KEYWORD: Guideline B
DIGEST: The security concern in this case arose from Applicant’s brother, whose prominence in
a highly technical field might draw the brother to the attention of parties interested in acquiring
U.S. technology.  Applicant maintains frequent contact with the brother and his family.  The
record will not sustain the Judge’s conclusion that Applicant mitigated these security concerns. 
Favorable decision reversed.  
CASENO: 08-10025.a1
DATE: 11/03/2009
DATE: November 3, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-10025
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James F. Duffy, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On January 8, 2009, DOHA 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 July 24, 2009, after the hearing, Administrative Judge Paul J. Mason
REDACTED .  1
granted Applicant’s request for a security clearance.  Department Counsel appealed pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether certain of the Judge’s
factual findings were supported by substantial record evidence; whether the Judge’s application of
the pertinent mitigating conditions was erroneous; and whether the Judge’s whole-person analysis
was erroneous.  Finding error, we reverse.
The Judge found as follows: Applicant is a 53 year-old engineer working for a federal
contractor.  He became a U.S. citizen in the early 1990s.  Applicant’s parents live in Nigeria, where
they are retired.  Applicant’s brother (A) is a high-level official in the Nigerian government.   He has1
another brother and a sister who are employed by a state government in Nigeria.  Applicant speaks
with these siblings every two weeks by telephone.
Nigeria is a nation with a poor human rights record.  It has experienced periodic armed
conflicts among religious, political and ethnic factions.  The current president is working to restore
peace and security to Nigeria.  The previous U.S. administration considered Nigeria an important
partner in the war on terror.
Department Counsel has challenged the Judge’s findings concerning Applicant’s brother A.
Specifically, he contends that the Judge’s finding that A exercises no policy-making authority is
without foundation in the record.
The Appeal Board  reviews the Judge’s findings of facts to determine if they are supported
by substantial evidence–“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.”  Directive  ¶ E3.1.32.1.
“This is something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from
being supported by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620
(1966).  In evaluating the Judge’s findings, we defer to the Judge’s credibility determinations.
Directive ¶ E3.1.32.1.
In the Findings section of the decision, the Judge quoted Applicant’s testimony to the effect
that A works in a strictly technical position.  Although the findings do not mention policy per se, the
implication of the quoted testimony is that A is not involved in formulating policy for the Nigerian
government.  Department Counsel’s argument that this finding does not take into account contrary
record evidence is persuasive.  In addition to the portion quoted by the Judge, Applicant testified
elsewhere concerning his brother.  He described A as being similar to a  “CEO,” that he travels
frequently to the U.S., and is involved in “the policy of organizations” that are addressing matters
of national importance. Although the record does not go into great detail as to the nature of A’s
work, it is reasonable to believe that a government official such as A would exercise responsibility
at the policy-making level.  Applicant did not provide anything to corroborate his statement to the
Judge that A’s position is a purely technical one.  Applicant did not provide information about the
organization with which A is affiliated, though it is likely that such information would have been
readily available.  The decision does not analyze Applicant’s testimony or attempt to explain why
the Judge found the quoted portion of Applicant’s testimony to be a definitive statement of the nature
A’s duties.  Neither does it address Applicant’s own use of the word “policy” in describing A’s
activities.  Therefore, to the extent that the Judge’s use of the quoted portion of Applicant’s
testimony reasonably implies a finding that A is involved in purely technical matters, this finding
is unsupported by the record evidence viewed as a whole.
A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
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.  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.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
The Judge concluded that Applicant’s contacts in Nigeria raised Guideline B security
concerns.  However, he further concluded that Applicant had demonstrated mitigation under Foreign
Directive ¶ E2.8(b).2
Influence Mitigating Condition (FIMC) 8(b).   This provision mitigates security concerns when an2
applicant’s ties to the foreign contact are minimal or his ties to the U.S. are so deep and
longstanding, that he can be expected to resolve any potential conflict of interest in favor of the U.S.
The Judge stated that, insofar as Applicant’s brother occupies a technical position in government,
one that does not involve security or financial matters, he is not likely to become a means through
which Applicant could be pressured to compromise classified information.  Department Counsel
persuasively argues that the Judge’s analysis is not supported by the record evidence.
Despite our conclusion that the Judge erred in his finding about A’s responsibilities, the
Board is not convinced that the distinction between a technical position and a policy-making one is
meaningful in a security clearance context, especially under the facts of this case.  Applicant’s
contentions in this regard appear to have been an effort to demonstrate that A is not in a position to
have sanctioned or have participated in human rights violations.  However, there is nothing in the
record to suggest that he has engaged in such activity and the Board is not basing its decision on such
a supposition.  Rather, the security concern is rooted in A’s prominence in a highly-sensitive field
that could draw him to the attention of parties interested in acquiring U.S. technology.  This concern
applies regardless of whether A actually formulates policy or simply advises those who do.
As stated above, A has a high-level position and enjoys a reputation beyond the Nigerian
borders.  Applicant has testified that he speaks to his brother frequently and serves as a surrogate
uncle for A’s children who live in the U. S.  Given those facts, it is foreseeable that he could become
a means through which parties within or outside of Nigeria could attempt to exert pressure on
Applicant.  The record evidence is not sufficient to demonstrate that, given the possibility of such
a situation, Applicant’s obligation to the U.S. would necessarily outweigh his ties to his brother or
to his other relatives in Nigeria.  Application of the guidelines is not a comment on an applicant’s
patriotism but merely an acknowledgment that people may act in unpredictable ways when faced
with choices that could be important to a loved-one, such as a family member.  “Any doubt
concerning personnel being considered for access to classified information will be resolved in favor
of the national security.”  Directive ¶ E2.2(b).  
The record does not support a reasonable conclusion that Applicant has met his burden of
persuasion, either under the mitigating conditions or the whole-person factors.  The Judge’s decision
does not consider an important aspect of the case and offers an explanation that runs contrary to the
weight of the record evidence.  ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).
Accordingly, in light of the record and considering the Egan standard, the Judge’s favorable decision
is not sustainable.  See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general
standard is that a clearance may be granted only when ‘clearly consistent with the interests of the
national security’”).
Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Michael Y. Ra’anan           
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: William S. Fields             
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board