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ISCR Case 06-07293.a1 — CASE

ISCR Case 06-07293.a1unknown

Case Headnote

ISCR Case No. 06-07293.a1

Apr 16, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case involved an applicant, represented by counsel, facing concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The initial decision raised a disqualifying condition under Adjudicative Guideline (AG) ¶ 6(a), while also applying a mitigating condition under AG ¶ 8(a).

However, the Board identified discrepancies in the Judge's conclusions regarding the applicant's foreign family ties. Specifically, the Board found that the Judge's analysis did not adequately clarify the implications of these ties on the applicant's security clearance eligibility.

As a result, the case was remanded for a new decision. The Board's directive was to ensure a clearer determination of how the applicant's foreign family connections impact the security clearance, with no final outcome yet reached.

Conditions Referenced

Disqualifying

AG ¶ 6(a)raisedForeign InfluenceThe Judge found against the applicant under Guideline B due to potential conflicts of interest from foreign family ties.

Mitigating

AG ¶ 8(a)appliedForeign PreferenceThe Judge found in favor of the applicant under Guideline C, acknowledging the renunciation of foreign citizenship.

Procedural Posture

SOR issuedApr 12, 2007
Answer filed—
Hearing heldNov 27, 2007
Decision dateApr 16, 2008Board remanded for new decision.

Cite For

Discrepancies in Judge's Conclusions Regarding Foreign Influence and Preference
Remand for Clarification of Foreign Family Ties Impact on Security Clearance
Importance of Accurate Interpretation of Judge's Findings in Security Clearance Cases.

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

Remanded

The appeal involved a security clearance denial based on concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The Board identified discrepancies in the Judge's findings and remanded the case for a new decision to properly address the relevant circumstances under Guideline B.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene Lokey Anderson — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline C

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by board sua sponteError sustained
The Judge's decision contained discrepancies between the text and the Formal Findings regarding Guideline B and Guideline C.

Why the Board ruled this way

The Board found that both parties misread the Judge's decision regarding Guideline B and C, leading to a remand for clarification and proper analysis.

No rational connection between facts and conclusion

On remand, the judge must

The Judge must issue a new decision addressing all relevant circumstances relating to the Guideline B allegations, including the current significance of Applicant’s foreign family ties, Applicant’s ties to the U.S., the circumstances under which Applicant has previously held a security clearance, the evidence as to Applicant’s character, and the identity of the country in accordance with Directive.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

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 Board concludes that both parties misread the Judge’s decision as finding against Applicant under Guideline C and in favor of Applicant under Guideline B, due in part to the discrepancy between the conclusions in the text of the Judge’s decision and the Formal Findings and in part to the fact that the Judge relied in her Guideline B analysis on Applicant’s negative responses to a hypothetical question that had been alleged under Guideline C. To be fair to the parties, we remand the case to the Judge for the issuance of a new decision which should address all the relevant circumstances relating to the Guideline B. Adverse decision remanded. CASENO: 06-07293.a1 DATE: 04/16/2008 DATE: April 16, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-07293

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Candace L. Le’i, Esq., Department Counsel FOR APPLICANT Sheldon I. Cohen, Esq. Decision at 9. Id at 7-8. Id at 8. As a general rule, an applicant’s stated intention of what he might do in the future under a hypothetical set of circumstances is entitled to limited weight unless there is record evidence that the applicant has acted in a similar manner in the past under comparable circumstances. See, e.g., ISCR Case No. 06-24575 at 4 (App. Bd. Nov. 9, 2007). The likelihood or not of the hypothetical ever occurring may further affect the weight to be assigned. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 12, 2007, DOHA issued a statement of reasons advising Applicant of the basis 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 November 27, 2007, after the hearing, Administrative Judge Darlene Lokey Anderson denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. There was no cross- appeal. For the reasons set forth below, the Board remands the case to the Judge for the issuance of a new decision. In the Formal Findings section of her decision, the Judge found in favor of Applicant under Guideline B and SOR paragraphs 1(a) and 1(b), and against Applicant under Guideline C and SOR paragraphs 2(a) through 2(f). However, a close reading of the text of the Judge’s decision indicates just the opposite—that she actually found in favor of Applicant under Guideline C and against Applicant under Guideline B. In the Conclusions section of her decision, the Judge listed the applicable Guideline C Disqualifying Conditions. She then discussed the security implications of Applicant’s dual citizenship with Israel, his possession and use of an Israeli passport to visit his family members in Israel, and his subsequent renunciation of his Israeli citizenship and the surrender of his Israeli passport. Afterwards the Judge stated: “Under the circumstances of this case, I find for the Applicant under Guideline C (Foreign Preference).” The Judge then listed the applicable Guideline B Disqualifying Conditions and discussed why Applicant’s connection to his two family members in Israel created a potential conflict of interest between his obligation to protect sensitive information or technology and his desire to help those individuals or their country. Following that analysis, the Judge then stated: “Accordingly, Guideline B, Foreign Influence is found against Applicant.” As a threshold matter, the Board concludes that both parties misread the Judge’s decision as finding against Applicant under Guideline C and in favor of Applicant under Guideline B. This was apparently due in part to the discrepancy between the conclusions in the text of the Judge’s decision and the Formal Findings. It was also apparently due in part to the fact that the Judge relied extensively on Applicant’s negative responses to a hypothetical question as to his willing to bear In his brief, Applicant’s counsel asserts that DOHA engages in the discriminatory practice of only questioning applicants with family members in Israel as to whether they would bear arms for the U.S. against that country. Applicant’s assertion in that regard without merit. Applicants with family members in other countries are also asked that question. See, e.g., ISCR Case No. 02-02172 (A. J. May 16, 2003) (South Korea); ISCR Case No. 01-02204 (A. J. Sep. 4, 2001) (Switzerland); ISCR Case No. 03-21111 (A. J. Bd. Jun. 7, 2006) (Afghanistan); ISCR Case No. 01-10189 (A. J. Dec. 31, 2001 (United Kingdom); ISCR Case No. 00-0127 (A. J. Nov. 7, 2000) (Ireland); ISCR Case No. 03-04132 (A. J. Mar. 29, 2004) (People’s Republic of China); ISCR Case No. 02-01987 (A. J. Nov. 12, 2003) (Cuba); ISCR Case No. 01-26993 (A. J. Aug. 6, 2003) (Iran); ISCR Case No. 01-16419 (A. J. Oct. 10, 2002) (Egypt); ISCR Case No. 03- 26412 (A. J. Feb. 22, 2006). This was evidence which the Judge could properly consider along with the other evidence of record in reaching her decision. As noted above, the Board concluded that Guideline C had been resolved in favor of Applicant. Therefore, that Guideline is no longer at issue. In conducting her analysis, the Judge should be cognizant of the Board’s decision in ISCR Case No. 03-21434 at 3-5 (App. Bd. Feb. 20, 2007). arms for the U.S. against Israel in her analysis of the security concerns presented by Applicant’s foreign family ties under Guideline B. Applicant’s responses in that regard had actually been asserted as factual allegations under Guideline C. The Board recognizes the presence of some ambiguity in this matter. Therefore, in order to be fair to the parties, the most expeditious resolution is to remand the case to the Judge for the issuance of a new decision. In her new decision, the Judge’s analysis should address all the relevant circumstances relating to the Guideline B allegations, including the current significance of Applicant’s foreign family ties, Applicant’s ties to the U.S., the circumstances under which Applicant has previously held a security clearance, the evidence as to Applicant’s character, and the identity of the country in accordance with Directive.8

ORDER

The Judge’s adverse security clearance decision is REMANDED. 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