A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 02-09892

Appeal Board

Decided Jul 15, 2004 · Administrative Judge Jean E. Smallin · Appeal

Reading

Workbench

Appeal at a glance

The appeal involved a denial of security clearance based on foreign preference and influence due to the applicant's possession of an Iranian passport and ties to family members in Iran. The applicant argued that the Administrative Judge erred in his conclusions. The Board affirmed the decision, finding no harmful error in the Judge's reasoning or conclusions.

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

Open original PDF

The complete official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

Appearances

nder Guideline C. "Legal necessity" defense raised with respect to possession of a foreign passport is precluded by the terms of the ASDC3I memorandum on foreign

Appeal Board Decision

possession of a current Iranian passport provides a rational basis for the Judge's adverse conclusions under Guideline C. "Legal necessity" defense raised with respect to possession of a foreign passport is precluded by the terms of the ASDC3I memorandum on foreign

Discussion

assports. The Judge was not required to consider the facts and circumstances of Applicant's ties with family members living in Iran, one family member at a time. To the contrary, the Judge had to consider the totality of Applicant's ties with family members living in Iran. Given the record evidence in this case, the Judge had a rational basis for concluding the totality of the facts and circumstances of Applicant's ties with family members living in Iran raises security concerns under Guideline B. Adverse decision affirmed.

-->   <!-- 02-09892.a1

-->   <!-- 07/15/2004

-->

DATE: July 15, 2004

<HR>

In Re:

-----------------

SSN: -----------

Applicant for Security Clearance

<HR>

ISCR Case No. 02-09892

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Eric Borgstrom, Esq., Department Counsel

FOR APPLICANT

Aria Shariati, Esq.

The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) dated July 30, 2003 which stated the reasons why DOHA

proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline C (Foreign Preference) and Guideline B (Foreign

Influence). Administrative Judge James A. Young issued an unfavorable security clearance decision dated January 27, 2004.

Applicant appealed the Administrative Judge's unfavorable decision. The Board has jurisdiction under Executive Order 10865 and Department of Defense Directive

5220.6 (Directive), dated January 2, 1992, as amended.

The following issues have been raised on appeal: (1) whether the Administrative Judge erred by reaching adverse conclusions under Guideline C (Foreign Preference); (2)

whether the Administrative Judge erred by reaching adverse conclusions under Guideline B (Foreign Influence); and (3) whether the Board should remand the case to the

Administrative Judge for further proceedings. For the reasons that follow, the Board affirms the Administrative Judge's decision.

<CENTER>Scope of Review</CENTER>

On appeal, the Board does not review a case de novo. Rather, the Board addresses t

Appeal Issues

e material issues raised by the parties to determine whether there is factual or legal

error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and identify how the Administrative Judge committed

factual or legal error. Directive, Additional Procedural Guidance, Item E3.1.32. See also ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why

party must raise claims of error with specificity).

When the rulings or conclusions of an Administrative Judge are challenged, the Board must consider whether they are: (1) arbitrary or capricious; or (2) contrary to law.

Directive, Additional Procedural Guidance, Item E3.1.32.3. In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the

Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational

connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect

of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of

opinion. See, e.g., ISCR Case No. 97-0435 (July 14, 1998) at p. 3 (citing Supreme Court decision). In deciding whether the Judge's rulings or conclusions are contrary

to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. Compliance with state

or local law is not required because security clearance adjudications are conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Article

VI, clause 2 (Supremacy Clause). See, e.g., ISCR Case No. 00-0423 (June 8, 2001) at p. 3 (citing Supreme Court decisions).

When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact are supported by 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. In making this review,

the Appeal Board shall give deference to the credibility determinations of the Administrative Judge." Directive, Additional Procedural Guidance, Item E3.1.32.1. The

Board must consider not only whether there is record evidence supporting a Judge's findings, but also whether there is evidence that fairly detracts from the weight of the

evidence supporting those findings, and whether the Judge's findings reflect a reasonable interpretation of the record evidence as a whole. Although a Judge's credibility

determination is not immune from review, the party challenging a Judge's credibility determination has a heavy burden on appeal.

When an appeal issue raises a question of law, the Board's scope of review is plenary. See DISCR Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal

cases).

If an appealing party demonstrates factual or legal error, then the Board must consider the following questions:

Is the error harmful or harmless? See, e.g., ISCR Case No. 00-0250 (July 11, 2001) at p. 6 (discussing harmless error doctrine);

Has the nonappealing party made a persuasive argument for how the Administrative Judge's decision can be affirmed on alternate grounds? See, e.g., ISCR Case No.

99-0454 (October 17, 2000) at p. 6 (citing federal cases); and

If the Administrative Judge's decision cannot be affirmed, should the case be reversed or remanded? (Directive, Additional Procedural Guidance, Items E3.1.33.2 and

E3.1.33.3).

<CENTER>Appeal Issues</CENTER>

1. Whether the Administrative Judge erred by reaching adverse conclusions under Guideline C (Foreign Preference). The Administrative Judge entered formal findings

against Applicant under Guideline C based on her possession of a current Iranian passport, which she renewed at the insistence of Iranian authorities so that her children

could travel to Iran with their father to visit their paternal grandmother. The Judge concluded that Applicant's possession of the Iranian passport falls under the terms of

the memorandum on foreign passports issued by the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASDC3I) on August 16,

2000, and that Applicant's reason for renewing her Iranian passport was not extenuating or mitigating under Guideline C. Applicant challenges the Judge's adverse

conclusions under Guideline C. In support of that challenge, Applicant argues: (a) her situation is similar to other cases in which DOHA Judges have made favorable

security clearance decisions; (b) the Judge failed to take into account the facts and circumstances of her trips to Iran before she became a naturalized U.S. citizen; (c) she

has not used her Iranian passport since she became a naturalized U.S. citizen; (d) she does not have a preference for Iran over the United States; (e) she does not intend

to travel to Iran; (f) she tried to surrender her Iranian passport but was not allowed to do so by Iranian officials; and (g) she did not voluntarily renew her Iranian passport,

but rather had it renewed under duress. For the reasons that follow, the Board concludes Applicant has failed to demonstrate the Judge erred.

The decisions by Hearing Office Administrative Judges in other cases cited by Applicant do not demo

Conclusion

strate the Administrative Judge erred in this case. A decision by a

Hearing Office Judge is not legally binding precedent on another Hearing Office Judge or the Board. See, e.g., ISCR Case No. 01-22606 (June 30, 2003) AT PP. 3-5.

The Judge in this case was not required to follow the decisions of his colleagues