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ISCR 16-02522.a1: Guideline B security clearance appeal, denied (2017) · CASE

ISCR Case 16-02522.a1denied

Case headnote

ISCR Case No. 16-02522.a1

Jul 12, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, originally from Afghanistan, was denied a security clearance primarily under Guideline B (Foreign Influence), with Guideline E (Personal Conduct) also considered. The applicant's extensive family ties in Afghanistan and Pakistan were identified as a significant security risk, specifically citing Disqualifying Condition B2.

Despite a favorable finding under Guideline E, where Mitigating Condition E2 was applied, the appeal board upheld the denial. The board determined that the applicant failed to adequately demonstrate that his family connections in regions known for terrorist activities did not pose a security concern.

The decision also factored in the applicant's limited time residing in the U.S. and the absence of immediate family within the country. Ultimately, the security clearance was denied due to the unmitigated foreign influence concerns.

Conditions referenced

Disqualifying

B2raisedForeign Influence

Mitigating

E2appliedPersonal Conduct

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 27, 2016
Answer filed—
Hearing heldApr 6, 2017
Decision dateJul 12, 2017

Cite for

Security Concerns Related to Foreign Influence Under Guideline B
Impact of Family Ties in Regions with Terrorist Activities on Security Clearance Decisions
Administrative Notice of Official Documents in Security Clearance Cases

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 concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). 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 or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline E

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 did not err in considering the State Department travel warnings and that the decision was supported by substantial evidence and was 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: Administrative notice may be taken of official documents posted by Federal departments and agencies on their websites. Adverse decision affirmed. CASENO: 16-02522.a1 DATE: 07/12/2017 DATE: July 12, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02522

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 July 27, 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). Applicant requested a decision on the written record. On April 6, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Thomas M. Crean 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. 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 Pakistan at a young age. He returned to Afghanistan after he graduated from high school. He worked as a linguist and translator for U.S. Forces in Afghanistan before coming to the United States and later becoming a U.S. citizen in 2014. Applicant’s wife is an Afghan citizen, holds a U.S. alien registration card, and resides with his parents in Afghanistan. His parents, four brothers, three sisters-in-law, a sister, two uncles, and friends are citizens and residents of Afghanistan. He also has brothers, a sister-in-law, and in-laws who are citizens of Afghanistan residing in Pakistan. Applicant has received many certificates of appreciation and letters of commendation. An Army colonel commented that Applicant strongly contributes to his organization and he never questioned Applicant’s loyalty. Afghanistan faces many challenges including defeating terrorists and insurgents, recovering from decades of civil strife, and rebuilding its economy and infrastructure. Its human rights record is generally poor. The State Department classifies the situation in Afghanistan as a critical security threat to the United States. Pakistan has experienced extensive terrorist activities. The State Department warns U.S. citizens to curtail non-essential travel to Pakistan because of terrorist threats. The Judge’s Analysis Applicant has an extensive number of immediate family members who are citizens of Afghanistan and reside in either Afghanistan or Pakistan. He maintains some level of personal contact with these relatives. Both countries experience dangerous, destabilizing terrorist activities. The State Department issued travel warnings for U.S. citizens in both countries based on terrorist activities and the inability of the countries to provide security. Having spent only a short time actually living in the United States, Applicant’s ties to the United States are not extensive. He has no family members in the United States. He has not met the burden of showing the presence of his family members in Afghanistan and Pakistan are not a security concern.

DISCUSSION

In the appeal brief, Applicant challenges the Judge’s consideration of travel warnings issued by the U.S. Department of State for Afghanistan and Pakistan. He referred to those documents as not an “ideal cause” for the unfavorable decision. Appeal Brief at 2. The travel warnings were part of the administrative notice requests that Department Counsel submitted in her File of Relevant Material (FORM). In submitting a response to the FORM, Applicant did not object to any exhibits attached to the FORM. It is well established that a Judge may take administrative or official notice, the equivalent of judicial notice in administrative proceedings, of certain facts in appropriate cases. More specifically, the Board has held that administrative notice may be taken of official documents posted by Federal departments and agencies on their websites. See, e.g., ISCR Case No. 99-0452 at 4, n. 7 (App. Bd. Mar. 21, 2000) and ISCR Case No 02-06478 at 4 (App. Bd. Dec. 15, 2003). In this case, the Judge committed no error by considering the State Department travel warnings for the countries in question. Furthermore, the weight accorded the travel warnings was appropriate for the issue the Judge was assessing – the role of terrorism in the countries where Applicant has ties. In the appeal brief, Applicant also describes his upbringing and family situation and contends his family is not a threat to U.S. security interests. As best we can discern, he is arguing that the Judge did not consider all of the record evidence and mis-weighed the evidence. His arguments, however, are neither sufficient to rebut the presumption that the Judge considered all of the record evidence nor 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. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). 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 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