CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 10-04641.a1 — CASE

ISCR Case 10-04641.a1denied

Case Headnote

ISCR Case No. 10-04641.a1

Sep 24, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, holding dual citizenship with Israel and the U.S., was denied clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The judge identified disqualifying conditions C1 and B2, noting the applicant's extensive ties to Israel.

Key concerns included the applicant's military service in Israel and participation in Israeli elections, which were seen as indicators of a preference for Israel over the U.S. While mitigating condition C1 was considered, the judge ultimately determined that the favorable evidence presented did not sufficiently offset the security risks posed by these connections.

The initial denial was affirmed by the appeal board, which underscored the applicant's demonstrated preference for Israel. Consequently, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

C1raisedForeign Preference
B2raisedForeign Influence

Mitigating

C1rejectedMitigating Condition 11(a)The judge found that the applicant's dual citizenship was not solely based on parental citizenship, given his extensive ties to Israel.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 26, 2012
Answer filed—
Hearing heldJun 27, 2013
Decision dateSep 24, 2013

Cite For

Denial of Security Clearance Due to Foreign Preference Under Guideline C
Impact of Dual Citizenship on Security Clearance Decisions
Significant Family and Financial Ties to a Foreign Country as Disqualifying Factors

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

Reversed

The appeal involved a security clearance denial based on concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The Board affirmed the adverse decision under Guideline B but reversed the favorable decision under Guideline C, finding that the Judge's reasoning did not logically mitigate the concerns regarding the applicant's significant connections to Israel. The overall adverse decision was affirmed.

Appealed byboth parties

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided onthe written record

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 decision to take official notice of certain documents was erroneous.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not consider all of the evidence.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
Department Counsel argued that the Judge's favorable decision under Guideline C was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's adverse findings under Guideline B but reversed the favorable findings under Guideline C, concluding that the Judge's application of mitigating condition 11(a) was not supported by the weight of the evidence.

No rational connection between facts and conclusion

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: The Judge did not abuse his discretion in ruling on Official Notice documents. Applicant failed to rebut the presumption that the Judge considered all of the evidence. The Board cannot consider new evidence on appeal. The Judge erred in concluding that Foreign Preference Mitigating Condition 11(a) logically mitigated the concerns arising from Applicant’s significant connections to Israel. Adverse decision affirmed. CASE NO: 10-04641.a1 DATE: 09/24/2013 DATE: September 24, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-04641

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Gregg A. Cervi, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 26, 2012, DoD 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 decision on the written record. On June 27, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant appealed, and Department Counsel cross-appealed, pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s decision to take official notice of certain documents was erroneous; whether the Judge considered all of the evidence; and whether the Judge’s adverse decision under Guideline B was arbitrary, capricious, or contrary to law. Department Counsel raised the following issue on cross-appeal: whether the Judge’s favorable decision under Guideline C was arbitrary, capricious, or contrary to law. For reasons set forth below, we affirm the Judge’s adverse findings under Guideline B and reverse his favorable findings under Guideline C. The Judge’s Findings of Fact Applicant is an employee of a Defense contractor and has been so since 2009. He holds undergraduate and advanced degrees in his field. Applicant was born in Israel. His mother was a U.S. citizen who moved to Israel in the early 1970s. Because of his mother’s dual citizenship, Applicant also holds dual citizenship with Israel and the U.S. He moved to the U.S. in the late 2000s. Applicant’s wife and children are also dual citizens of Israel and the U.S. While living in Israel, Applicant completed mandatory military service. He worked for an arms company owned by the Israeli government, holding a top secret clearance. He also held a top secret clearance while working on a classified project with his private employer in the early 2000s. Applicant voted in several Israeli elections. He also held an Israeli passport, which he used for travel to Israel after moving to the U.S. This passport expired in early 2012. Applicant owns a house in Israel, and his parents live in the house. He maintains an Israeli driver’s license for travel in Israel when visiting his parents. Applicant’s sibling is a dual citizen of Israel and the U.S., living in Israel. He has two half- siblings who are citizens and residents of Israel, as are his parent-in-law. Applicant contacts his stepfather-in-law about 15 times a year. He has a sibling-in-law who is an Israeli citizen living in another country. He also has several former neighbors and colleagues living in Israel with whom he corresponds 10 to 15 times a year. Applicant’s net worth is about $1.5 million, of which about $1.2 million are in the U.S. The remainder is comprised of his home, a pension fund, and savings account, located in Israel. He is in the process of liquidating his pension fund and savings account. Israel is a parliamentary democracy with close ties to the U.S. There are several groups operating in Israel, the West Bank, and Gaza that the U.S. has designated as foreign terrorist organizations. Israel aggressively targets U.S. sensitive and protected technologies. Over the past years, Israeli intelligence officers have been implicated in intelligence collecting against the U.S. The Judge’s Analysis The Judge cleared Applicant under Guideline C. Although he concluded that Applicant’s circumstances raised concerns under that Guideline, he found that Applicant’s dual citizenship was a function of his mother’s having decided to relocate to Israel. He stated that Applicant’s “pursuit of higher education in Israel and his decision to stay in Israel after college to settle down and raise a family did not represent exercises of preference for Israel over the U.S. Rather, these actions were reflective of a young man who had spent his entire life in his home country. In sum, Applicant technically was a dual U.S. citizen, but Israel was his home.” Decision at 5. The Judge extended favorable application to mitigating condition 11(a): “dual citizenship is based solely on parents’ citizenship or birth in a foreign country.” The Judge also concluded that Applicant’s circumstances raised concerns under Guideline B. He further concluded that Applicant had failed to mitigate these concerns. He noted Applicant’s extensive family connections within Israel, Applicant’s financial ties within that country, and evidence that in the past persons have committed espionage against the U.S. on behalf of Israel. In the whole-person analysis, the Judge cited to evidence that paints Applicant to be highly talented and successful. However, he concluded that the favorable evidence in the record was not sufficient to mitigate the concerns arising from his connections in Israel.

DISCUSSION

Applicant’s Appeal Applicant challenges the Judge’s decision to take official notice of certain information. Specifically, he stated that some of the information referenced in Item 7, Official Notice Documents, referred to events that occurred several years ago and contends that these documents do not necessarily portray the current geopolitical situation in Israel. We have considered Applicant’s argument in light of the record as a whole. We examine a Judge’s ruling on official notice to see if it was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 01-08565 at 3 (App. Bd. Mar. 7, 2003).1 The Judge declined to take notice of one proffered document published 13 years ago. While some of the information referenced in the admitted portions of Item 7 goes back many years, we conclude that the challenged documents, viewed in context with the other Official Notice documents, could assist a reasonable person to grasp the geopolitical pressures impinging on Israel and that country’s stance on collecting foreign intelligence. While the Judge explicitly considered these documents, his treatment of them in the Analysis does not indicate that he gave them undue weight. Indeed, the gravamen of his Guideline B analysis was the extent of Applicant’s connections in Israel. We find no error in the Judge’s having taken official notice of the documents in question.

Applicant contends that the Judge did not consider all of the evidence, citing to favorable information conveyed through his interrogatory answers and his clearance interview. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-04413 at 2 (App. Bd. Feb. 16, 2012). Applicant’s brief contains evidence not included in the record regarding disposition of his real estate holdings in Israel. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. The Judge examined the relevant data and articulated a satisfactory explanation for the decision as it pertains to Guideline B. That analysis is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Department Counsel’s Cross-Appeal Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). In deciding whether the Judge's rulings or conclusions are erroneous, 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 ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel challenges the Judge’s favorable decision under Guideline C. He contends that Applicant’s circumstances, viewed as a whole, do not support the Judge’s favorable treatment of mitigating condition 11(a).2 We find this argument persuasive. Department Counsel contends that 11(a) contemplates U.S. citizens, born and raised in this country, who hold passive citizenship in another country by virtue of a parent’s citizenship. Although the reach of 11(a) is not limited to that particular scenario, Department Counsel’s contention that it does not logically mitigate Applicant’s circumstances has merit. In this case, Applicant was born in Israel, educated there, married and started a family there, served in its military and its defense industry, held Israeli security clearances, voted in Israeli elections, and, after moving to the U.S. in his mid-thirties, held and utilized an Israeli passport and an Israeli driver’s license. These connections with Israel are not fortuitous but, as the Judge himself noted, reflect conscious choices that Applicant made as an adult. While in no way reflecting poorly upon Applicant’s character in and of itself, they raise a reasonable concern that Applicant has, over the course of his adult life, shown a preference for Israel over the U.S. and that he might be prone to provide information harmful to the interests of the U.S. were he given access to U.S. classified information. We find persuasive Department Counsel’s argument that Applicant’s circumstances are at least equivalent to those of the applicant in ISCR Case No. 08-05869 (App. Bd. Jul. 24, 2009). In that case, the applicant had connections to Australia which included family members in that country, service in the Australian military, holding a top secret clearance with the Australian army, and voting in Australian elections. Given these connections, we stated that the applicant had a “heavy burden” to mitigate the Guideline C concerns alleged in the SOR, a burden that the applicant failed to meet. We noted that the applicant, by serving in a foreign military, had been willing to bear arms for another country, which we stated was strong evidence of an attachment to that country. In the case under consideration here, Applicant, when queried in an interrogatory, did not unequivocally abjure a continued willingness to bear arms for Israel.3 Considering the record as a whole, we conclude that the Judge’s favorable application of 11(a) runs contrary to the weight of the record evidence. This decision is not sustainable, in light of the standard set forth in Egan, supra.

ORDER

The Judge’s adverse decision under Guideline B is AFFIRMED. The Judge’s favorable decision under Guideline C is REVERSED. The overall adverse decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board

James E. Moody Administrative Judge Member, Appeal Board DATE: September 24, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-04641

DISCUSSION

Applicant’s Appeal Applicant challenges the Judge’s decision to take official notice of certain information. Specifically, he stated that some of the information referenced in Item 7, Official Notice Documents, referred to events that occurred several years ago and contends that these documents do not necessarily portray the current geopolitical situation in Israel. We have considered Applicant’s argument in light of the record as a whole. We examine a Judge’s ruling on official notice to see if it was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 01-08565 at 3 (App. Bd. Mar. 7, 2003).4 The Judge declined to take notice of one proffered document published 13 years ago. While some of the information referenced in the admitted portions of Item 7 goes back many years, we conclude that the challenged documents, viewed in context with the other Official Notice documents, could assist a reasonable person to grasp the geopolitical pressures impinging on Israel and that country’s stance on collecting foreign intelligence. While the Judge explicitly considered these documents, his treatment of them in the Analysis does not indicate that he gave them undue weight. Indeed, the gravamen of his Guideline B analysis was the extent of Applicant’s connections in Israel. We find no error in the Judge’s having taken official notice of the documents in question.

Applicant contends that the Judge did not consider all of the evidence, citing to favorable information conveyed through his interrogatory answers and his clearance interview. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-04413 at 2 (App. Bd. Feb. 16, 2012). Applicant’s brief contains evidence not included in the record regarding disposition of his real estate holdings in Israel. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. The Judge examined the relevant data and articulated a satisfactory explanation for the decision as it pertains to Guideline B. That analysis is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Department Counsel’s Cross-Appeal Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). In deciding whether the Judge's rulings or conclusions are erroneous, 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 ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel challenges the Judge’s favorable decision under Guideline C. He contends that Applicant’s circumstances, viewed as a whole, do not support the Judge’s favorable treatment of mitigating condition 11(a).5 We find this argument persuasive. Department Counsel contends that 11(a) contemplates U.S. citizens, born and raised in this country, who hold passive citizenship in another country by virtue of a parent’s citizenship. Although the reach of 11(a) is not limited to that particular scenario, Department Counsel’s contention that it does not logically mitigate Applicant’s circumstances has merit. In this case, Applicant was born in Israel, educated there, married and started a family there, served in its military and its defense industry, held Israeli security clearances, voted in Israeli elections, and, after moving to the U.S. in his mid-thirties, held and utilized an Israeli passport and an Israeli driver’s license. These connections with Israel are not fortuitous but, as the Judge himself noted, reflect conscious choices that Applicant made as an adult. While in no way reflecting poorly upon Applicant’s character in and of itself, they raise a reasonable concern that Applicant has, over the course of his adult life, shown a preference for Israel over the U.S. and that he might be prone to provide information harmful to the interests of the U.S. were he given access to U.S. classified information. We find persuasive Department Counsel’s argument that Applicant’s circumstances are at least equivalent to those of the applicant in ISCR Case No. 08-05869 (App. Bd. Jul. 24, 2009). In that case, the applicant had connections to Australia which included family members in that country, service in the Australian military, holding a top secret clearance with the Australian army, and voting in Australian elections. Given these connections, we stated that the applicant had a “heavy burden” to mitigate the Guideline C concerns alleged in the SOR, a burden that the applicant failed to meet. We noted that the applicant, by serving in a foreign military, had been willing to bear arms for another country, which we stated was strong evidence of an attachment to that country. In the case under consideration here, Applicant, when queried in an interrogatory, did not unequivocally abjure a continued willingness to bear arms for Israel.6 Considering the record as a whole, we conclude that the Judge’s favorable application of 11(a) runs contrary to the weight of the record evidence. This decision is not sustainable, in light of the standard set forth in Egan, supra.

ORDER

FOOTNOTES

1 For a more detailed analysis of the considerations appropriate to administrative or official notice in DOHA cases, see ISCR Case No. 03-21434 at 3-5 (App. Bd. Feb. 20, 2007).

2 Directive, Enclosure 2 ¶ 11(a): “dual citizenship is based solely on parents’ citizenship or birth in a foreign country[.]”

3 Item 6, Interrogatories, at 129: “This question is hypothetical, since I have fulfilled my military duties to Israel and, at the age of 40, am no longer considered a part of the reserve forces. Furthermore, as a non-combatant I have no military skills.” See also Item 6, Interview Summary, at 141: “When asked if he will renounce his Israel citizenship if required to obtain a clearance, he replied he probably would not renounce his Israel citizenship.”

4 For a more detailed analysis of the considerations appropriate to administrative or official notice in DOHA cases, see ISCR Case No. 03-21434 at 3-5 (App. Bd. Feb. 20, 2007).

5 Directive, Enclosure 2 ¶ 11(a): “dual citizenship is based solely on parents’ citizenship or birth in a foreign country[.]”

6 Item 6, Interrogatories, at 129: “This question is hypothetical, since I have fulfilled my military duties to Israel and, at the age of 40, am no longer considered a part of the reserve forces. Furthermore, as a non-combatant I have no military skills.” See also Item 6, Interview Summary, at 141: “When asked if he will renounce his Israel citizenship if required to obtain a clearance, he replied he probably would not renounce his Israel citizenship.”