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ISCR Case 03-21190.a1 — CASE

ISCR Case 03-21190.a1granted

Case Headnote

ISCR Case No. 03-21190.a1

Mar 12, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen with nearly thirty-five years of employment in the United States was granted a security clearance despite concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant's familial ties in Israel initially raised questions regarding potential foreign influence.

However, the Administrative Judge determined that the applicant's strong connections to the U.S. mitigated these concerns. Key factors included the applicant's long-term residency and successful employment history in the U.S., as well as the fact that his children are U.S. citizens.

Crucially, the applicant demonstrated no financial ties to Israel, further reducing the risk of foreign influence. Based on these mitigating factors, the security clearance was granted.

Key Rule Quoted

“Each clearance decision must be a . . . common sense determination based on consideration of all relevant and material information.”
— Directive ¶ 6.3.

Procedural Posture

SOR issuedAug 30, 2004
Answer filed—
Hearing heldJun 27, 2006
Decision dateMar 12, 2007

Cite For

Whole Person Analysis Under Guideline B
Mitigation of Foreign Influence Concerns Based on U.S. Ties
Consideration of Credibility in Testimony Regarding Foreign Relations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a security clearance decision where the Department Counsel challenged the Administrative Judge's favorable ruling regarding the applicant's ties to relatives in Israel under Guideline B. The Board affirmed the Judge's decision, finding it was not arbitrary or capricious and supported by substantial evidence.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowChristopher Graham — granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Rejected
The Judge's whole person analysis was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found that the Judge's whole person analysis was supported by substantial evidence and was not arbitrary or capricious. The Judge's conclusions regarding the applicant's ties to the U.S. were rational and based on unchallenged findings of fact.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

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

Full decision

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

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline B; Guideline C DIGEST: The Judge’s whole person analysis relied on numerous unchallenged findings of fact. Given the totality of facts and circumstances the Judge’s favorable security clearance decision is not arbitrary capricious or contrary to law. The Judge analysis of mitigating conditions under Guideline B contains problematic statements of law including Board precedent. CASENO: 03-21190.a1 DATE: 03/12/2007 DATE: March 12, 2007 In Re: ------ SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-21190

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Kathryn D. MacKinnon, Esq., Department Counsel FOR APPLICANT Sheldon I. Cohen, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 30, 2004, DOHA issued a statement of reasons advising Applicant of the basis The Government’s assignment of errors and brief refer only to Guideline B. The Judge’s favorable decision as to Guideline C security concerns, therefore, is not at issue. The Judge’s analysis of possible mitigating conditions under Guideline B contains problematic statements of law, including Board precedent, such as: “[T]he Appeal Board prohibits any consideration of evidence that is not dispositive of the issue.” The Judge cited no authority for this statement. We note that this Board places no such limitation on the admission or consideration of evidence, the Directive requiring that “[e]ach clearance decision must be a . . . common sense determination based on consideration of all relevant and material information.” ¶ 6.3. Compare ISCR Case No. 04-11571 at 2-3 (App. Bd. Feb. 8, 2007). for that decision—security concerns raised under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 27, 2006, after the hearing, Administrative Judge Christopher Graham granted Applicant’s request for a security clearance. Department Counsel submitted a timely appeal, and Applicant cross-appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge resolved concerns under Guideline B about Applicant’s ties of affection to his relatives in Israel by a “whole person” analysis that was arbitrary, capricious, and contrary to law. Department Counsel argued that the Judge’s whole person analysis was conclusory in nature and not based upon substantial record evidence. In his whole person analysis, the Judge relied on numerous unchallenged findings of fact which cumulatively support his ultimate conclusion that Applicant has sufficiently strong ties to the U.S. to overcome the government’s security concerns. These facts include the following: Applicant is a U.S. citizen with “almost thirty-five years of successful employment in this country;” Applicant was educated in the U.S.; his children are U.S. citizens; and Applicant has no financial ties to Israel. The Judge also found that Israel’s status as a U.S. ally renders it less likely that Israel would exploit Applicant’s relatives. In addition, the Judge stated that Applicant’s demeanor buttressed the credibility of his testimony that he has attachments in the U.S. and will protect U.S. secrets. See Directive ¶ E3.1.32.1 (“[T]he Appeal Board shall give deference to the credibility determinations of the Administrative Judge.”); ISCR Case No. 02-03186 (App. Bd. Feb. 15, 2006). Given the record before him, the Judge has articulated a rational explanation for his favorable decision. An issue on appeal concerns Applicant’s brother, a retired Israeli military officer. In a similar situation, the Board noted there was no basis to conclude that an applicant’s brother (who was a retired officer in the Air Force of Taiwan) is currently an agent of the government. See ISCR 03-17071 at 4 (App. Bd. Nov. 22, 2006). An appealing party’s disagreement with a Judge’s decision is not a sufficient basis to establish that he erred. See, e.g., ISCR Case No. 01-05912 (App. Bd. Aug. 29, 2001). The Board concludes that the Judge’s favorable security clearance decision is not arbitrary, capricious, or contrary to law, given the totality of facts and circumstances in this case. See Directive ¶ E3.1.32.3. Because of this holding, issues raised by Applicant on cross-appeal are moot.

ORDER

The decision of the Administrative Judge granting Applicant a clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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