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NEXUS Card Cancelled by CBSA / CBP? Challenge that!

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NEXUS is a bi-national, Canada-US privilege program for pre-approved, low-risk travellers, allowing them to enter either country’s ports of entry swiftly.

Recently, however, thousands of NEXUS cards from Canadian and US citizens, have been confiscated either by the Canada Border Services Agency (“CBSA”) or U.S. Customs and Border Protection (“CBP”) – often for minor infractions.

Generally speaking, this administrative action can and should be challenged!

Background

Around 1.4 million of the 1.7 million NEXUS card holders are Canadians. The CBSA’s data indicates that around 77% of all revocations are by US Officials – which is likely because the US has a zero-tolerance policy (e.g., meaning that even one undeclared orange could result in card confiscation and revocation)! When a Nexus card is revoked by US CBP, the appeal process is generally non-transparent.

When a NEXUS card is revoked by CBSA, or a Canadian citizen has a NEXUS card revoked by US CBP, Canadian’s generally have a right of recourse to appeal the revocation – albeit under very tight timelines.  

Recent Court Decision

The recent Federal Court decision in Nassar v. Canada stands for the proposition that the “good character” requirement for obtaining or keeping NEXUS cards (under the Presentation of Persons (2003) Regulations) (the “Regulations”) cannot be relied upon to revoke NEXUS cards when the underlying concerns are due to a traveller’s innocent mistake (in this case, Mr. Nassar omitted to report funds in excess of the $10,000 in his possession as required under subsection 12(1) Proceeds of Crime (Money Laundering) and Terrorist Financing Act. (He apparently had an extra CAD $2,100, in the form of Euros, that he had forgotten in his bag from a previous trip).

The Federal Court also ruled that when revoking NEXUS cards, the CBSA is required to act with transparency, and to provide intelligible justification for its actions, and loss of confidence of “good character”.

Appeal Requests

Thankfully, a CBSA decision to confiscate and/or revoke a NEXUS Card can be appealed by Canadian or US citizens and permanent residents!

Once CBSA’s decision is received, an aggrieved person can request a Ministerial review of the CBSA’s enforcement action (also known as a ‘Request for Review’). Section 23 of the Regulations provides that there is a 30-day time limit to submit a ‘Request for Review’ to the Minister in respect of the NEXUS card suspension/cancellation. However, CBSA has taken the administrative position that appeals will be accepted up to 90 days after the suspension or cancellation of a NEXUS card.

The decision becomes effective either (1) immediately when notified in person or (2) 15 days after the notice is mailed. This appeal process is available to all persons who receive a decision from CBSA.

If the NEXUS card is revoked by US CBP, the appeal processes are different. Unlike Canada, US does not have Regulations dictating the procedure for review, or a robust and clear system to reach the CBP. Those in the know, have called for the Canadian Government to get involved and urge the US government to improve the appealing process for Canadians! It should be noted that, the Canadian Federal Court has no jurisdiction over the enforcement actions of US Authorities.  

Commentary

With US maintaining its zero-tolerance policy, NEXUS Card issues are becoming more prevalent. Travellers who have had their NEXUS Cards seized, confiscated, or revoked should seek legal advice to try and challenge those processes!

Do you require assistance in this area?  If so, please click here.

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