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ISCR Case 12-08412.a1 — CASE

ISCR Case 12-08412.a1denied

Case Headnote

ISCR Case No. 12-08412.a1

Sep 11, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, a dual U.S. and Iranian citizen, was denied clearance under Guidelines B (Foreign Influence) and C (Foreign Preference). The denial was affirmed on appeal, citing unmitigated foreign influence concerns.

Key issues included the applicant's spouse holding dual U.S. and Iranian citizenship, and the presence of Iranian citizen siblings-in-law, one of whom is a retired Iranian government official. The applicant's communication with these in-laws approximately four times annually was also noted as contributing to the perceived risk.

While a mitigating condition (AG C1) was considered, the disqualifying conditions (AG B1) related to foreign influence were not sufficiently overcome. The appeal board concluded there was substantial evidence of potential conflicts of interest, leading to the final denial of the security clearance.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG C1appliedDual Citizenship

Key Rule Quoted

“A clearance decision under the Directive is a determination in the interests of national security and is in no sense a determination as to Applicant’s loyalty.”

Procedural Posture

SOR issuedNov 7, 2014
Answer filed—
Hearing heldAug 4, 2015
Decision dateSep 11, 2015

Cite For

Foreign Influence Concerns Related to Dual Citizenship Under Guideline B
The Impact of Family Ties in a Hostile Country on Security Clearance Decisions
The Standard for Evaluating National Security Interests in Clearance Determinations

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 denial of a security clearance based on foreign influence and preference concerns. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — 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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and articulated a satisfactory explanation for the decision, affirming that the clearance decision is a determination in the interests of national security.

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
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 B; Guideline C DIGEST: A clearance decision under the Directive is a determination in the interests of national security and is in no sense a determination as to Applicant’s loyalty. Adverse decision affirmed. CASENO: 12-08412.a1 DATE: 09/11/2015 DATE: September 11, 2015 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-08412

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 7, 2014, DoD 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 a decision on the written record. On August 4, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judges’ favorable findings under Guideline C are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was born in Iran and attended college in another middle eastern country. He came to the U.S. in the early 1970sand began working for a DoD contractor in the early 1980s. Applicant’s spouse is a dual citizen of the U.S. and Iran, residing with Applicant in the U.S. Applicant has two siblings-in-law who are citizens and residents of Iran and one of whom is retired from a position with the government of Iran. Applicant communicates with his in-laws about four times a year. Iran is one of the most “menacing foreign intelligence threats” to the U.S. Decision at 4. Iran has developed cyber espionage or attack capabilities that could be used against this country. Iran continues to act abroad in ways that run counter to U.S. interests and that worsen regional conflicts. The U.S. State Department has designated Iran as a State Sponsor of Terrorism. Iran has a poor human rights record. The Judge’s Analysis The Judge cited to evidence that Applicant shares living quarters with his spouse, who is a dual citizen of Iran. He concluded that she is presumptively close enough to her Iranian siblings to raise a security concern, stating, inter alia, that the couple’s relationship with these relatives creates a possible conflict of interest. He also noted the extent to which Applicant communicates with his foreign relatives. The Judge concluded that Applicant had not met his burden of persuasion as to mitigation.

DISCUSSION

Applicant cites to some record evidence, in particular his answers to the SOR, that he believes may have been poorly worded and that did not present a clear picture of his circumstances. His brief addresses his foreign relatives and travels in a manner that, he contends, will provide an accurate context for evaluating his connections in Iran. He emphasizes his loyalty to the U.S. We have considered the entirety of Applicant’s argument in light of the record as a whole. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. Neither has he shown that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 12-08417 at 2 (App. Bd. Jun. 24, 2015). To the extent that Applicant is challenging the sufficiency of the Judge’s findings of fact, we conclude that they are based on substantial evidence or constitute reasonable inferences that could be drawn therefrom. See, e.g., ISCR Case No. 11-00970 at 2 (App. Bd. Feb. 28, 2012). A clearance decision under the Directive is a determination in the interests of national security and is in no sense a determination as to Applicant’s loyalty. Directive, Enclosure 1 SECTION 7. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. There is a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of his or her spouse. See, e.g., ISCR Case No. 12-00084 at 3 (App. Bd. Bd. May 22, 2014). In Foreign Influence cases, the nature of the foreign government involved, the intelligence gathering history of that government, and the presence of terrorist activity are important considerations. See, e.g., ISCR Case 05-03250 at 4-5 (App. Bd. Apr. 6, 2007). There is a rational connection between an applicant’s family ties in a hostile country and the risk that the applicant may fail to protect classified information. See, e.g., ISCR case No. 10-07436 at 3, n. 4 (App. Bd. Oct. 19, 2011). “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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