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ISCR Case No. 02-10601

Appeal Board

Decided Dec 14, 2004 · Administrative Judge Kathryn Moen Braeman · Appeal

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The appeal involved a review of an unfavorable security clearance decision based on foreign preference and foreign influence. The applicant argued that the Administrative Judge erred in not considering new evidence regarding his Iranian passport and in not applying favorable conditions under the Adjudicative Guidelines. The Board affirmed the decision, finding no harmful error in the Judge's conclusions.

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Appearances

t, the Judge properly concluded the August 16, 2000 memorandum concerning foreign passports required an unfavorable decision. Adverse decision affirmed.

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Appeal Board Decision

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DATE: December 14, 2004

<HR>

In Re:

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

Applicant for Security Clearance

<HR>

ISCR Case No. 02-10601

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR), dated September 3, 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 Kathryn Moen Braeman issued an unfavorable security clearance decision,

dated September 1, 2004.

Applicant appealed the Administrative Judge's unfavorabl

Appeal Issues

tion 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 Issue<A HREF="#N_1_"> (1)</A></CENTER>

1. Whether the Board can consider evidence of what Applicant has done with respect to his Iranian passport since the close of the record evidence.

The Administrative Judge found that Applicant had possessed and used an Iranian passport in the past, and that Applicant possesses a current Iranian

passport. Applicant does not challenge those findings on appeal. However, Applicant makes assertions about what he was done with his Iranian

passport since he submitted his response to the File of Relevant Material in January 2004.

Applicant's statements about what he has done since the close of the record evidence constitute a proffer of new evidence. The Board reviews an

Administrative Judge's decision based on the record evidence that was before the Judge, and cannot consider new evidence on appeal. See Directive,

Additional Procedural Guidance, Item E3.1.29. In this case, the record evidence was closed with Applicant's response to the File of Relevant

aterial. Accordingly, the Board cannot consider Applicant's statements about what he has done since he submitted his response to the File of

Relevant Material.

2. Whether the Administrative Judge should have made a favorable security clearance decision based on an evaluation of the Adjudicative Guidelines

provisions pertaining to Guideline C (Foreign Preference). Applicant recites the disqualifying and mitigating conditions under Guideline C and argues

that: (a) the disqualifying conditions do not apply to him; and (b) the mitigating conditions do apply to him. The Board construes Applicant's brief as

raising the issue of whether the Administrative Judge should have made a favorable security clearance decision based on an evaluation of the

Adjudicative Guidelines pertaining to Guideline C. When a Judge's application of the Adjudicative Guidelines is challenged on appeal, the Board must

consider whether the appealing party has shown the Judge's application is (i) not supported by the record evidence; (ii) arbitrary or capricious; or (iii)

contrary to law. See, e.g., ISCR Case No. 02-15539 (April 29, 2004) at p. 4.

The Administrative Judge did not apply Foreign Preference Disqualifying Conditions 3 through 9 in making her security clearance decision.

Accordingly, Applicant's arguments concerning those disqualifying conditions are moot and need not be addressed by the Board.<A HREF="#N_2_"> (2)</A>

Applicant's arguments concerning Foreign Preference Disqualifying Conditions 1<A HREF="#N_3_"> (3)</A> and 2<A HREF="#N_4_"> (4)</A> do not demonstrate the Administrative Judge erred by

applying them in this case. The record evidence concerning Applicant's possession and use of an Iranian passport provided a rational basis for the

Judge to conclude those two disqualifying conditions should be applied in this case.

Applicant's arguments concerning the applicability of Foreign Preference Mitigating Conditions 1,<A HREF="#N_5_"> (5)</A> 2,<A HREF="#N_6_"> (6)</A> and 3<A HREF="#N_7_"> (7)</A> also do not demonstrate the

Administrative Judge erred. Because Applicant's possession and use of an Iranian passport continued after he became a naturalized U.S. citizen in

1999, the Judge was not compelled to conclude Applicant's conduct was mitigated under Foreign Preference Mitigating Conditions 1 and 2. See, e.g.,

ISCR Case No. 00-0489 (January 10, 2002) at pp. 10-11 (conduct by an applicant which is probative of a foreign preference can be considered

under Guideline B even though it occurred after the applicant became a naturalized U.S. citizen). Applicant's reliance on a State Department advisory

about the use of passports is misplaced. The State Department advisory is not binding on the Department of Defense with respect to its adjudication of

security clearance cases, and it does not satisfy the requirements of the August 16, 2000 Department of Defense memorandum concerning foreign

passports. See, e.g., ISCR Case No. 00-0489 (January 10, 2002) at p. 8; ISCR Case No. 99-0424 (February 8, 2001) at pp. 5-6. Therefore,

Applicant was not entitled to have the Judge apply Foreign Preference Mitigating Condition 3.

The Board need not decide whether the Administrative Judge should have applied Foreign Preference Mitigating Condition 4<A HREF="#N_8_"> (8)</A> in this case, as argued

by Applicant. Even if the Board were to assume -- solely for purposes of deciding this appeal -- that the Judge erred by not applying Foreign

Preference Mitigating Condition 4, such an error would be harmless. Given the record evidence of Applicant's continued possession of an Iranian

passport, the Judge correctly concluded that an unfavorable security clearance decision was warranted under the terms of the August 16, 2000

Department of Defense memorandum concerning foreign passports. The Judge could not apply Foreign Preference Mitigating Condition 4 to

supersede or avoid the application of that memorandum. See, e.g., ISCR Case No. 01-22693 (September 22, 2003) at p. 6.

<CENTER>Conclusion</CENTER>

Except for the possibility of one instance of harmless error, Applicant has not demonstrated that the Administrative Judge's unfavorable security

clearance decision is arbitrary, capricious, or contrary to law. Accordingly, the Board affirms the Judge's unfavor

Conclusion

ble security clearance decision.

Signed: Emilio Jaksetic

Emilio Jaksetic

Administrative Judge

Chairman, Appeal Board

Signed: Jeffrey D. Billett

Jeffrey D. Billett

Administrative Judge

Member, Appeal Board

Signed: William S. Fields

William S. Fields