evidence and reasonable inferences drawn from the record.

Ultimately, the applicant failed to demonstrate that the judge mis-weighed the evidence or made arbitrary decisions. Consequently, the trustworthiness designation was denied.

Why the applicant was denied

The applicant admitted to all allegations in the Statement of Reasons (SOR).
The judge's findings were based on substantial evidence and reasonable inferences drawn from the record.
The applicant failed to demonstrate that the judge mis-weighed the evidence or made arbitrary decisions.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence
AG C1raisedForeign Preference

Key rule quoted

“Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation.”

Procedural posture

SOR issuedFeb 23, 2009
Answer filed—
Hearing heldMar 25, 2011
Decision dateJun 13, 2011

Cite for

Denial of Trustworthiness Based on Foreign Influence and Preference Concerns
Burden of Proof Shifts to Applicant After Government Raises Trustworthiness Concerns
Judge's Discretion in Weighing Evidence and Making Credibility Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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: Applicant admitted all the SOR allegations. The Judge’s findings are based upon substantial record evidence. Applicant has not demonstrated that the Judge mis-weighed the evidence. Adverse decision affirmed. CASE NO: 10-01100.a1 DATE: 06/13/2011 DATE: June 13, 2011 In Re: ---------------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 10-01100

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Arash D. Zarei, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a trustworthiness designation. On February 23, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness 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 March 25, 2011, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse trustworthiness decision is arbitrary, capricious, or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed or remanded because the Judge erred in some of his findings and mis-weighed the evidence. With respect to the Guideline C allegations he argues that even though he possessed and renewed an Iranian passport for many years, he only used it two times in thirty-three years to travel to Iran and surrendered it prior to the hearing. As to the Guideline B allegations he argues that the trustworthiness concerns presented by the fact that he speaks to his parents in Iran by telephone once a week and sends them three to four thousand dollars a year are outweighed by his significant ties to the United States and his favorable character evidence. Applicant has not demonstrated that the Judge’s ultimate adverse decision is arbitrary, capricious, or contrary to law. In this case, Applicant admitted to all the factual allegations in the SOR. After reviewing the record, the Board concludes that the Judge’s material findings of trustworthiness concern are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. See Directive ¶ E3.1.32.1. Applicant has not identified any harmful error likely to change the outcome of the case. Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness decision. 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. A party’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., ADP Case No. 07-06039 at 4 (App. Bd. Jul. 8, 2008). A review of the decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. He reasonably explained why the mitigating evidence was insufficient to overcome the government’s trustworthiness concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes 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 Judge’s unfavorable trustworthiness determination is sustainable.

ORDER

The decision of the Judge denying Applicant a trustworthiness designation is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean S. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board