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ISCR Case 15-06559.a1 — CASE

ISCR Case 15-06559.a1denied

Case Headnote

ISCR Case No. 15-06559.a1

Nov 21, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, originally from Afghanistan, was denied a security clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed primarily from the applicant's significant ties to Afghanistan, specifically the presence of close family members, including a father to whom he provides financial support.

The applicant's connections within the United States were limited to his wife and child, which was deemed insufficient to mitigate the concerns regarding foreign influence. The appeal board upheld the initial denial, concluding that the applicant's strong ties to Afghanistan outweighed the mitigating evidence presented.

The board found no harmful error in the judge's original findings or decision, reinforcing that the applicant's arguments did not adequately address the disqualifying conditions raised under B2 and E2. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

B2raisedForeign Influence
E2raisedPersonal Conduct

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedApr 29, 2016
Answer filed—
Hearing heldAug 31, 2017
Decision dateNov 21, 2017

Cite For

Denial Based on Foreign Influence Due to Family Ties Abroad
Limited Mitigating Evidence Does Not Outweigh Disqualifying Factors
Importance of Weighing Evidence in Security 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 was brought by an applicant whose security clearance was denied based on concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant argued that the Judge erred in his findings and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's analysis was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in his weighing of the evidence.
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.
No specific harmful error alleged — raised by the applicantRejected
Applicant did not identify any harmful error in the Judge's findings of fact.

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 that the Judge's decision was supported by substantial evidence and that the Judge properly weighed the evidence presented. The presence of some mitigating evidence did not compel a favorable decision, and the Judge's findings were not arbitrary or capricious.

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 Ra’anan — Chair
William S. Fields
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; Guideline E DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance 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. Adverse decision affirmed. CASENO: 15-06559.a1 DATE: 11/21/2017 DATE: November 21, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06559

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 April 29, 2016, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On August 31, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable finding on the sole Guideline E allegation was not raised as an issue on appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was born in Afghanistan and moved to the United States in 2004. He became a U.S. citizen in 2008. He is married and has a daughter. His wife was born in Afghanistan. His wife and daughter are U.S. citizens. Applicant’s father is a citizen and resident of Afghanistan. In his Answer to the SOR, Applicant indicated that his father has no affiliation with any Afghan organization or government. His father earns a living by selling produce. Applicant contacted his father three times in the last two years while he was deployed. Two of those occasions were to provide his father about $400 in financial support. At the hearing, Applicant testified that he last saw his father more than 20 years ago and speaks to him about once a year. He sends his father about $500 or less once or twice a year. Applicant’s five siblings are citizens and residents of Afghanistan. They have no affiliation with any Afghan organization or government. He spoke to one brother once in the last two years. He indicated that he almost never speaks to his other brother and has had no contact with his sisters in the last few years. Applicant testified he had no other family or friends in Afghanistan with whom he keeps in contact. He works in Afghanistan for periods of about six month and then returns to the United States for about a month. None of his relatives in Afghanistan have come to visit him in the United States. He owns no property in the United States, Afghanistan, or elsewhere, but hopes to purchase a home in the United States. He testified that he is totally loyal to the United States. He provided a number of documents in mitigation, including a Commander’s commendation and a certificate of appreciation.

Afghanistan’s human rights record has remained poor. A Taliban dominated insurgency has become sophisticated and destabilizing. The State Department has declared that the security threat to U.S. citizens in Afghanistan remains critical as no part of the country is immune from violence. The Judge’s Analysis Applicant has close family members, especially his father for whom he provides financial support, who are citizens and residents of Afghanistan. His ties to the United States are limited to his wife, son, and mother-in-law. Because of his strong ties to Afghanistan and his limited contacts in the United States, none of the mitigating conditions are applicable.

DISCUSSION

Applicant contends the Judge erred in failing to find that he had a security clearance from 2010 to 2014. In his security clearance application (SCA) dated June 2014, however, Applicant answered “No” to the question that asked if the U.S. Government ever investigated his background or granted him security clearance eligibility or access.1 Applicant also notes that the Judge twice incorrectly referred to his child as a “son” in the decision. This error was harmless because it did not likely affect the outcome of the case. See, e.g., ISCR Case No. 12-00678 at 2 (App. Bd. Jun. 13, 2014). Applicant has not identified any harmful error in the Judge’s findings of fact. The balance of Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence. In particular, he argues that he has limited contact with his relatives in Afghanistan. The Judge addressed most of his arguments in the decision. As we have previously held, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance 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., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

1 In that SCA, Applicant also answered “No” to the question that asked if he ever had a security clearance eligibility/access authorization denied, suspended, or revoked. Government Exhibit 5, however, revealed that Applicant’s interim security clearance was denied in 2006, and he did not know why his security clearance was denied. The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board