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ISCR Case 17-01969 — CASE

ISCR Case 17-01969granted

Case Headnote

ISCR Case No. 17-01969

grantedMay 7, 2019· Hon. Marc E. Curry· hearing

Summary

This case concerns a 52-year-old naturalized U.S. citizen and university professor whose security clearance was reviewed under Guideline B (Foreign Influence). The Statement of Reasons alleged foreign influence concerns due to his family members residing in the West Bank. Specifically, disqualifying conditions AG ¶ 7(a) and AG ¶ 7(b) were raised.

The applicant admitted to the allegations but presented substantial mitigating factors. He has resided in the U.S. for over 25 years, establishing deep community roots, and is recognized as a highly respected scientist with significant professional achievements and community involvement. His financial support for his mother in the West Bank was determined to be manageable and not indicative of a conflict of interest.

Applying mitigating condition AG ¶ 8(b), the adjudicator found that the applicant had successfully mitigated the foreign influence security concerns. Given his strong ties to the U.S. and professional standing, the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant has lived in the U.S. for over 25 years and has established deep roots in the community.
He is a highly respected scientist with significant professional accomplishments and community involvement.
The applicant's financial support for his mother in the West Bank was deemed manageable and not a conflict of interest.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons Creating Potential Conflict of Interest

Mitigating

AG ¶ 8(b)appliedNo Conflict of Interest Due to Strong U.S. Ties

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedJan 3, 2018
Answer filedJan 22, 2018Applicant admitted all allegations.
Hearing heldMar 7, 2019
Decision dateMay 7, 2019

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Community Ties and Professional Respect in Security Clearance Decisions
Application of the Whole-person Concept in Evaluating Security Clearance Eligibility

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

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found that the applicant mitigated foreign influence security concerns related to his family members residing in the West Bank. Despite the risks associated with the region, the applicant's strong ties to the United States and his commitment to resolving any potential conflicts in the U.S. interest led to a favorable decision for the applicant.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant mitigated the foreign influence security concerns generated by his family members who are residents of the West Bank.	For Applicant	Sibling in Foreign Country Immediate Family	West Bank HEIGHTENED RISK	Admitted	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Credited Deep U.S. Ties
1.b–1.d	3 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 17-01969 ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se 05/07/2019 __________ Decision __________ Curry, Marc, Administrative Judge: Applicant mitigated the foreign influence security concerns generated by his family members who are residents of the West Bank. Clearance is granted.

STATEMENT OF CASE

On January 3, 2018, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) alleging security concerns under Guideline B (foreign influence). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position, effective June 8, 2017. The SOR further informed Applicant that, based on information available to the Government, DOD adjudicators could not make the affirmative finding that it is clearly consistent with the interests of national security to grant or continue Applicant’s security clearance. It recommended that his case be submitted to an administrative judge for a determination whether his clearance should be granted, continued, denied, or revoked.

On January 22, 2018, Applicant responded to the SOR, admitting all of the allegations, and requested a hearing. The case was assigned to me on January 16, 2019. On February 13, 2019, DOHA issued a notice of hearing, scheduling the case for March 7, 2019. The hearing was held as scheduled. At the hearing, Department Counsel submitted two documents for admission that I marked as Government Exhibits (GEs) 1 and 2. Applicant submitted 13 exhibits, incorporated into the record as Applicant’s Exhibits (AE) A through O.

I took administrative notice, at Department Counsel’s request, of the facts encapsulated within seven source documents, identified as Hearing Exhibits (HE) I through HE VII. Also, I incorporated Department Counsel’s corresponding memo and Department Counsel’s discovery letter to Applicant, as HE VIII and HE IX, respectively. The transcript was received on February 26, 2019.

FINDINGS OF FACT

Applicant is a 52-year-old married man with a 13-year-old daughter. He was born and raised in the West Bank, which was then part of Jordan, and is now governed by the Palestinian Authority. He earned a bachelor’s degree and a master’s degree in the field of electrical engineering from a foreign university before immigrating to the United States to pursue a doctorate. (Tr. 71) He successfully obtained the doctorate in 1993. (Tr. 71) He became a naturalized U.S. citizen in 1997. (GE 2 at 1)

Applicant is a research physicist and a university professor. He is highly respected in his field. According to his current supervisor, he is an outstanding scientist. (Tr. 35) His previous supervisor characterized him as a tremendously talented, yet humble individual who puts the accomplishments of his subordinates ahead of his own. (Tr. 26) According to a friend and former fellow Ph.D candidate whom Applicant met in 1992, Applicant is “very dependable, [and] very reliable.” (Tr. 45) In 2017, Applicant’s university granted him the “Excellence in Teaching Award” for his “Excellence in Instruction and Dedication.” (AE J)

Applicant’s wife immigrated to the United States from Jordan with her family in 1976 when she was three years old. (Tr. 72) She became a naturalized U.S. citizen in 1984. (AE A) Applicant’s daughter is a natural-born U.S. citizen.

Applicant’s father is deceased. Applicant’s mother, a homemaker, is a Jordanian citizen and resident of the West Bank. Applicant travels to the West Bank approximately every other year to visit her, staying three to four weeks per visit. (Tr. 81) He also financially supports her by sending $1,200 monthly. (Tr. 87) He feels a moral obligation to support his mother. (Tr. 86)

Applicant has three brothers (B1, B2, B3) and three sisters (S1, S2, S3) who are Jordanian citizens and residents of the West Bank. B1 is a teacher. (GE 2 at 4) His wife, Applicant’s sister-in-law, is the principal at the school where he teachers.

B2 is a plumber. (Tr. 94) His marital status is unknown from the record. B3 is a sanitation technician, and his wife is a homemaker. (Tr. 94) S1 is a homemaker, married to a doctor. They are U.S. citizens who lived in the United States before returning to the West Bank to care for S1’s elderly parents in-law. (Tr. 94) S2 is a teacher. Her husband is an electrical engineer. (Tr. 96-97) S2 has dual U.S. citizenship and has spent part of her life living in the United States. S3 is a homemaker. Her husband is a shopkeeper. (Tr. 98).

Applicant speaks with his siblings twice per year on religious holidays. (Tr. 89) They exchange monetary gifts on holidays. Applicant sees them on his trips to the West Bank when he visits his mother.

Applicant owns no property in the West Bank. He has $13,000 deposited in a checking account, and $1.1 million deposited in two saving accounts in the United States. (AE N)

Applicant is a philanthropist who gives thousands of dollars annually to charities and other non-profit entities. (AE F – AE H) He is a respected elder at his place of worship who actively participates in interfaith organizations dedicated to promoting religious tolerance. The spiritual leader of his place of worship testified that he would trust Applicant with his wife, his children, and his life. (Tr. 63)

Administrative Notice

The West Bank refers to the region on the west bank of the Jordan River that was occupied and administered by Jordan after 1948 before coming under Israeli control after the Six-Day War in 1967. (HE II at 1) Control of the West Bank is divided, per a 1994 agreement, between Israel and the Palestinian Authority. (HE II at 1) In 2007, Hamas, a U.S.-designated terror organization, violently took over the Gaza Strip, part of the territory of the West Bank that the Palestinian Authority had governed.

The U.S. State Department advises against travel to the West Bank because of the risk of terrorism, civil unrest, and the potential for armed conflict. (Item III at 1) Multiple terrorist groups are present in the West Bank. (HE IV at 2) The Palestinian authority continues to provide “martyr payments” to the families of Palestinian individuals killed carrying out terrorist acts. (HE V at 3)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant

applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

ANALYSIS

Guideline B, Foreign Influence

Under this guideline, “foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance.” (AG ¶ 6) The following disqualifying conditions are potentially applicable under AG ¶ 7:

(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information or technology.

The West Bank has a significant problem with terrorism. The potential for civil unrest is pervasive. Consequently, Applicant’s contacts with relatives who live there trigger the application of AG ¶¶ 7(a) and 7(b).

Applicant has been living in the United States for more than 25 years. In that time, he has earned a Ph.D, started a family, and saved more than $1 million. He is a pillar of his community, and a highly-respected scientist. Given the financial, familial, community, and professional roots that he has cultivated during the 27 years he has

lived in the United States, I conclude that he would resolve any conflict, generated by his relatives residing in the West Bank, in the U.S. interest. AG ¶ 8(b), “there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest,” applies. Applicant has mitigated the foreign influence security concern.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

In reaching this decision, I was particularly cognizant of Applicant’s stellar employment and character references.

Formal Finding

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B:

FOR APPLICANT

Subparagraphs 1.a – 1.d:

For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the security interests of the United States to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

__________________________ Marc Curry Administrative Judge