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ISCR Case 06-23644.h1 — CASE

ISCR Case 06-23644.h1granted

Case Headnote

ISCR Case No. 06-23644.h1

grantedAug 28, 2007· Hon. Richard A. Cefola· hearing

Summary

A 52-year-old defense contractor was granted a security clearance despite initial concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The Statement of Reasons noted that the Applicant's 80-year-old retired parents, an irrigation engineer and a housekeeper, reside in Israel, as does his sister, an X-ray technician in a private hospital. Additionally, the Applicant acquired an Israeli passport in 1998, after becoming a U.S. citizen, and used it for seven trips to Israel to visit his parents.

Disqualifying conditions C1, B1, and B2 were raised. However, the Applicant surrendered his Israeli passport, demonstrating a commitment to U.S. interests. The judge found that the Applicant was not subject to coercion from his Israeli relatives.

Mitigating conditions C5, B1, and B2 were applied. The Applicant has lived in the U.S. for over 20 years, becoming a citizen in 1996. All of his immediate family members are U.S. citizens, and his financial interests are entirely within the U.S. These longstanding ties to the U.S. mitigated concerns regarding foreign influence and preference, leading to the clearance being granted.

Why the Applicant Prevailed

The Applicant surrendered his Israeli passport, demonstrating a commitment to U.S. interests.
All of the Applicant's immediate family members are U.S. citizens, reducing foreign influence concerns.
The Applicant's financial interests are entirely in the U.S., indicating loyalty to the country.

Conditions Referenced

Disqualifying

C1raisedPossession of a Current Foreign Passport
B1raisedContact with Foreign Relatives Creates a Heightened Risk of Foreign Exploitation
B2raisedPotential Conflict of Interest Due to Foreign Relatives

Mitigating

C5appliedSurrender of Foreign Passport
B1appliedNature of Relationships with Foreign Relatives Unlikely to Create Conflict of Interest
B2appliedLongstanding Relationships and Loyalties in the U.S.

Key Rule Quoted

“An individual who has demonstrated a Foreign Preference or who is subject to Foreign Influence, may be prone to provide information or make decisions that are harmful to the interests of the United States.”

Procedural Posture

SOR issuedJan 16, 2007
Answer filedFeb 6, 2007
Hearing heldMay 8, 2007Applicant testified and submitted evidence.
Decision dateAug 28, 2007

Cite For

Mitigation of Foreign Influence Due to Family Ties Under Guideline B
Surrender of Foreign Passport as a Mitigating Factor Under Guideline C
Longstanding U.S. Residency and Citizenship as Mitigating Factors for Security Clearance

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: Decision on RecordDecided: granted

The judge found that the applicant's foreign influence concerns were mitigated by his strong ties to the United States, including his American wife and children, and his long-term residency and citizenship. The applicant's relationships with his Israeli parents and sister were deemed unlikely to create a conflict of interest, leading to a favorable decision for the applicant regarding foreign influence.

U.S. ties the decision noted: U.S. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	The Applicant’s 80 year old parents are retired and live in Israel (TR at page 23 lines 12~24, at page 27 line 8 to page 28 line 15, at page 30 lines 8~19 and GX 1 at pages 14~16). His father is a retired “Irrigation Engineer,” and his mother is a “housekeeper” (Id).	For Applicant	Parent in Foreign Country Immediate Family	Israel	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Credited Deep U.S. Ties
2.b	The Applicant’s sister works in a private hospital as an “X-Ray Technician” (TR at page 31 line 13 to page 32 line 5). The Applicant is not subject to coercion vis-a-vis any of his Israeli relatives (TR at page 29 line 5 to page 30 line 7, and at page 32 lines 16~24).	For Applicant	Sibling in Foreign Country Immediate Family	Israel	Admitted	—	(a) relationships such that a conflict between foreign and U.S. interests is unlikely	Credited Deep U.S. Ties

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

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The Applicant surrendered his Israeli passport and has established strong ties to the U.S., including a long-term residency and family connections. The judge found that the Applicant's relationships and loyalties in the U.S. mitigate any concerns regarding foreign preference, leading to a favorable decision.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	The Applicant has surrendered his Israeli passport, which he acquired in 1998, after he was naturalized.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	(e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Credited Surrender of Foreign Passport
1.b	The Applicant traveled to Israel seven times, using this Israeli passport, to visit his parents.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	(e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern	Credited Surrender of Foreign Passport
1.c	specific text not stated in this decision	For Applicant	Unspecified Foreign Preference	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline C). 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

SYNOPSIS

KEYWORD: Foreign Preference; Foreign Influence

DIGEST: The Applicant has surrendered his Israeli passport. His wife and native born children are all Americans. He has lived in the U.S. for more than 20 years, and has been a citizen for more than 10 of those years. All of the Applicant’s net worth, nearly $1,000,000, is in the U.S. The Applicant’s 80 year old parents are retired and live in Israel. His sister works in a private hospital. As the Applicant has “longstanding relationships and loyalties in the U.S.,” it is unlikely that he “will be placed in a position of having to choose between the interests of . . . [his foreign relatives] . . . and the interests of the U.S.” Mitigation is shown. Clearance is granted.

CASENO: 06-23644.h1

DATE: 08/28/2007

DATE: August 28, 2007

) ) In Re: ) ) ISCR Case No. 06-23644 ----------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

APPEARANCES

SYNOPSIS

The Applicant has surrendered his Israeli passport. His wife and native born children are all Americans. He has lived in the U.S. for more than 20 years, and has been a citizen for more than 10 of those years. All of the Applicant’s net worth, nearly $1,000,000, is in the U.S. The Applicant’s 80 year old parents are retired and live in Israel. His sister works in a private hospital. As the Applicant has “longstanding relationships and loyalties in the U.S.,” it is unlikely that he “will be placed in a position of having to choose between the interests of . . . [his foreign relatives] . . . and the interests of the U.S.” Mitigation is shown. Clearance is granted.

STATEMENT OF CASE

On January 16 , 2007, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed the reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

Applicant filed an Answer to the SOR on or about February 6, 2007.

The case was received by the undersigned on April 10, 2007. A notice of hearing was issued on April 12, 2007, and the case was heard on May 8, 2007. The Government submitted documentary evidence. Testimony was taken from the Applicant, who also submitted documentary evidence. The transcript (TR) was received on May 17, 2007. The issues raised here are whether the Applicant's perceived Foreign Preference and Foreign Influence militate against the granting of a security clearance. [The Applicant admits the underlying factual basis for all of the allegations.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the documents and the live testimony. The Applicant is 52 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional Findings of Fact.

Guideline C - Foreign Preference

The Applicant came to the U.S. from Israel in 1986, over 20 years ago, to find a better life for his family (TR at page 15 line 2 to page 16 line 14). He became a U.S. citizen in 1996 (TR at page 19 lines 19–25). His wife is also naturalized, but his three children are native born Americans (TR at page 17 line 14 to page 19 line 1). All of the Applicant’s net worth, nearly $1,000,000, is in the U.S. (TR at page 21 line 24 to page 23 line 1).

Dual nationality is not alleged in the Statement of Reasons. 1.a. and 1.b. The Applicant has surrendered his Israeli passport, which he acquired in 1998, after he was naturalized (TR at page 25 line 6 to page 26 line 23, at page 33 line 22 to page 34 line 18, Government Exhibit (GX) 3, and Applicant’s Exhibit A). He traveled to Israel seven times, using this Israeli passport, to visit his parents (TR at page 20 lines 1–20, and GX 3). His last visit was in 2005 (Id). Guideline B - Foreign influence

2.a. The Applicant’s 80 year old parents are retired and live in Israel (TR at page 23 lines 12–24, at page 27 line 8 to page 28 line 15, at page 30 lines 8–19 and GX 1 at pages 14–16). His father is a retired “Irrigation Engineer,” and his mother is a “housekeeper” (Id).

2.b. The Applicant’s sister works in a private hospital as an “X-Ray Technician” (TR at page 31 line 13 to page 32 line 5). The Applicant is not subject to coercion vis-a-vis any of his Israeli relatives (TR at page 29 line 5 to page 30 line 7, and at page 32 lines 16–24).

As the Applicant has Israeli relatives, I must also consider the country of Israel. Israel is a parliamentary democracy who’s prime minister heads the government and exercises executive power. Israel has a diversified, technologically advanced economy that is growing at about 5.2% per year, and the U.S. is Israel’s largest trading partner. Almost half of Israel’s exports are high tech and its major industrial sectors include high-technology electrical and biomedical equipment. The National Counterintelligence Center’s 2000 Report to Congress on Foreign Economic Collection and Industrial Espionage lists Israel as one of the active collectors of proprietary information. The most recent Report, released in 2006, states that the major collectors remain active. Israeli military officers have been implicated in this type of technology collection in the U.S. (See the Government’s Request for Administrative Notice).

POLICIES

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern. Furthermore, as set forth in the Directive, each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate:

a. Nature, extent, and seriousness of the conduct, and surrounding circumstances.

b. Frequency and recency of the conduct.

c. Age and maturity of the applicant.

d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved.

e. Absence or presence of rehabilitation.

f. Probability that circumstances or conduct will continue or recur in the future.”

The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence that is speculative or conjectural in nature.

The Government must make out a case under Guideline B (Foreign Influence) and Guideline C (Foreign Preference), which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

An individual who has demonstrated a Foreign Preference or who is subject to Foreign Influence, may be prone to provide information or make decisions that are harmful to the interests of the United States. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places.

CONCLUSION

The Applicant, until recently maintained an Israeli passport. The first disqualifying condition under Foreign Preference is therefore applicable as there was an "exercise of any right . . . of foreign citizenship after becoming a U.S. citizen . . . . This includes but is not limited to: (1) possession of a current foreign passport; . . ." This is countered, however, by the fifth mitigating condition. “[T]he passport has been . . . surrendered to the cognizant security authority . . .”

The Applicant's parents, and sisters are citizens of and reside in Israel. The first and second disqualifying conditions are arguably applicable as this contact “creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion," and creates “a potential conflict of interests between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person . . . by providing that information.” Under the facts of this particular case, however, these are clearly countered by the first and second mitigating conditions. The nature of the Applicant’s relationship with his Israeli relatives is “such that it is unlikely the individual will be placed in a position of having to choose between the interests of . . . [his family] and the interests of the U.S.” Also, the Applicant “has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest.”

Furthermore, I am not limited to the mitigating conditions, delineated in the Directive, in deciding if an Applicant has demonstrated extenuation or mitigation. The totality of the Applicant’s conduct and circumstances, as set forth at length above, clearly warrants a favorable recommendation under the “whole person concept.” Mitigation is shown. Guidelines B and C are found for the Applicant.

Considering all the evidence, the Applicant has rebutted the Government's case regarding his alleged Foreign Preference and Foreign Influence. The Applicant has thus met the mitigating conditions of Guidelines B and C, and of Section E.2.2. of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guidelines B and C.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Foreign Preference FOR THE APPLICANT

a. For the Applicant. b. For the Applicant. c. For the Applicant.

Paragraph 2: Foreign Influence FOR THE APPLICANT

a. For the Applicant. b. For the Applicant.

Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant.

Richard A. Cefola Administrative Judge

FOOTNOTES

FOR GOVERNMENT Jeff A. Nagel, Esquire, Department Counsel

FOR APPLICANT Pro Se