CBP’s Post Entry Procedural Due Process Disclosure Manual
Fifth Amendment of the U.S. Constitution prohibits federal government, which includes Customs and Border Protection (CBP), from depriving a person of property without due process of law. Fifth Amendment requires CBP to follow adequate procedures before a person is deprived of property. LawCustoms editor has not investigated as to whether money = property under the Fifth Amendment, but if it did, then CBP’s Protest/Petition Processing Handbook would be probative of CBP’s compliance with Due Process requirements.
The handbook was issued by CBP’s Headquarters (HQ) for field offices or ports throughout the United States. Accordingly, it is a command by HQ to follow enumerated procedures at the post entry stage. For importers, customs brokers, and attorneys, the Handbook can be a treasure trove because the deviation from CBP’s Handbook to the detriment of the complainant, can be a cause for overturning CBP’s decision. For example, the deviation from the Handbook, can be used as a tool to file the request to void the denial of protest under 19 U.S.C. § 1515(d) (2011).
Besides official administrative actions, the Handbook can also be helpful in conversations with CBP officials. CBP, like customs brokerage community, is transforming to become a more centralized and efficient agency. As a result, many activities are outsourced from one geographic location to another. Many yesterday’s customs brokers and importers could rely on personal knowledge and interaction with CBP officials at the local port, and could informally get a sneak preview on the procedural process that could be legally disclosed. Today, customs brokers and importers have to increasingly deal with CBP at the national level across many ports. Personal knowledge may no longer be helpful. This is when the Handbook comes helpful.
If you or your client are protesting the entry and CBP is taking unusually long to make the decision, it is one thing to pick up the phone and say “Why is my protest is taking so long?” and quite another thing to say that “the Headquarters sets the expectation to review the protest within 60 days according to the Handbook,” and that you are calling to inquire as to whether “supervisory approval has been granted for an additional period of 45 to 60 days.” See Handbook, pg. 15. While both of these questions are designed to elicit same kind of information, the type of response from CBP official may be more favorable to the latter question.
The Handbook is also helpful tool in interpreting various entry summary posting one may find through ABI/ACE query. Seeing one’s entry protest in “suspension” status, for example, would immediately tell that Application For Further Review may have been granted. See Handbook, pg. 27. As a note of caution, it is always helpful to communicate with CBP directly, while having the Handbook by your side. CBP officers at the port may not follow HQ strictly, due to local port practice or other reasons. Therefore, it is nothing more but a helpful guide.
The Handbook was not obtained though any special connections, but simply by going to CBP’s FOIA Library. Anyone with an internet and sufficient interest can browse through many interesting publications, such as this Handbook.
If any member of the trade community has a more recent edition of the Handbook and would like to share it, LawCustoms editor would appreciate such gesture.