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ISCR 16-00024.a1: Guideline B security clearance appeal, denied (2017) · CASE

ISCR Case 16-00024.a1denied

Case headnote

ISCR Case No. 16-00024.a1

Nov 9, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 29-year-old U.S. citizen, originally from Iraq, was denied a security clearance under Guideline B (Foreign Influence) due to significant family ties in Iraq. His mother and four siblings reside there, raising concerns about potential foreign coercion.

Despite the applicant's service as a translator for U.S. forces and evidence of loyalty, the appeal board upheld the denial. Disqualifying condition B2, indicating a heightened risk of foreign coercion due to family ties, was raised. While mitigating condition B8, demonstrating the applicant's loyalty, was applied, it was deemed insufficient.

The denial was based on the applicant's family ties in Iraq posing a heightened risk of foreign coercion, his failure to sufficiently demonstrate he could resolve conflicts of interest in favor of the United States, and the fact that his family had previously been targeted by insurgents due to his work with U.S. forces.

Conditions referenced

Disqualifying

B2raisedForeign Influence

Mitigating

B8rejectedMitigating Condition 8(e) - Prompt Reporting of Foreign ContactsThe judge did not find sufficient evidence to credit the applicant under this condition.

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 issuedJul 11, 2016
Answer filed—
Hearing heldAug 11, 2017
Decision dateNov 9, 2017

Cite for

Heightened Risk of Foreign Coercion Due to Family Ties Under Guideline B
Insufficient Mitigation of Foreign Influence Concerns
Importance of National Security in 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 involved an applicant seeking a security clearance who was denied based on concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's 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 representationAttorney

Judge belowShari Dam denied the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, affirming that the clearance may only be granted when clearly consistent with national security interests.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael 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: The Board notes that we have previously discussed the value of such mitigating evidence for purposes of a whole-person analysis. In this case, the Judge discussed the pertinent evidence in various parts of her decision, including in her whole-person analysis. Therefore, there is no reason to remand the decision. Adverse decision affirmed. CASENO: 16-00024.a1 DATE: 11/9/2017 DATE: November 9, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-00024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Deputy Chief Department Counsel FOR APPLICANT Tokay T. Hackett, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 11, 2016, 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 hearing. On August 11, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant, who is 29 years old, was born in Iraq. He worked as a translator for U.S. forces in Iraq from 2005 to 2009. While working for the U.S. military, he received direct threats from insurgents. In 2009, he entered the United States on a special immigrant visa. In 2014, he became a U.S. citizen. In recent years, he has deployed three times to Iraq as a linguist. Applicant’s father is deceased. His mother is a citizen and resident of Iraq. She worked for a government-owned company until it closed in 2014. When not deployed, he calls her about once a week, and he last saw her in 2014. He sends her money for living expenses, including about $4,500 in 2016. He does not know whether she receives unemployment benefits from the Iraqi government. Applicant’s four siblings were born in Iraq and reside there. His one sister is a chemical engineer who worked at an oil refinery until its closure, and she is married to a taxi driver. His other sister is unmarried and cares for their mother. One sibling is unemployed and another attends high school. He speaks to three siblings about once a year and speaks to the other more frequently. Applicant’s stepmother and his six half-siblings are citizens and residence of Iraq. He does not have contact with his stepmother or half-siblings. Applicant’s wife was born in Iraq. They met while she was living in Turkey. She is a U.S. permanent resident. His mother-in-law is a citizen of Iraq who resides in the United States. His father-in-law is a citizen of Iraq who resides in Turkey. His father-in-law served in the Iraqi military and retired as a commander of a military unit. In an interview in 2015, Applicant “acknowledged that his ‘family was threatened by an unknown insurgency group in 2006 (est) due to HIS working relationship with U.S. Forces.’” Decision at 3, citing GE 3. He also told the investigator that his family moved to a safe area in Iraq and he had no current concerns for their safety. Applicant testified that while living in Iraq his family did not receive threats as a consequence of his work, but his mother was shot by terrorist because of her religious affiliation. An Army captain wrote that Applicant distinguished himself in the line of fire on two occasions and demonstrated loyalty to the United States. The captain also mentioned that Applicant’s mother was targeted and shot by insurgents because of Applicant’s work with the U.S. military. One of Applicant’s siblings was a Iraqi policeman who was killed during an insurgent attack. The captain recommended Applicant for a special immigrant visa and asserted Applicant, “his remaining [sibling] . . . and his mother cannot safely remain in Iraq without being further targeted by insurgent groups.” Decision at 3-4, citing AE D. Other military members also attest to Applicant’s valor under fire. Iraq remains engulfed in violence perpetrated by terrorists and insurgents. U.S. forces, contractors, and civilians have been the target of numerous attacks and kidnappings in Iraq, and the threat of terrorism remains high there. In Turkey, citizens and foreigners have been targeted by domestic and transnational terrorists for many years. Terrorist bombings in Turkey in the last five year have resulted in deaths, and the potential for future terrorist attacks remains high. The Judge’s Analysis From 2005 to 2009, Applicant’s relationship with his mother and siblings in Iraq created a heightened risk of foreign coercion while he worked there with U.S. forces. If he returns to Iraq, those relationships can be expected to create future risks. His relationship with his father-in-law, a former Iraqi officer, also creates a potential for a heightened risk of foreign pressure. Additionally, his relationships with his Iraqi relatives create potential conflicts of interest. Due to the significant presence of terrorism in Iraq and Turkey, Applicant did not sufficiently demonstrate that it is unlikely he could be placed in a position of having to choose between the interests of a foreign individual or entity and those of the United States. He presented evidence attesting to his loyalty to the United States. Despite those strong connections and his unquestionable commitment to U.S. forces, his family ties in Iraq remain too significant to expect him to resolve a conflict of interest in favor of the United States. “The most significant factor weighing against Applicant’s national security eligibility is the fact that he and his family were targeted in the past by insurgents because of his work for the U.S. forces . . . . That fact creates a significant heightened risk that cannot be sufficiently mitigated by Applicant’s praiseworthy work with the U.S. troops.” Decision at 9.

DISCUSSION

Applicant contends that the Judge erroneously concluded that Applicant’s mother was attacked because of his ties to the U.S. Government and argues that she was attacked because of her religious affiliation. At the hearing, Applicant offered into evidence a letter from a U.S. Army captain that indicated Applicant’s mother was targeted by insurgents due to his involvement with coalition forces. Applicant’s Exhibit D. The challenged finding is based on substantial evidence or constitutes a reasonable inference or conclusion that can be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3, (App. Bd. Jul. 25, 2014). Applicant also contends that the Judge erred in failing to give him credit under mitigating condition 8(e).1 In her decision, the Judge discussed Applicant’s disclosure in his security clearance applicant of his contacts with foreign family members and his disclosure during an interview of the threats that insurgents made to his family due to his working relationship with U.S. forces. Applicant did not identify any other reporting of foreign contacts or matters by him that the Judge failed to address in her decision. In the past, the Appeal Board has held that a Judge is not required to discuss all of the analytical factors set forth in the Directive. See, e.g., ISCR Case No. 14-06135 at 2, n. 1 (App. Bd. Jun. 15, 2016). Here, the Judge made appropriate findings of fact about Applicant’s disclosure of foreign contacts and threats. We conclude the Judge committed no harmful error by not specifically discussing mitigating 8(e) in her analysis. 1 Directive, Encl. 2, App. A, ¶ 8(e) states, “the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country[.]” Applicant further contends that the Judge did not weigh and consider all relevant evidence. He argues, for example, that his relationship with foreign family members neither created a heightened risk of foreign coercion nor a potential conflict of interest. His arguments, however, are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-06494 at 3 (App. Bd. Oct. 5, 2017). Applicant cites his conduct in support of the U.S. military under battlefield conditions. The Board notes that we have previously discussed the value of such mitigating evidence for purposes of a whole-person analysis. See, e.g., ISCR Case No. 05-03846 at 5-6 (App. Bd. Nov. 14, 2006) and ISCR Case No. 06-25928 at 3-4 (App. Bd. Apr. 9, 2008). In this case, the Judge discussed the pertinent evidence in various parts of her decision, including in her whole-person analysis. Therefore, there is no reason to remand the decision. See, e.g., ISCR Case No. 10-05329 at 2-3(App. Bd. Oct. 17, 2011) and ISCR Case No. 13-00142 at 4 (App. Bd. Oct. 15, 2014). 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

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael 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