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ISCR 08-05034.a1: Guideline B security clearance appeal, denied (2009) · CASE

ISCR Case 08-05034.a1denied

Case headnote

ISCR Case No. 08-05034.a1

May 21, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A software engineer for a defense contractor was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant, a dual national of the U.S. and Israel, had extensive family ties in Israel, including siblings employed by the Israeli government.

The denial was primarily based on the applicant's dual nationality and her unwillingness to renounce her Israeli citizenship. These factors raised significant security concerns regarding potential foreign influence and preference.

The appeal board affirmed the denial, concluding that the applicant failed to mitigate the issues stemming from her dual nationality and her family's connections to the Israeli government. The board found that disqualifying conditions C1 and B2 were not overcome, leading to the final denial of her security clearance.

Conditions referenced

Disqualifying

C1raisedDual Citizenship
B2raisedForeign Influence Due to Family Ties

Key rule quoted

“It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance.”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedAug 13, 2008
Answer filed—
Hearing heldMar 10, 2009
Decision dateMay 21, 2009

Cite for

Security Concerns Related to Dual Nationality Under Guideline C
Impact of Family Ties on Security Clearance Under Guideline B
Affirmation of Adverse Decisions Based on National Interest Standards

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 an applicant seeking a security clearance who was denied due to security concerns related to her dual nationality and family ties in Israel. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the findings were supported by substantial evidence and that the decision was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
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 DIGEST: Record evidence of Applicant’s extensive family contacts in Israel, her dual nationality, and her possession of an Israeli passport support the Judge’s conclusion that she had not mitigated the security concerns in her case. Adverse decision affirmed. CASENO: 08-05034.a1 DATE: 05/21/2009 DATE: May 21, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-05034

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 13, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference) and Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 10, 2009, after the hearing, Administrative Judge Claude R. Heiny denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a software engineer for a defense contractor. Applicant became a citizen of Israel, having moved there with her parents at a young age. She was educated in Israel and moved to the U.S. in the late 1970s, becoming a naturalized U.S. citizen in the mid-1980s. She is a dual national and is unwilling to renounce her Israeli citizenship, although she stated that she would renounce her Israeli passport if needed for her employment. There is no evidence that this has been done. She has five siblings who are citizens and residents of Israel. She maintains contact with four of them. Three of her siblings are employees of the Israeli government, including one who works for the Israeli Ministry of Defense.

In support of her appeal Applicant has submitted new matters (primarily her statement that she has now surrendered her passport), not contained in the record. The Board cannot consider this new evidence. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 eligibility for a security clearance” is sustainable on this record. Decision at 10. 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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