Canada: What Can I Do If My NEXUS Card Is Confiscated By The CBSA?

Last Updated: September 16 2016
Article by Cyndee Todgham Cherniak

The Canada Border Services Agency (“CBSA”) may confiscate, revoke or cancel a NEXUS Membership for a number of reasons, such as (1) a breach of a customs law (e.g., undervaluation or not declaring goods purchased or acquired outside Canada), (2) a breach of an immigration law (e.g., working in Canada without a proper visa), (3) a breach of a NEXUS Program rule (e.g., using the NEXUS lane with a person in the vehicle without NEXUS approval, having commercial goods in a vehicle when you used the NEXUS lane, failure to update information of your NEXUS file after a new passport is issued or you have moved, etc.), (4) a determination of ineligibility (e.g., criminal charges are laid), or (5) a determination that the information of a NEXUS application or renewal is false (e.g., no mention of a past customs violation).

Usually, the CBSA will confiscate a NEXUS Card during a secondary inspection or will send a letter indicating that your NEXUS membership has been cancelled.  You have 90 days to take action and ask the CBSA to review the decision to cancel your NEXUS membership.  The 90 day period starts on the date that you receive the cancellation letter from the CBSA. That being said, the Presentation of Persons (2003) Regulations currently sets the limitation period at 30 days and the CBSA has announced the deadline will change to 90 days.  The 90 day limitation period matches the 90 days limitation period in the Customs Act for appeals of penalties.

CBSA Confiscated NEXUS Card Due to Customs Violation

If the CBSA confiscated your NEXUS Card due to a customs violation, it is important to file 2 appeals. One appeal is filed with the NEXUS program and is in respect of the cancellation of the NEXUS privileges (this is the one that is usually most important to the traveller). The second appeal is the appeal of the CBSA’s determination that there was a customs infraction and is filed with the Recourse Directorate (this is often the appeal with less importance to the traveller, but more importance to the CBSA).  This second appeal of the customs infraction is a necessary step that must be successful before the NEXUS appeal will be considered by the CBSA NEXUS Program.  The Recourse Directorate will review the customs infraction appeal and, if successful, will send a letter to the NEXUS Program to support your NEXUS appeal.  If the Recourse Directorate finds that a customs contravention did occur, you will not be successful in the NEXUS appeal.  It is important to note that the NEXUS appeal must be filed within the 90 day limitation period and the customs infraction appeal will not be concluded within the first 90 days. This means you must file the NEXUS appeal and not wait until you hear back from the Recourse Directorate.

The strategy of the appeal of the customs infraction will depend on the actual infraction.  The most common infractions we see are failure to declare goods (e.g., you forgot about a good you purchased or acquired outside Canada or did not tell the Primary CBSA officer about the good) or undervaluation of goods (e.g., a person says they purchased  or acquired outside Canada $400 worth of goods and you actually have more than $400 worth of goods).  It is also common to see the CBSA confiscate a NEXUS Card for failure to check the box for agricultural goods (or food) or failure to declare more than $CDN 10,000.  The CBSA has also confiscated NEXUS Cards of:

(a)   travellers who did not have a CITES permit when importing certain goods;
(b) travellers who did not provide truthful answers about importing alcohol and/or tobacco; and
(c) travellers who did not answer all questions truthfully (which sometimes is really that the CBSA did not like you or you did not behave nicely with the CBSA officer).

There are a variety of other reasons that the CBSA may determine that a customs infraction has occurred.

The customs infraction appeal must set out the facts, details concerning the dispute and the reasons for the appeal. The appeal should include any and all relevant documents concerning the “disagreement” with the CBSA.  Most importantly, it is very important to not admit a mistake as the CBSA officer often asks you to do when discussing appeal rights.  How you present your case is very important.

After the appeals are filed, the CBSA, Recourse Directorate will send a copy of the CBSA Officer’s notes on the day in question relating to the “disagreement”. The CBSA, Recourse Directorate will give you 30 days to file additional information after receiving the notes. If your letter of appeal is very divergent from the CBSA Officer’s version of the events, you will have a problem in explaining those differences.

For more information, please review "Canada’s NEXUS Program 101" and "What Canadian Corporate Counsel Should Know About The NEXUS Program".

CBSA Cancelled Your NEXUS Membership Due to a Breach of a NEXUS Program Rules

If the CBSA cancelled your NEXUS Membership or confiscated your NEXUS Card due to a breach of the NEXUS Program, you file one appeal with the NEXUS Redress Committee.  If the NEXUS Redress Committee Level 1 does not allow the appeal, you may file a further appeal to the Recourse Directorate.

This appeal must explain what happened.  However, if you ignored the rules of the NEXUS Program or forgot the rules of the NEXUS Program, you are unlikely to be successful in your Nexus appeal.  That being said, honest mistakes are sometimes forgiven and second chances are sometimes given.  It will all depend on the facts and the CBSA Officer’s notes about the incident in question.  There are many things you can include in your NEXUS appeal to improve your chances of success. How you communicate the details will also affect your chances of success.

That being said, recent changes to the enforcement of the NEXUS Program rules by the CBSA decrease chances of success in NEXUS appeals. See our recent post "When Are You Not Allowed To Use The NEXUS Lane".  Also look at "Know the Rules: Canada Border Services Agency NEXUS Membership Program Guidelines".

CBSA Confiscated NEXUS Card Due to Immigration Law Violation

If the CBSA confiscated your NEXUS Card due to a immigration law violation, it is important to file 2 appeals. One appeal is filed with the NEXUS program and is in respect of the cancellation of the NEXUS privileges. The second appeal is the appeal of the CBSA’s or Immigration Canada's determination that there was a immigration law infraction.  What steps need to be taken to appeal the alleged immigration violation depends on the type of violation.  Each case must be reviewed for specific facts and a specialized strategy for the appeal will be necessary.

CBSA Cancelled NEXUS Card Due to Ineligibility

If the CBSA cancelled your NEXUS Membership due to a determination of ineligibility, it is most commonly the result the CBSA reviewing information concerning an arrest or a criminal conviction.  You will have to file one appeal with the NEXUS Redress Committee and provide evidence that the charges were dropped or dismissed by a court of law. If you have been given a pardon, you would need to provide evidence of the pardon.

For example, an individual’s NEXUS membership was cancelled after a CBSA officer determined, based on incomplete information in the National Crime Information Center, that the individual had been convicted of an offence.  However, in fact, the charges had been dismissed.  We were able to locate the necessary documents to provide the needed evidence to persuade the CBSA to overturn the cancellation.

We have seen cases where the CBSA cancelled a NEXUS Membership for perceived breaches of criminal laws. For example, a Canadian had his NEXUS Membership cancelled because his name was located in the phone of a person of interest.  We helped this person organize documents to demonstrate he had “good character” and the CBSA had made a rush to judgement when finding his name in someone else’s phone.

We have also seen cases where the CBSA cancelled a NEXUS Membership because of activities considered to demonstrate “poor character”, such as a determination after the issuance of a NEXUS Card that the person committed a customs infraction prior to applying for a NEXUS Card.  In this case, we needed to file two appeals and follow a process similar to the process described above.

When we are preparing for appeals of this category of NEXUS appeal, we sometimes need to file an ATIP (access to information) request.  Having the CBSA’s file can help in responding to the perceived ineligibility.  For more information, please review “How To Find Out What Is In The CBSA Files About You“.

It is not a simple and quick process to appeal a confiscation of a NEXUS pass (any of the categories discussed above). The process is not written anywhere and may take over a year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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