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ISCR Case 15-08250.a1 — CASE

ISCR Case 15-08250.a1denied

Case Headnote

ISCR Case No. 15-08250.a1

Jul 28, 2017· Hon. James E. Moody· appeal

Summary

A 47-year-old defense contractor was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant holds dual citizenship with Turkey, and the denial was primarily based on his voting in Turkish national elections, which raised questions of dual loyalty.

Further disqualifying conditions included the applicant's family ties, with relatives residing in both Turkey and Iran. These connections were deemed to pose risks of foreign influence and potential coercion. The geopolitical landscape of Turkey, combined with the hostile nature of Iran, contributed significantly to the security concerns identified.

Despite recent changes in guidelines regarding foreign voting, the applicant's specific circumstances, including his foreign electoral participation and family connections in sensitive regions, led to the denial of his security clearance.

Conditions Referenced

Disqualifying

C1raisedVoting in Foreign ElectionsThe applicant voted in Turkey's national elections after becoming a U.S. citizen.
B2raisedForeign Influence Due to Family TiesThe applicant has family members in Turkey and Iran, which raises concerns of potential coercion.

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 issuedApr 20, 2016
Answer filed—
Hearing heldMay 15, 2017
Decision dateJul 28, 2017

Cite For

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Family Ties in Countries with Hostile Relations to the U.S.
Recent Changes in Guidelines Regarding Foreign Voting and Their Implications

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 security clearance based on concerns under Guideline C (Foreign Preference) and Guideline B (Foreign Influence). The Board affirmed the Judge's decision, finding that the adverse findings under Guideline C were no longer disqualifying due to recent guideline changes, while the findings under Guideline B were sustainable on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
Applicant contended that the Judge erred in finding that he provided financial support to his parents.
Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
Applicant argued that the Judge incorrectly stated that his mother became a naturalized U.S. citizen in 2013.
Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
Applicant claimed the Judge's finding regarding his deep affections and concerns for his family in Turkey was partially incorrect.

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 affirmed the Judge's findings under Guideline B, noting that the adverse findings were supported by substantial evidence and articulated a satisfactory explanation for the decision. The adverse findings under Guideline C were treated as a nullity due to recent changes in the guidelines regarding voting in foreign elections.

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

James E. Moody
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 C; Guideline B DIGEST: The Judge’s adverse findings under Guideline C only involved Applicant voting in a foreign election. The adjudicative guidelines in the Directive were revised in June 2017. U.S. citizen’s exercise of any right or privilege of foreign citizenship without an objective showing of a conflict or attempt at concealment is not disqualifying. As part of that revision, voting in a foreign election is no longer listed as disqualifying condition under Guideline C. Given this recent change in the guidelines, we are treating the Judge’s adverse findings under Guideline C as a nullity. The Judge’s adverse findings under Guideline B are sustainable on this record. Adverse decision affirmed. CASENO: 15-08250.a1 DATE: 07/28/2017 DATE: July 28, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08250

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 20, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security 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 May 15, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley 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 erred in his findings of fact. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is a 47-year-old employee of a defense contractor. He immigrated to the United States in 1995 and became a U.S. citizen in 2006. He holds dual citizenship with Turkey. His wife is a U.S. citizen who also holds citizenship with Turkey and Iran. One of his children is a naturalized U.S. citizen and the other is a U.S. citizen by birth. Applicant voted in Turkey’s national elections in 2014 and 2015. He exercised no other Turkish privileges since becoming a U.S. citizen. Applicant’s parents are citizens and residents of Turkey. His mother is a homemaker. His father is a retired attorney who once served in the Turkish military. His mother became a U.S. citizen in 2013. He provides periodic financial assistance to his parents. He communicates with them weekly and sees them yearly. Applicant has two sisters, extended family members, and close friends who are citizens and residents of Turkey. His oldest sister works for a state government agency and may have access to sensitive or classified information. His younger sister works for a bank that is not associated with the government. He communicates with his sisters bi-weekly. One close friend is a food engineer for the Turkish government. Applicant has in-laws who are citizens and residents of Iran. His mother-in-law holds dual citizenship with Iran and the United States. His father-in-law has permanent resident alien status in the United States. His mother-in-law has visited his family in the United States on multiple occasions. Both Applicant and his wife maintain frequent contact with her parents. Applicant has no property or financial interests in Turkey. His financial interests in the United States total about $650,000. It is uncertain whether he will inherit property in Turkey. The United States and Turkey enjoy close economic, political, and security relations. Turkey is a NATO ally. In recent years, Turkey faced significant terrorist threats. Human rights problems have also plagued Turkey. Iran remains the most active state sponsor of terrorism. Its financial, material, and logistical support of terrorists and militant groups throughout the Middle East and Central Asia had a direct impact on international efforts to promote peace, threatened economic stability in the Gulf, and undermined the growth of democracy. Iran’s nuclear program remains a pressing U.S. concern. U.S. State Department reports cite significant human rights concerns in Iran. The Judge’s Analysis By voting in Turkey’s national elections in 2014 and 2015 after becoming a U.S. citizen, Applicant created concerns over his having a split preference for the United States and Turkey. Considering the geopolitical situation in Turkey, the country remains a heightened risk for applicants with family members who are citizens and residents of Turkey. His sisters hold positions in Turkey that potentially afford them access to sensitive or classified information. He maintains biweekly contact with his sisters but never discusses the specifics of his work. Turkey is a country in transition, plagued with external and internal terrorist threats, and his parents and sisters remain at potential risk of foreign coercion, pressure, or influence. Iran is a hostile country with no diplomatic relations with the United States and is a state sponsor of terrorism. It also lacks a track record for respecting human rights. “Applicant’s demonstrated loyalty, patriotism, and professional commitments to the United States, while considerable, are not enough to neutralize all potential conflicts that are implicit in his relationship with his wife’s parents residing in Iran.” Decision at 21. Their residence in Iran cannot be characterized as sufficiently insulated from potential pressures or influences from the Iranian government.

DISCUSSION

The Judge’s adverse findings under Guideline C only involved Applicant voting in a foreign election. We note the adjudicative guidelines in the Directive were revised in June 2017. Under this revision, a U.S. citizen’s exercise of any right or privilege of foreign citizenship without an objective showing of a conflict or attempt at concealment is not disqualifying.1 As part of that revision, voting in a foreign election is no longer listed as a disqualifying condition under Guideline C. Given this recent change in the guidelines, we are treating the Judge’s adverse findings under Guideline C as a nullity because there is no showing that Applicant’s voting in the Turkish elections created a conflict. Moreover, since we are invalidating the Judge’s adverse findings under Guideline C, we need not address Applicant’s allegations of error that solely address those findings. The remainder of this decision addresses Applicant’s allegations of error regarding the Judge’s adverse findings under Guideline B. Applicant challenges some of the Judge’s findings under Guideline B.2 For example, he first contends that the Judge erred in finding that his mother became a naturalized U.S. citizen in 2013. He noted that his mother-in-law is a naturalized U.S. citizen, but his mother is a Turkish citizen. Second, Applicant states the Judge erred in finding that he provided financial support to his parents. 1 See, Directive, Encl. 2, App. A ¶ 9. 2 We examine a Judge’s findings to see if they are supported by substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. See, e.g., ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015) and ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). He denied providing them financial support and noted he testified that, if one of his parents passed away, he may need to help the survivor financially. Third, he argues that the Judge’s finding that “Applicant retains deep affections and concerns for the safety and well-being of his parents and sisters residing in Turkey” is partially incorrect. He concedes that he has deep concerns for their safety, but states Turkey is not a war-torn country and his concerns would apply equally across Europe, citing recent terrorist attacks in an European country. Even if the Judge erred as Applicant avers, those errors, whether considered individually or cumulatively, were harmless because they likely had no affect on the Judge’s ultimate decision.3 See, e.g., ISCR Case No. 15-00535 at 3 (App. Bd. Mar. 13, 2017). The Judge’s adverse findings under Guideline B are sustainable on this record. The Judge examined the relevant evidence and articulated a satisfactory explanation for the adverse decision under that guideline . “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

The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, 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 3 We note that an applicant with family members in a country that is hostile to the U.S., such as Iran, bears a “very heavy burden” to show that the family members are not a means of coercion or exploitation. See, e.g., ISCR Case No. 10-09986 at 3 (App. Bd. Dec. 15, 2011).