The answer is “Yes”, and it happens on a regular basis.
Quite frankly, we have received more calls about NEXUS confiscations at Toronto Pearson Airport Pre-Clearance recently – and, it makes one wonder if a US CBP policy directive has changed. The issues that arise at U.S. Pre-Clearance at Toronto Pearson Airport are different issues than the issues we see at Canadian border crossings.
In 2014/2015, the NEXUS issues we saw most frequently at U.S. Pre-Clearance involved muffins, cookies and bananas in individual’s carry-on luggage. We would see an occasional Cuban cigar.
However, this year, we are seeing more decisions by US CBP at Toronto Pearson Pre-Clearance to confiscate NEXUS Memberships of Canadian travelers for (1) immigration matters and (2) suggestions that answers were untruthful.
For example, a client had a valid visa and was legally working in the United States. She was flying to the United States and arrived early to apply for a renewal of her Visa ahead of the expiration date. US CBP at Toronto Pearson Airport refused to process the new Visa application and cancelled the NEXUS Membership.
Another client was sent to secondary clearance and was asked the usual questions. When the US CBP officer did not like the answers provided, he confiscated the person’s NEXUS Membership on the basis that answers were untruthful.
Another client (an entire family) had their NEXUS Memberships cancelled because the nanny did not have a NEXUS Membership. The nanny helped push the children’s strollers to the US primary desk and was asked for her identification. She was not permitted to get into the line up and the family was informed that it was too late as the “nanny had crossed the line”.
It is important to look at 8 CFR §235.12, which are the US rules relating to the Global Entry (NEXUS ) Program. 8 CFR §235.12(j)(2) provides for the suspension of a Global Entry participant as follows:
“(2) A Global Entry participant may be suspended or removed from the program for any of the following reasons:
- (i) CBP, at its sole discretion, determines that the participant has engaged in any disqualifying activities under the Global Entry Program as outlined in § 235.12(b)(2);
- (ii) CBP, at its sole discretion, determines that the participant provided false information in the application and/or during the application process;
- (iii) CBP, at its sole discretion, determines that the participant failed to follow the terms, conditions and requirements of the program;
- (iv) CBP, at its sole discretion, determines that the participant has been arrested or convicted of a crime or other-wise no longer meets the program eligibility criteria; or
- (v) CBP, at its sole discretion, determines that such action is otherwise.”
In short, the US CBP officers have wide latitude to cancel NEXUS privileges.
There is also an interesting article about the use of discretion by US CBP officers on the West Coast. Jeff Nagel of the Abbottsford News reports that one US CBP officer has boasted that he has denied more Canadians entry into the Untied States than any other staffer.
The issue is not that bad people get their NEXUS passes confiscated. The issue is that some good people get their NEXUS passes confiscated. Canadians use their NEXUS memberships to expedite the customs clearance process. There is a business cost to the confiscation of a NEXUS pass. For that reason, discretion should be used properly.
If US CBP confiscates your NEXUS membership, redress may be made to the US CBP Ombudsman. Currently, it takes 7-8 months to hear back from the US CBP Ombudsman after a letter is filed.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at firstname.lastname@example.org. Alternatively, visit www.lexsage.com.