Kenneth R. LEIBOWITZ, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent, 41 F. App'x 412

PER CURIAM. Kenneth R. Leibowitz seeks review of the June 22, 2001, decision of the Merit Systems Protection Board, No. NY-0731-00-0368-I-1, 88 M.S.P.R. 635, reversing the initial decision of the Administrative Judge and sustaining the negative suitability determination made by the Department of Justice’s Immigration and Naturalization Service (INS). We affim. Leibowitz applied for reinstatement to the position of District Adjudications Officer (DAO) with INS, which he had held from March of 1992 through July of 1995, until he resigned. The INS offered him the position subject to a background investigation.

During the investigation, Leibowitz admitted that an illegal alien, his brother-in-law, had been living in his house for approximately eighteen months. On May 17, 2000, citing 5 C.F.R. § 731.202, INS concluded that the results of Leibowitz’s background investigation raised serious questions about his suitability for employment, specifically that his conduct was in direct conflict with the mission of INS. It, therefore, withdrew him from consideration for the DAO position. Leibowitz appealed to the board which ultimately sustained INS’s negative suitability determination.

Our review is limited to setting aside any action that is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000). See Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998). A suitability determination is based upon a variety of factors including criminal or dishonest conduct related to the duties to be assigned to the applicant. 5 C.F.R. § 731.202(b) (2002).

An agency also considers the nature of the position for which the person is applying, the nature of the conduct, and the circumstances surrounding the conduct. Id. § 731.202(c). Leibowitz admits he sheltered a person whom he believed to be an illegal alien. Given his admission, the nature of INS’s mission and the position for which he applied, the board’s decision sustaining the negative suitability determination is not reversible.