My Nexus Card got Seized!
What are my chances of winning a Nexus Appeal? And when can I reapply?
These are the two most common questions that we get from traveler clients calling or writing us after having their Nexus Cards seized by either the Canada Border Services Agency (“CBSA”) or U.S. Customs and Border Protection (“CBP”) – usually for minor infractions, under the apparently “zero-tolerance” approach that both agencies seem to be applying these days.
The second question usually comes after clients confirm that they can appeal, but that the prospects of winning are not completely certain and legal costs will have to be incurred before the appeal can be properly made.
While we reviewed the basics of the administrative appeals required earlier (i.e., one for Nexus Revocation, and a related appeal for the alleged underlying Customs infraction), here we will look at these two more fundamental questions.
What are My Chances of Winning?
No one can accurately predict the probability of success once an application to overturn a Nexus or Customs Infraction has been properly crafted and filed.
However, the probability of success if nothing has been done (or if something has been done poorly) can be accurately predicted – it’s zero!
Good narratives will make the difference, and travelers will need to show that they have acted reasonably, or that something has been misinterpreted by CBSA – and that is where the work starts.
If I Don’t Appeal, When Can I Reapply?
Generally, one can reapply for a NEXUS Card after six (6) years from the date of revocation – although there is never any guarantee that CBSA/CBP accepts the renewal application.
Significantly, there is also some evidence that a well-presented Nexus Revocation appeal, filed on time and with cogent reasons for the infraction, may lead CBSA to allow a renewal application within twelve (12) to eighteen (18) from the date of the original revocation (we have seen that in practice).
This may weigh in favour of appealing these matters if any reasonable basis exists for doing so.
A “do it yourself” approach may not be the wisest choice, given the concern that something said improperly may serve to undermine the case being presented to the CBSA Recourse Directorate, and result in a rejection of the appeal – and leave one with the six (6) year waiting period for re-application.
Appeal Requests
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 relevant Regulations provides 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 ‘Requests for Review’ will be accepted up to 90 days after the suspension or cancellation of a NEXUS card.
This appeal process is available to all persons who receive a decision from CBSA.
Commentary
With CBSA and CBP maintaining their zero-tolerance policy, NEXUS Card issues are becoming more prevalent. Travelers who have had their NEXUS Cards seized, confiscated, or revoked should seek legal advice to try and challenge those decisions!
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