Roberts v. DHS – A pro se challenge to the Global Entry Program

Below is a 2011 DC federal case wherein a plaintiff unsuccessfully tried to challenge his Global Entry membership denial. It provides a good overview of the legal frameworks potentially available for challenge, and their limits. It also is a good indicator of the large amount of discretion given to DHS/CBP in administration of the Global Entry program. You can read it in the embedded file below or view it directly here: Global Entry Unsuccessful District Court Challenge.

 

You can find more information about the Global Entry program in the comprehensive article we have written.

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Global Entry Program, and how to appeal Denials and Revocations

Today we are going to discuss U.S. Customs and Border Protection’s (CBP’s) Global Entry program. We will cover the advantages of the program, its cost, and how you can apply. We will also address potential avenues of redress  for travelers that have their membership in Global Entry program denied or revoked, including the various avenues individuals can take related to Global Entry revocation appeals and application-denial appeals.

 

What is Global Entry?

Global Entry (wiki) is a program administered by U.S. Customs and Border Protection that allows for low-risk travelers to use electronic kiosks and avoid long wait associated with clearing customs when traveling internationally. Global Entry was created by Congress and delegated to CBP for administration. The enacting statute was the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The specific section of law that led to the establishment of the Global Entry program as it exists now is 8 U.S.C. § 1365b(k). Relevant to our discussion below regarding appeals is the fact that Congress gave DHS/CBP a great deal of discretion in the administration of this trusted traveler program.

Example of Global Entry Kiosks:

Global Entry Kiosk

U.S. Customs and Border Protection has made a big push to increase enrollment in the Global Entry Program. The program is not only beneficial to travelers but also benefits U.S. Customs and Border Protection by allowing them to pre-screen trusted travelers and focus their resources on screening unknown individuals that could present a more serious threat to national security. Below is a video produced by CBP that explains the benefits of the program in more detail.

 

What are the benefits  of Global Entry?

Global Entry is particularly valuable to regular business travelers and airline employees like pilots and other crew who travel often. Instead of waiting in long inspection lines you can skip the line and “self-process” using an electronic Global Entry kiosk. Depending on the lines and traveler flow at each airport, this can save you hours of time each time you travel. Accordingly, if you travel often this could save tens of hours, if not days, of waiting time. Additionally, some partner countries give you expedited processing if you are a member of Global Entry.

http://www.cbp.gov/travel/trusted-traveler-programs/global-entry
Global Entry Benefits, credit CBP

Here are the list of benefits directly from CBP’s website:

  • No processing lines
  • No paperwork
  • Access to expedited entry benefits in other countries
  • Available at major U.S. airports
  • Reduced wait times
  • TSA Pre✓® Eligibility

Along with Global Entry’s core benefits (skipping the regular CBP inspection lines) the other most attractive benefit is that it qualifies you for TSA precheck which will help you breeze through domestic security lines at US airports. Accordingly, if you engage in regularly international travel it makes sense to apply for Global Entry not solely TSA Pre-Check, since Global Entry qualifies you for both programs if your application is approved.

 

How do I join Global Entry?

Global Entry is a voluntary program, no one is required to join. If you are interested in joining you have to pay a fee and go through an interview and screening process with a local U.S. Customs and Border Protection official. CBP has created an online portal called GOES “Global Online Enrollment System” (the government sure lacks creativity with its acronyms).

To apply, you create an account with GOES, pay a $100 application fee and then if your application is conditionally approved, you schedule an interview with a local CBP Officer. At this meeting you bring your documents and answer the Officer’s questions, you can also expect to be fingerprinted. If all goes well you should get a positive notification from CBP within a few months and you will be able to start using your Global Entry card.

 

What is U.S. Customs and Border Protection?

U.S. Customs and Border Protection (CBP) is a federal agency within the Department of Homeland Security that is charged with securing the nation’s borders. CBP inspects all merchandise and individuals that enter the country from abroad. These officer’s work at all the ports of entry in the United States ensuring that commerce and individuals can flow freely while still ensuring that America is protected from any security threats. More specifically, CBP Officer’s are the ones stamping passports in airports and inspecting cargo at seaports. The U.S. Border Patrol is also a competent of CBP, with its largest presence at the United States’ southern-border with Mexico.

 

What rules or regulations govern Global Entry membership?

CBP has a great deal of discretion in the administration of the Global Entry program, however, there are some regulations that provide guidance on its administration and the program’s requirements. The core regulations related to Global Entry can be found in the Department of Homeland Security’s regulations at 8 CFR § 235.12.

The regulations define the program as follows:

The Global Entry program is a voluntary international trusted traveler program consisting of an integrated passenger processing system that expedites the movement of low-risk air travelers into the United States by providing an alternate inspection process for pre-approved, pre-screened travelers. In order to participate, a person must meet the eligibility requirements specified in this section, apply in advance, undergo pre-screening by CBP, and be accepted into the program. The Global Entry program allows participants expedited entry into the United States at selected airports identified by CBP at www.globalentry.gov. Participants will be processed through the use of CBP-approved technology that will include the use of biometrics to validate identity and to perform enforcement queries.

8 CFR § 235.12(a)(emphasis added).

The regulations make clear that CBP has a great deal of leeway in determining who can and cannot join the program:

An individual is ineligible to participate in Global Entry if CBP, at its sole discretion, determines that the individual presents a potential risk for terrorism, criminality (such as smuggling), or is otherwise not a low-risk traveler. This risk determination will be based in part upon an applicant’s ability to demonstrate past compliance with laws, regulations, and policies.

8 CFR § 235.12(b)(2) (emphasis added).

 

Are Non-U.S. Citizens eligible for Global Entry membership?

Yes, Global Entry is eligible to lawful permanent residents of the United States, UK citizens, Dutch citizens, South Korean citizens, Panamanian citizens and Mexican nationals. Canadian citizens and residents may enjoy Global Entry benefits through membership in the NEXUS program. However, foreign citizens typically have to go through additional screening and may need to seek prior-approval through their country of citizenship prior to applying through the GOES online portal. For example, UK citizens must first apply, and get an access code from the UK government, prior to applying for Global Entry. You can read more about the special rules for international applicants on CBP’s website.

 

 

What can disqualify me when applying for Global Entry?

As mentioned above, CBP has a great deal of discretion in administering the Global Entry program but it specifically cites the following factors as ones that can lead to a denial:

(i) The applicant provides false or incomplete information on the application;
(ii) The applicant has been arrested for, or convicted of, any criminal offense or has pending criminal charges or outstanding warrants in any country;
(iii) The applicant has been found in violation of any customs, immigration, or agriculture regulations, procedures, or laws in any country;
(iv) The applicant is the subject of an investigation by any federal, state, or local law enforcement agency in any country;
(v) The applicant is inadmissible to the United States under applicable immigration laws or has, at any time, been granted a waiver of inadmissibility or parole;
(vi) The applicant is known or suspected of being or having been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism; or
(vii) The applicant cannot satisfy CBP of his or her low-risk status or meet other program requirements.

8 CFR § 235.12(b)(2) (emphasis added).

The last item listed, subpart vii, is very broad and could be interpreted to cover a large range of potential conduct. Ultimately, CBP is looking for travelers that do no present any suggestion that they could be a security risk. Each application is addressed individually and based on the “totality of the circumstances” in each individual’s past.

 

Why would CBP revoke my Global Entry Membership?

The regulations further provide that an existing membership can be cancelled or revoked when any of the following occurr:

(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 otherwise no longer meets the program eligibility criteria; or

(v) CBP, at its sole discretion, determines that such action is otherwise necessary.

8 CFR § 235.12(j) (emphasis added).

Again, you’ll note that these regulations leave CBP open to exercise its discretion as it sees fit. Further, you’ll note that these rules incorporate all the criteria that would disqualify an individual as being criteria that could lead to revocation as well.

 

What can I do if my Global Entry Membership application is denied or revoked?

If your application is denied you can seek redress through three different potential avenues. The regulations provide that you can:

(k) Redress. An individual whose application is denied or whose participation is suspended or terminated has three possible methods for redress. These processes do not create or confer any legal right, privilege or benefit on the applicant or participant, and are wholly discretionary on the part of CBP. The methods of redress are:

(l) Enrollment center. The applicant/participant may contest his or her denial, suspension or removal by writing to the enrollment center where that individual’s interview was conducted. The enrollment center addresses are available at www.globalentry.gov. The letter must be received by CBP within 30 calendar days of the date provided as the date of suspension or removal. The individual should write on the envelope “Redress Request RE: Global Entry.” The letter should address any facts or conduct listed in the notification from CBP as contributing to the denial, suspension or removal and why the applicant/participant believes the reason for the action is invalid. If the applicant/participant believes that the denial, suspension or revocation was based upon inaccurate information, the individual should also include any reasonably available supporting documentation with the letter. After review, CBP will inform the individual of its redress decision. If the individual’s request for redress is successful, the individual’s eligibility to participate in Global Entry will resume immediately.

(2) DHS Traveler Redress Inquiry Program (DHS TRIP). The applicant/participant may choose to initiate the redress process through DHS TRIP. An applicant/participant seeking redress may obtain the necessary forms and information to initiate the process on the DHS TRIP Web site at www.dhs.gov/trip, or by contacting DHS TRIP by mail at the address on this Web site.

(3) Ombudsman. Applicants (including applicants who were not scheduled for an interview at an enrollment center) and participants may contest a denial, suspension or removal by writing to the CBP Trusted Traveler Ombudsman at the address listed on the Web site www.globalentry.gov.

8 CFR § 235.12(k) (emphasis added)

In plain English this means that you can challenge your revocation or denial with one of the three listed authorities: either by 1) writing the local office that conducted your initial interview; 2) using the DHS traveler redress inquiry program and; 3) contacting the CBP Trusted Traveler Ombudsman. No result is guaranteed if you appeal a denial or revocation, and the regulations make clear that no right or privilege in conferred by providing these methods of redress. Nonetheless, CBP has provided these avenues of redress to individuals in the event a revocation or denial occurs in error.

One avenue of redress is not necessarily better than the other. Ultimately, where you should seek redress will depend on the circumstances of your case and the evidence you have available to support your appeal.

 

What is the standard by which CBP adjudicates my redress (appeal) claim?

The regulations provide that when you submit your redress request you

should address any facts or conduct listed in the notification from CBP as contributing to the denial, suspension or removal and why the applicant/participant believes the reason for the action is invalid. If the applicant/participant believes that the denial, suspension or revocation was based upon inaccurate information, the individual should also include any reasonably available supporting documentation with the letter. After review, CBP will inform the individual of its redress decision. If the individual’s request for redress is successful, the individual’s eligibility to participate in Global Entry will resume immediately.

8 CFR § 235.12(l) (emphasis added).

Essentially, this paragraph can be summarized to say, any appeal needs to state clearly why the decision was made in error and provide any and all evidence showing how this decision was based on innacurate information. Specifically this means that appeals that are supported by concrete evidence will have a better chance of success that appeals that provide a conclusory statement like ‘I don’t think CBP should have denied by Global Entry application.’

 

How do I appeal a Global Entry application denial or revocation?

To appeal a denial, first you need to choose which method of redress you will seek a response from: the enrollment center, DHS TRIP, or the Ombudsman. After that you should prepare a clear statement (in the event you present it orally to the enrollment center) or written statement (for DHS TRIP/Ombudsman) outlining why the decision was reached in error. You should support any argument with evidence as to why the decision was made in error or based on inaccurate information.

 

What is the contact information for the CBP Trusted Traveler Ombudsman?

CBP Trusted Traveler Ombudsman

US Customs and Border Protection

P.O. Box 946

Williston, VT 05495

Email: CBP.cbpvc@dhs.gov

Source

 

If my appeal is unsuccessful can I sue the government or file a court case to get Global Entry membership reinstated or granted?

For your typical Global Entry denial or revocation, the quick answer is no. As discussed above DHS and CBP have a great deal of discretion in administering the Global Entry program. This is because Congress specifically granted  the Secretary of Homeland Security with the authority to determine the criteria which disqualifies an applicant or member of the program. See 8 U.S.C. § 1365b(k)(3)(E)(iii).

To illustrate how difficult a challenge to DHS’s authority is, an individual filed a federal district court case in 2011 seeking to have a federal judge order DHS to grant him program membership. The district court judge, reviewed the various allegations made by the plaintiff and ultimately concluded that given the discretionary grant to DHS it was within its rights for denying the plaintiffs membership in that case. You can view that case here if you like. Your typical bread and butter argument for an agency action, the Administrative Procedure Act, 5 U.S.C. § 501 et seq., completely failed because of the nearly unlimited discretion that was delegated to Homeland Security.

Most Global Entry denials will likely fit into the above category, in that they are based on some concrete and justifiable exclusionary criteria and any challenge is unlikely to succeed. If you have clearly violated the terms of membership or are ineligible based on past actions, like a disqualifying criminal conviction, any court challenge is likely to fail. This is not to say all challenges would be unsuccessful, certainly there could be some instances where a plaintiff could prevail, however the scenarios are limited. It is beyond the scope of this article to predict all scenarios where a court action could be successful, but a few potential examples include DHS denying membership to individuals based on their religious affiliation or some other constitutionally-protected criteria which would violate the due process or equal protection clauses of the Constitution.

Conclusion

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

Other information and updates

Update, April 13, 2017: CBP has posted a helpful FAQ related to Global Entry. If you have a question, odds are you should be able to find an answer in this article or on CBP’s FAQ.

 

Update as of February 2, 2017. The President issued an executive order on January 27, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” That EO limited the ability of foreign nationals from certain countries to acquire visas and enter the United States. Additionally, we have been informed that some individuals may have had their Global Entry membership revoked as a result of this EO. The legality of the EO is currently being litigated and until that issue is resolved the likelihood of successfully appealing a revocation based on your country of residence is low. Moreover, the federal agency charged with administering the Global Entry program has wide latitude and discretion. If you feel you have been wrongly targeted based on religious beliefs or other protected affiliation you may want to consider contacting the ACLU.

 

Update as of March 21, 2017. The above travel ban has been replaced by new travel restrictions. This new order is now being challenged by various plaintiffs and the outcome of that litigation will likely be pending for the coming months.

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