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ISCR Case 14-06931.a1 — CASE

ISCR Case 14-06931.a1denied

Case Headnote

ISCR Case No. 14-06931.a1

Dec 9, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence). The denial was primarily based on the applicant's extensive family ties in Afghanistan, a country characterized by a poor human rights record and active terrorist organizations.

The judges identified disqualifying conditions related to the applicant's connections to foreign relatives, specifically citing the potential for coercion. Despite the application of mitigating conditions, these were deemed insufficient to overcome the security concerns.

Key factors in the denial included the applicant's numerous immediate and extended family members residing in Afghanistan, the country's unstable security and human rights situation, and the applicant's regular communication and financial support to these relatives. These elements collectively increased the assessed risk of foreign influence and potential coercion, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedForeign Influence
AG ¶ 7(b)raisedForeign Influence

Mitigating

AG ¶ 8(a)rejectedForeign InfluenceThe applicant's commendable connections with family do not mitigate the security concerns.
AG ¶ 8(b)rejectedForeign InfluenceThe applicant's loyalty and service to the U.S. were acknowledged but insufficient to mitigate the risks.

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 20, 2015
Answer filed—
Hearing heldOct 5, 2016
Decision dateDec 9, 2016

Cite For

Security Concerns Related to Foreign Family Ties Under Guideline B
Impact of a Country's Human Rights Record on Security Clearance Decisions
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 a denial of a security clearance based on foreign influence concerns under Guideline B. The applicant argued that the Judge's decision was contrary to the weight of the evidence. The Board affirmed the decision, finding that the Judge's conclusions were supported by substantial evidence and did not constitute harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was contrary to the weight of the record evidence.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by substantial evidence and that the applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law.

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
James E. Moody
James F. Duffy

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: . In Foreign Influence cases, the nature of the foreign government and the presence of terrorist activity are important considerations that provide context for other evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is also an important consideration. His connections with his family are commendable. A concern in a Foreign Influence case is that foreign relatives may become a means through which an applicant could come to the attention of those interested in obtaining classified information and be subjected to coercion. Applicant has not shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 14-06931.a1 DATE: 12/09/2016 ` DATE: December 9, 2016 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06931

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 August 20, 2015, DoD 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 decision on the written record. On October 5, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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 contrary to the weight of the record evidence. Consistent with the following, we affirm. The Judge’s Findings of Fact Born and raised in Afghanistan, Applicant came to the U.S. in the late 2000s. He lives in the U.S. with his wife and three children. Applicant became a U.S. citizen a few years ago, and his Afghani wife is a permanent resident. Applicant has numerous relatives who are citizens and residents of Afghanistan. These include his mother, siblings, and extended family members, as well as in-laws. Applicant speaks with his mother and siblings weekly. He sends money to his mother, generally about $3,000 annually. He also provides money to his siblings. He is a co-owner of property in Afghanistan, valued at about $100,000. Afghanistan has a poor human rights record and, in spite of governmental efforts, is “a violent, unsafe, unstable country.” Decision at 3. Terrorist and insurgent groups, including those hostile to the U.S., operate within Afghanistan. Insurgents traffic in narcotics and kidnapping in order to finance military and technological capabilities. Such groups encourage Afghan security personnel to conduct insider attacks in an effort to undermine the trust between Afghanistan and the U.S. The Judge’s Analysis The Judge cited to evidence of Applicant’s frequent contact with his close family members in Afghanistan. The Judge acknowledged that Applicant is well educated and experienced in a field that is valuable to the U.S. He also found that Applicant has served the U.S. well, often under dangerous conditions. He stated that Applicant’s loyalty is not at issue. However, he concluded that there is insufficient evidence in the record to mitigate the concerns arising from Applicant’s foreign family members. He stated, for example, that information about Applicant’s wife is “scant.” Decision at 7.

DISCUSSION

Applicant’s brief cites to various aspects of the record in an attempt to provide context for his circumstances that would lessen their security significance. We have considered the entirety of Applicant’s brief, except for some new evidence, which we are not permitted to consider. See Directive ¶ E3.1.29. In Foreign Influence cases, the nature of the foreign government and the presence of terrorist activity are important considerations that provide context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is also an important consideration. See, e.g., ISCR Case No. 05-03250 at 4-5 (App. Bd. Apr. 6, 2007). Applicant’s connections with and support for his family are commendable. However, a concern in a Foreign Influence case is that foreign relatives, especially with whom the applicant communicates frequently, may become a means through which the applicant could come to the attention of those interested in obtaining U.S. classified information and be subjected to coercion. See, e.g., ISCR Case No. 10-07436 at 6 (App. Bd. Oct. 19, 2011). Applicant has not shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06686 at 2 (App. Bd. Apr. 27, 2016). Given evidence that Applicant is married to a citizen of Afghanistan; has numerous relatives who are citizens and residents of that country; communicates frequently with his closest foreign relatives; Afghanistan is politically unstable; and groups hostile to the U.S. operate within its borders, the Judge’s conclusion that Applicant had not met his burden of persuasion as to mitigation is supportable. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board