DATE: December 20, 2005

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

Applicant for Security Clearance

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 Applicant a Statement of Reasons (SOR), dated June 14, 2004, which stated the reasons why DOHA proposed to deny or revoke Applicant's access to classified information. The SOR was based upon Guideline B (Foreign Influence) and Guideline E (Personal Conduct). Administrative Judge Darlene Lokey Anderson issued an unfavorable security clearance decision, dated June 20, 2005.

Applicant appealed the Administrative Judge's unfavorable decision. The Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended.

Applicant's appeal presents the following issue: whether the Administrative Judge erred in concluding that the security concerns raised by the Guideline B (Foreign Influence) allegations had not been mitigated. For the reasons that follow, the Board affirms the Administrative Judge's decision.

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

Whether the Administrative Judge erred in concluding that the security concerns raised by the Guideline B (Foreign Influence) allegations had not been mitigated. Applicant argues that the evidence he provided in the proceeding below was sufficient to require the Administrative Judge to conclude that he had rebutted, mitigated or extenuated the security concerns raised by the Guideline B (Foreign Influence) allegations. For the reasons that follow, the Board concludes Applicant's arguments do not demonstrate the Judge erred.

The Administrative Judge made unchallenged findings that: (1) Applicant has a large family in Lebanon, including his parents, two brothers, two sisters and other extended family members that he remains close to, (2) Applicant provides financial support to his parents in Lebanon on a regular basis, and (3) Applicant has done favors for one of his brothers, resulting in dishonest conduct when Applicant agreed to accept title to real estate owned by his brother, for the sole purpose of avoiding legal process against his brother. ⁽²⁾ Given those findings, the Judge concluded that Applicant's ties with his immediate family members raised security concerns under Guideline B and that Foreign Influence Disqualifying Condition 1 ⁽³⁾ applied. See ISCR Case No. 01-22606 (June 30, 2003) at p. 6. That conclusion shifted the burden of persuasion to Applicant. Directive, Additional Procedural Guidance, Item E3.1.15.

Applicant contends that the Administrative Judge gave insufficient weight to evidence that: (1) Applicant's relatives in Lebanon were not agents of the Lebanese government, (2) Applicant's contacts were exclusively familial, and devoid of political context, (3) Applicant is a loyal American citizen, with strong family and financial ties to the United States, and (4) Applicant's ties to Lebanese citizens, including many of his relatives, are casual and infrequent, and would not subject him to coercion, exploitation, or pressure. The Board interprets Applicant's contentions as raising the specific issues of whether the Judge (1) erred in not applying Foreign Influence Mitigating Conditions 1 ⁽⁴⁾ and 3, ⁽⁵⁾ (2) failed to consider mitigating evidence, and (3) made an unfavorable decision that is unsupported by the record as a whole.

Even assuming none of Applicant's family members were agents of the Lebanese government, Applicant still had the burden of demonstrating that his family members in Lebanon were not in positions where they are likely to be exploited by a foreign power. Applicant's arguments do not demonstrate that it was arbitrary, capricious, or contrary to law for the Administrative Judge to conclude that Applicant had not met his burden of establishing that his relatives were not in a position to be exploited by a foreign power in a way that could force him to choose between loyalty to those relatives and the United States. Mere disagreement with the Judge's weighing of the evidence is not sufficient to demonstrate error without a showing that the Judge's weighing of the evidence was arbitrary, capricious, or contrary to law. After reviewing the record evidence, the Board concludes that the Judge's decision not to apply Mitigating Condition 1 is sustainable.

There is a rebuttable presumption that contacts with immediate family members are not casual. See, e.g., ISCR Case No. 00-0484 (February 1, 2002) at p. 5. Applicant's arguments do not demonstrate that it was arbitrary, capricious, or contrary to law for the Administrative Judge to conclude that Applicant had not met his burden of establishing that his contacts with his relatives were casual and infrequent. After reviewing the record evidence, the Board concludes that the Judge's decision not to apply Mitigating Condition 3 is sustainable.

Regarding the Administrative Judge's overall unfavorable security clearance decision, Applicant's ability to cite to record evidence to which he contends the Judge should have given greater weight--such as the length of Applicant's United States citizenship and the extent of his financial and other ties to the United States--is not sufficient to demonstrate error on the part of the Judge. Merely because a Judge does not give greater weight to record evidence cited by the appealing party, it does not follow that the Judge simply ignored that evidence. The Government has not alleged, and the evidence does not show, Applicant is anything but a loyal United States citizen. However, the issue is not Applicant's loyalty, but whether he is vulnerable to foreign influence that could result in the compromise of classified information. Considering the record as a whole, it was not arbitrary, capricious or contrary to law for the Judge to conclude that Applicant had failed to provide sufficient evidence in mitigation to support a favorable security clearance determination.

Applicant has failed to demonstrate harmful error below. Accordingly, the Board affirms the Administrative Judge's adverse security clearance decision.

Signed: Jeffrey D. Billett

Jeffrey D. Billett

Administrative Judge

Member, Appeal Board

Signed: Jean E. Smallin

Jean E. Smallin

Administrative Judge

Member, Appeal Board

Signed: William S. Fields

William S. Fields

Administrative Judge

Member, Appeal Board

1. The Administrative Judge found in favor of Applicant with respect to the Guideline E allegations. That favorable finding is not at issue on appeal. The Judge did not enter formal findings with respect to SOR subparagraphs 1.f, 1.g, 1.h, 1.i, 2.b, and 2.c. For the purposes of this appeal, the Board will assume that those findings were made in favor of Applicant and are, therefore, not at issue.

2. Decision at p. 6.

3. Directive, Enclosure 2, Item E2.A2.1.2.1 ("An immediate family member, or person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country").

4. Directive, Enclosure 2, Item E2.A2.1.3.1 ("A determination that the immediate family member(s), (spouse, father, mother, sons, daughters, brother, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States").

5. Directive, Enclosure 2, Item E2.A2.1.2.3 ("Contact and correspondence with foreign citizens are casual and infrequent").