Canada’s NEXUS Program 101

August 1, 2016

NEXUS is a cooperative program developed by the Canada Border Services Agency (“CBSA”) and the United States Customs of Border Protection (“USCBP”) to allow low risk pre-approved individual travellers expedited processing at the Canada-US border.  NEXUS is a regulatory program that is discretionary in nature.  If an individual is approved for NEXUS, he/she is issued a NEXUS Membership Identification Card after an interview.  The NEXUS Membership Identification Card may be used as identification pursuant to the Western Hemisphere Travel Initiative.

Individuals may apply for membership in the NEXUS Program by applying online at www.cbsa-asfc.gc.ca (which redirects to the Global Online Enrollment System).  Both Canada and the United States review and must approve the NEXUS Enrollment Application.

An individual is eligible for NEXUS membership if he/she is a citizen or permanent resident in the United States or Canada.  Individuals may not qualify for NEXUS if one of the following applies:

  • the applicant is not admissible to Canada under Canadian immigration laws;
  • the applicant has been found to have violated customs laws;
  • the applicant has been found to have violated immigration laws;
  • the applicant has been found to have violated an agricultural law (eg: failed to declare food products);
  • the applicant has been convicted of a misdemeanor or criminal offence where no pardon has been issued;
  • the applicant was expelled from a trusted traveler program;
  • the applicant provided false, inaccurate or incomplete information in the NEXUS application or at the enrollment interview;
  • the payment submitted for application to the NEXUS Program was dishonoured; or
  • the applicant fails to meet other requirements of NEXUS.

Participation in the NEXUS is not an irrevocable right.  Participants in the NEXUS Program must comply with Canadian and U.S. laws in order to remain a “trusted traveler”.  A minor error (such as misreading the E311 Customs Declaration Card and not checking a box when applicable) is considered sufficient grounds by the CBSA to exercise discretion to cancel a NEXUS membership.

The front line CBSA Officers have discretion to take a NEXUS Membership Card without considering intention.  The following are some of the reasons the CBSA has cancelled an individual’s NEXUS Membership Card:

  • the participant failed to declare goods purchased or acquired outside Canada (e.g., intentionally did not declare an expensive watch or inadvertently forgot to include a receipt/invoice for $2.00);
  • the participant failed to complete the E311 form properly (e.g., failed to check box that participant exceeded personal exemption limits);
  • the participant failed to update information when new driver’s license/passport issued;
  • the invoice provided by the vendor contained errors and errors were unknowingly repeated by participant;
  • the participant was a passenger in a vehicle at a land border crossing and the driver was not in the NEXUS Program;
  • the participant used the NEXUS lane when importing commercial goods;
  • the participant did not follow officer’s instructions;
  • the participant failed to count the number of cigarettes being imported and exceeded the exemption by cigarettes in an open pack;
  • the participant incorrectly tallied invoices and thereby under-declared value of goods being imported;
  • the participant used incorrect foreign exchange;
  • the participant travelled with family members who did not properly declare goods; and
  • the participant allowed another person to use his/her NEXUS Card as identification.

The following are some of the reasons USCBP has cancelled an individual’s NEXUS Membership Card:

  • the participant’s wife had a muffin in her purse;
  • the participant had a Cuban cigar in his luggage;
  • the participant had commercial goods/samples and used the NEXUS lane; and
  • the participant misused the NEXUS kiosk.

Often when the CBSA determines that a customs infraction has occurred, they will elevate the level of penalty and impose a harsher penalty for a NEXUS participant.  For example, if the penalty should be a level 1 penalty, a level 2 penalty may be imposed because of disappointment that a NEXUS participant is involved.

When there is a valid disagreement about a decision to cancel a participant’s NEXUS Membership Card, the redress is limited and not provided for in customs laws.  If the CBSA issues the infraction notice and/or confiscated the participant’s NEXUS Membership Card, a participant must make a request for redetermination to the CBSA, Recourse Directorate within 90 days of the incident at issue that gave rise to the cancellation of the NEXUS membership.  In addition, the participant must make a request for reconsideration to the NEXUS Enrollment Centre within 30 days of a letter notifying the participant of the cancellation of his/her NEXUS membership.  If the CBSA decision relating to the underlying infraction cannot be reversed, it is unlikely that the NEXUS membership will be reinstated.  If a decision is not favourable to a participant, the participant may file a judicial review with the Federal Court of Canada within 30 days of the unfavourable decision.

If the U.S. CBP issued the infraction notice and/or confiscated the participant’s NEXUS Membership Card, the participant may file a request for reconsideration with the USCBP Ombudsman.  If the participant receives an unfavourable response (which is common), he/she may seek informal appeal to U.S. CBP Headquarters, Office of Field Operations, Traveler Programs.  An appeal can be successful without having to pursue the matter in the courts.  If the appeal is not successful, it may be possible to seek further redress pursuant to 28 USC 1581(i).

As a general rule, a person is able to reapply for participation in the NEXUS program after 6 years.  As a practical matter, the NEXUS program has discretion to refuse any application.

For more inforamtion about Canada’s NEXUS Program and NEXUS membership cancellations, please review these articles.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com. 

This article was originally published on www.Canada-USBlog.com. Republished with permission.

*LexSage Professional Corporation is approved by the Law Society of Upper Canada