BUFFALO, N.Y. (WIVB) – U.S. Customs and Border Protection has full discretion over revocations of a traveler’s NEXUS pass, and believes it is immune from lawsuits challenging the decisions.
That’s what the U.S. Attorney’s Office argued in a brief to dismiss a lawsuit filed by Matthew Borowski, a local immigration attorney seeking judicial review of CBP’s decision in December 2022 to revoke his NEXUS pass. The CBP said the attorney no longer met eligibility requirements.
Borowski is a U.S. citizen who lives in Canada, but regularly crosses the border to his Buffalo office and meets with clients in both the United States and Canada. The NEXUS pass reduces the time he wastes in lines of cars and trucks at border crossings.
“I have court hearings, I have client meetings,” Borowski said. “I sort of built my life around the ability to cross the border easily.”
Borowski said he was determined to learn the reasons for the revocation, but CBP rebuffed him. He said officers at the enrollment center in Niagara Falls refused to accept a written Freedom of Information Act request.
Therefore, Borowski mailed a FOIA request, which resulted in more than 200 pages of documents, including some that describe “negative encounters” he had with customs officers. They describe him as “uncooperative and confrontational” during the inspection process.
But Borowski said he has a hard time believing that a federal agency can revoke the NEXUS pass for someone asking questions or for asserting their constitutional rights by declining to answer specific questions.
Instead, the immigration attorney believes an incident involving his wife and a customs agent in 2013, his advocacy, and occasional outspoken criticism of anti-immigration policies have him in the agency’s crosshairs, and they are wielding their power over the NEXUS program as punishment.
“I was asserting my rights, but I did it in a respectful way,” he said. “… They don’t want someone to ask them ‘well, under what authority are you asking for my car registration? Can you please shed some light on that?’ It very well may be that they do have that authority, but I certainly also have the right to ask. They don’t like that.”
For example, Borowski said he was pulled into secondary inspections more than 50 times since that incident at the Peace Bridge Plaza with his wife.
In 2018, Borowski said a border agent “falsely” reported in CBP’s internal database that Borowski lied about his global entry use and failed to declare a banana.
Again in 2018, a federal agent had Borowski charged with creating a disturbance during a protest of the Buffalo Immigration Court for forcing migrants and asylum seekers to stand with their arms and legs spread out while facing a portrait of Donald Trump.
“It honestly felt to me a little bit like something you would see in Russia or China during the communist era,” Borowski said. “So, I asked if they would make any accommodations or perhaps just move the portrait, and I was flat out told ‘no’.”
News 4 Investigates spoke to one another person who said CBP declined to renew his NEXUS pass and refused to provide him with specifics. He did not want to speak on the record because he is a state employee.
Both dilemmas underscore the concerns some have about the broad autonomy given to U.S. Customs and Border Protection to make life-altering decisions without much oversight or transparency.
The U.S. NEXUS program is particularly concerning to some, as it lacks regulations, leaving decisions to the discretion of CBP and an anonymous ombudsman, who one attorney described as “kind of like a Wizard of Oz thing – there is a curtain, but nobody behind it.”
“We haven’t seen much, many cases of abuse at all,” said Robert Leo, a New York City attorney who specializes in NEXUS cases. “The issue is that it’s just an automatic knee-jerk, it’s we’re not going to spend the time trying to figure it out. If they want to appeal, they can appeal. They’re not abusing anything. They think it’s a violation, and if they had thought a little bit more, it shouldn’t have been a violation.”
CBP did not respond to questions for this story and declined to provide anyone for an interview.
A supervisory ombudsman sustained the revocation on April 12, 2023, “based on the totality of noncompliance with the inspection process on numerous occasions.”
“Port and EC can remind the applicant that those who do not qualify for Trusted Traveler Program participation are not prohibited from entering the United States,” the ombudsman recommended.
Incident with CBP officer in 2013
CBP’s website states the NEXUS program is a privilege, not a right. Travelers who have had their passes revoked are told they can still cross the border, but not in the faster-moving Trusted Traveler lanes.
American and Canadian officials have revoked more than 15,000 NEXUS cards in nearly five years, according to CBP data. The U.S. CBP was responsible for about 70% of the revocations.
The program was launched in 2000 as a joint effort between the customs agencies in both the United States and Canada. More than 10 million people were members of CBP’s Trusted Traveler program in March, and CBP receives millions of applications each year.
Borowski said he applied for a NEXUS pass in 2011, before launching a private practice in Buffalo.
On Dec. 14, 2013, Borowski said he, his wife, and their then toddler were at the Peace Bridge Plaza for an outbound inspection when CBP officers “attacked’ his wife as she reached into the back of the vehicle to aid their crying son within the Peace Bridge plaza.
CBP detained Borowski and his wife, and both of their NEXUS passes got revoked. They accused his wife of not following orders.
“That’s what put me on their radar,” Borowski said.
Borowski said they were held in secondary inspection for about three hours, and his wife was ultimately given a ticket for failing to obey lawful orders. The charge was dismissed in March 2014 after a jury trial that took several hours for a charge equivalent to a parking ticket.
The Borowskis filed a civil rights lawsuit against CBP and the officer, but that case was dismissed, too, on grounds that the officer has qualified immunity.
Since then, though, Borowski has felt targeted by customs officers.
Borowski said he is not anti-police and pointed out that many are levelheaded with a full understanding that they are accountable to the people. But the agency itself has some issues.
“They have zero transparency, there’s no accountability,” Borowski said. “They do not feel like they are beholden to the people that they’re there to serve, and it’s a very different mentality and a very different philosophy than the CBSA on the Canadian side, where if you fill out their comment form on their website, you will get a response within a few days.”
In December 2022, Borowski said he had a message in his Trusted Traveler portal that stated his NEXUS pass was revoked.
He drove to the enrollment center in Niagara Falls, but said officers told him they could not provide him any information. They wouldn’t even let him in the building, he said.
Borowski printed a Freedom of Information Act request form, filled it out, and attempted to hand it to the officers at the enrollment center. But they refused to take it.
“Not only would they refuse to take the FOIA request, but they laughed in my face and told me that I should be disbarred as an attorney for trying to make a FOIA request in a way that’s clearly not how it’s done,” Borowski said.
Borowski’s next stop was the Peace Bridge Plaza to speak with a supervisor, but he also declined to provide information. Instead, he sent him to a person believed responsible for the NEXUS program.
They met, and Borowski said the supervisor scrolled through documents on his computer screen while asking him questions.
“He said, ‘You ever have any negative interactions with any CBP officers in the past?'” Borowski said.
Borowski said he mentioned the 2013 incident involving his wife and other confrontations with that same border agent. “But I don’t think I did anything wrong in any of those,” Borowski said.
The supervisor lectured Borowski on “my attitude,” Borowski said, “and telling me that sometimes people should take responsibility rather than blaming others.”
“It almost felt like I was sitting with the headmaster at a middle school,” Borowski said. “I’m the student who is about to get suspended, except that I had done nothing wrong other than perhaps ask questions.”
Borowski believed he did all he could to learn more about the revocation. He filed a FOIA request by mail to see what the CBP has on him.
Months went by without a response, so Borowski filed the lawsuit.
In May, CBP mailed him more than 200 pages of documents on the eve of the deadline for CBP to respond to his lawsuit.
The documents, which Borowski shared with News 4 Investigates, are one-sided narratives that paint him as uncooperative and confrontational during some encounters with customs officers. Pages are filled with redactions, including large sections of blacked-out paragraphs in the details about his wife.
CBP in 2013 had previously revoked his NEXUS pass but the ombudsman a year later “gave applicant another opportunity … but specifically stated to the Enrollment Center to please warn applicant against future noncompliance during both outbound or inbound inspections,” according to CBP documents.
Borowski said CBP recommended to deny his renewal request in 2017, but the supervisory ombudsman stated he did not see any reason to do so.
But in 2023, CBP’s supervisory ombudsman did not decide in Borowski’s favor.
Borowski is suing under the Administrative Procedure Act, for injunctive relief for the revocation of his NEXUS pass and unlawfully redacting details in the records he obtained by FOIA. But he also filed claims that CBP violated his right to free speech, false arrest and imprisonment, assault and battery, unlawful search and seizure, and three other claims.
But according to the U.S. Attorney’s Office, CBP is immune from lawsuits regarding its NEXUS pass decisions and that Borowski did not “suffer a legal wrong.”
In fact, the Administrative Procedure Act “explicitly excludes” judicial review of CBP actions that are “committed to agency discretion by law,” the U.S. Attorney’s Office said in its answers to the lawsuit.
These responses are exactly why Leo, the attorney in New York City who specializes in NEXUS revocation cases, has advocated for Congress to develop regulations for the NEXUS program. The issue is not on the plate of lawmakers, though.
“They are accountable to Congress,” Leo said about CBP. “This is not a big issue for Congress, obviously. As you guys know, our Congress doesn’t even deal with big issues most of the time. There’s not an overwhelming cry from the voting public to think about NEXUS or to do something about NEXUS. If one of the senators, congressmen or women, got their NEXUS pass pulled, then they might be doing something about it.”
As the case winds through the federal court system, Borowski continues to cross the border, but in the slower lanes. And he still runs into conflicts with officers.
In fact, Borowski called News 4 Investigates Wednesday about an interaction he had with an officer while crossing the border.
Borowski told the officer that the lines at the Peace Bridge were some of the longest he has ever waited in.
The agent explained that there are different scenarios that can cause backups, before Borowski said he interrupted to say that he knows the reasons because he is an immigration attorney who crosses the border often.
“I don’t care sir, I don’t care, I’ve heard about you,” the agent said to Borowski. “You have quite the reputation, so you need to settle down.”
“That’s good to know, it’s nice to meet you,” Borowski told her.
“Don’t cross if you don’t like it,” the agent says back to him.
“Oh, I can cross whenever I want because I’m a U.S. citizen,” Borowski said.
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