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ISCR 16-01434.a1: Guideline B security clearance appeal, denied (2017) · CASE

ISCR Case 16-01434.a1denied

Case headnote

ISCR Case No. 16-01434.a1

Nov 15, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen applicant was denied a security clearance under Guideline B (Foreign Influence) due to close family ties in Iraq. The primary concern was the heightened risk of coercion stemming from his family's location, which was identified as a disqualifying condition (B2).

Despite the applicant's assertions of loyalty to the U.S. and his support for military operations, these factors were deemed insufficient to mitigate the security risks. The Appeal Board concluded that the potential for coercion outweighed his claims of allegiance and service to U.S. interests.

Ultimately, the denial was upheld because the applicant failed to demonstrate that the initial judge's decision was arbitrary or capricious. The Appeal Board affirmed that the security concerns associated with his foreign family connections presented an unacceptable risk, leading to the denial of his security clearance.

Conditions referenced

Disqualifying

B2raisedForeign Influence

Key rule quoted

“adverse decisions shall in no sense be a determination as to the loyalty of the applicant concerned”
Executive Order 10865

Procedural posture

SOR issuedSep 12, 2016
Answer filed—
Hearing heldSep 1, 2017
Decision dateNov 15, 2017

Cite for

Heightened Risk of Coercion Due to Foreign Family Ties Under Guideline B
The Standard for Granting Clearance Is Consistency with National Security Interests
The Non-determinative Nature of Adverse Decisions on Loyalty Claims

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDavid M. White 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 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 decision was supported by substantial evidence and was not arbitrary or capricious. The Judge properly weighed the evidence and articulated a satisfactory explanation for the decision.

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)
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: Applicant argues that he has “shown that he is completely loyal to the United States[.]” As the Judge noted, Executive Order 10865 emphasized that adverse decisions “shall in no sense be a determination as to the loyalty of the applicant concerned.” Adverse decision affirmed. CASENO: 16-01434.a1 DATE: 11/15/2017 DATE: November 15, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01434

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 12, 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 September 1, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White 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. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant provided support for U.S. military operations in the Middle East, as a consequence of which his family received threats. Applicant and his wife were granted refugee status in the U.S. and became U.S. citizens several years ago. Applicant has numerous close family members, including parents, siblings, and in-laws, who are citizens and residents of Iraq. Applicant’s father receives a pension from the Iraqi government. Applicant speaks to his relatives on at least a monthly basis. Applicant enjoys an excellent reputation for the quality of his work performance as well as for his trustworthiness. Iraq faces challenges due to sectarian violence. Terrorist groups operate within its borders and the Islamic State controls some of the country’s territory. The U.S. State Department warns that travel to Iraq should be avoided. The Judge’s Analysis Applicant’s close family connections within Iraq, viewed in conjunction with the threats against him and his family that prompted him to leave the country, establish that there is a heightened risk that Applicant could be subjected to pressure or could be placed in a conflict of interest. The Judge noted Applicant’s support for U.S. interests, but he concluded that this “brave and honorable” service did not outweigh concerns arising from the heightened risk of coercion.

DISCUSSION

Applicant’s brief consists in large measure of a challenge to the Judge’s weighing of the evidence. His arguments are not enough 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. 15-08711 at 3 (App. Bd. Aug. 24, 2017). We give due consideration to the Hearing Office case that Applicant has cited. However, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 16-01941 at 2 (App. Bd. Aug. 9, 2017). Applicant argues that he has “shown that he is completely loyal to the United States[.]” As the Judge noted, Executive Order 10865 emphasized that adverse decisions “shall in no sense be a determination as to the loyalty of the applicant concerned.” Decision at 4. 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