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ISCR 07-06767.a1: Guideline B security clearance appeal, denied (2009) · CASE

ISCR Case 07-06767.a1denied

Case headnote

ISCR Case No. 07-06767.a1

May 19, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. citizen, born and raised in Israel, was denied a security clearance due to significant foreign influence, foreign preference, and outside activities related to Israel. The applicant's appeal was denied, with the board affirming that the security concerns were based on substantial evidence.

Disqualifying conditions included the applicant's numerous close relatives who are Israeli citizens or residents. The applicant also served three and a half years in the Israeli army and held positions with the Israeli Embassy.

Further concerns arose from the applicant registering his U.S.-born children as Israeli citizens and maintaining substantial business contacts in Israel. These factors collectively led to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 6raisedForeign Preference
AG ¶ 7raisedForeign Influence
AG ¶ 8raisedOutside Activities

Key rule quoted

“Substantial evidence is '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

Procedural posture

SOR issuedMar 31, 2008
Answer filed—
Hearing heldFeb 19, 2009
Decision dateMay 19, 2009

Cite for

Security Concerns Related to Foreign Influence Under Guideline B
Foreign Preference Issues Under Guideline C
Consideration of Outside Activities Under Guideline L

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 denial of a security clearance based on foreign preference and influence due to the applicant's ties to Israel. The applicant raised several issues regarding the Judge's findings and analysis. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline CGuideline BGuideline L

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that certain factual findings were not based on substantial record evidence.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant contended that the Judge erred in the application of pertinent mitigating conditions.
Whole-person analysis, raised by the applicantRejected
Applicant claimed that the Judge's whole-person analysis was erroneous.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that any errors were harmless, affirming the adverse decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference 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 C; Guideline B; Guideline L DIGEST: The Judge found that Applicant was raised in Israel, served in the Israeli army and has numerous close relatives who are citizens and/or residents of Israel. He registered his U.S.-born children as Israeli citizens. He has held positions with the Israeli Embassy, has held an Israeli passport, and traveled on it after becoming a U.S. citizen. He has stated a willingness to renounce his Israeli citizenship. He has business contacts in Israel, some of whom have previously held positions in the Israeli government. Israel is a parliamentary democracy with close security and cultural ties to the U.S. It is also an active collector of proprietary information. Applicant has made contributions to the security of the United States. Applicant has failed to demonstrate that the Judge’s material findings of security concern regarding Applicant’s circumstances are not based upon substantial record evidence. On balance, the Judge’s sustainable findings regarding Applicant’s circumstances support his adverse decision. The Judge examined the relevant data and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made. Adverse decision affirmed. CASENO: 07-06767.a1 DATE: 05/19/2009 DATE: May 19, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-06767

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Department Counsel FOR APPLICANT Richard L. Moorhouse, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 31, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference), Guideline B (Foreign Influence) and Guideline L (Outside Activities) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 19, 2009, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s factual findings were based upon substantial record evidence; whether the Judge erred in his application of the pertinent mitigating conditions; and whether the Judge’s whole-person analysis was erroneous. Finding no harmful error, we affirm. The Judge found, inter alia, that Applicant was born and raised in Israel. Applicant served 3 ½ years in the Israeli army. He became a U.S. citizen in the late 1990s. He has numerous close relatives who are citizens and/or residents of Israel. Applicant registered his U.S.-born children as Israeli citizens. In the past, he has held positions with the Israeli Embassy, has held an Israeli passport (surrendered in 2008), and has traveled on that passport after becoming a U.S. citizen. Applicant has stated a willingness to renounce his Israeli citizenship. He has substantial business contacts in Israel. Some of Applicant’s contacts in Israel have previously held positions in the Israeli government. Israel is a parliamentary democracy with close security and cultural ties to the U.S. It is also an active collector of proprietary information. Applicant has made contributions to the security of the United States. The Board concludes that Applicant has failed to demonstrate that the Judge’s material findings of security concern regarding Applicant’s circumstances highlighted in the previous paragraph are not based upon substantial record evidence. On balance, the Judge’s sustainable findings regarding Applicant’s circumstances support his adverse decision. See Directive ¶ E3.1.32.1. (Substantial evidence is “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.”) To the extent Applicant has demonstrated errors in the Judge’s findings of fact, such errors are ultimately harmless in that they would not be reasonably likely to change the outcome of the case. The Judge examined the relevant data and articulated 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 Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant’s security clearance” is sustainable on this record. Decision at 20. See also 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 adverse security clearance decision 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