Written with Benjamin Lau – Published February 5, 2020

New York residents may no longer be able to enroll (or re-enroll) in Global Entry and other Trusted Traveler Programs, according to recent action by the Department of Homeland Security (“DHS”).

On February 5, 2020, Acting Homeland Security Secretary Chad Wolf announced DHS was suspending enrollment in Global Entry, NEXUS, SENTRI, and FAST for all New York state residents.  This announcement does not affect residents of other U.S. states and jurisdictions who may continue to use, enroll or re-enroll in these programs.  No information was provided regarding how long the suspension would be in effect, although the way the DHS letter to New York state officials was worded makes it seems further discussions between DHS and those officials may be possible.  The stated reason for the restriction is New York’s denial of access to DHS of its Department of Motor Vehicle data for immigration enforcement and criminal history/involvement purposes.  An open question remains as to whether grounds exist to bring court action or some other form of legal challenge given DHS invoking law enforcement considerations as the basis for its actions.

Current members of these programs resident in New York may continue to use them until their current status expires.  Also, those individuals with valid Global Entry, NEXUS, SENTRI, or FAST status may continue to use the service when traveling to the United States.

Global Entry membership is valid for five (5) years and expires on the member’s birthday during the fifth year. Global Entry members may determine their program expiration date by logging into their Trusted Traveler Programs accounts at https://ttp.cbp.dhs.gov/.

TSA Pre-Check was not included on the list of suspended programs. Given that background checks for bonded warehouses and C-TPAT status are conducted by federal law enforcement agencies, it is not yet clear whether any trusted trader or other supply chain security programs will also be affected. It seems reasonable to expect that similar action may be taken regarding residents of other states that enact similar laws which limit DHS access to what is views as local law enforcement data. What will have an immediate impact is the fact that access to used vehicle ownership data will no longer be provided, so the export of vehicles registered in New York or exported out of any New York port is likely to quickly become quite difficult. The DHS letter refers to the vehicle export process as being “delay[ed]” but one can quickly see how that might well be a significant understatement!

Addendum – And almost the next day, litigation was threatened, see https://www.nytimes.com/2020/02/07/nyregion/global-entry-lawsuit-ny.html. One thought as this issue plays itself out – is this situation another illustration of the every widening gap between the current administration and some state leadership or is this situation part of the on-going disagreement between the law enforcement at all levels and privacy advocates? While the New York situation is couched in the context of sanctuary laws, the law enforcement effort seeking to require Apple to unlock iPhones belonging to criminals keeps coming up. Is this a narrow or broade issue? Only time will tell?