Importer Says CBP Abused Authority by Retaliating Against Executives for Winning at CIT
CBP unlawfully abused its authority by engaging in retaliation against employees of importer Eteros Technologies USA after the company succeeded at the Court of International Trade in overturning the agency's detention of its marijuana-related drug paraphernalia, Eteros alleged in a new complaint at the trade court (Eteros Technologies USA v. United States, CIT # 25-00036).
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Eteros said that since it secured the victory at CIT in 2022, CBP has targeted the company's executives and engaged in "unjustified enforcement actions that mischaracterize lawful activities" as violations of federal narcotics trafficking laws. The agency denied the renewal of the executives' visas, issued expedited removal orders against the individuals, issued five-year entry bans and revoked NEXUS memberships for the executives, the complaint said.
In 2022, the trade court said Eteros could permissibly import "drug paraphernalia." The court found that Washington state's decision to make the importation of marijuana-related drug paraphernalia legal fell under a state exemption allowing such action under federal narcotics laws (see 2209210034). The trade court ruled similarly a month later in a separate case involving importer Keirton USA (see 2210200033). Neither decision was appealed by the U.S.
In March 2024, CBP issued an HQ ruling affirming CIT's treatment of the imports of drug paraphernalia made legal under state law. The ruling said that "cannabis-related merchandise intended for states with legalized cannabis industries may be lawfully imported under the [federal] exemption."
But Eteros alleged that, in the following months, CBP officers in Washington engaged in retaliatory action against Amanda James, director-strategy and business development at Eteros Canada and Eteros USA, and Aaron McKellar, their founder and CEO. Both James and McKellar are Canadian citizens and residents.
The complaint said that, in June 2024, James traveled to Washington state from Canada to renew her L-1A work visa, which she had held for the previous three years. At CBP's offices, James "was taken to a room for secondary questioning, and persistently interrogated by CBP about her employment with Plaintiff Eteros," the company said. After the interrogation, CBP denied James' visa extension on the grounds that she was "engaged in illicit narcotics trafficking."
The agency threatened arrest and prosecution if she attempted to reenter the U.S., the complaint said. CBP also revoked James' NEXUS membership.
In October 2024, McKellar sought to enter the U.S. "for a personal trip, to shop" at a Trader Joe's in Washington state, presenting his NEXUS membership card upon entry. CBP nevertheless brought McKellar into "secondary inspection, where they immediately targeted him with questions related to Eteros’ business activities and harassed him with respect to Eteros’ prior legal success against CBP," the complaint said.
It said the CBP officers' comments "were entirely baseless and appear designed to malign the legitimacy of Eteros’ operations in retaliation for its litigation success against CBP." For instance, Eteros said one officer suggested that its customers should buy from U.S. companies. CBP refused McKellar's request to withdraw his application for admission, then issued an expedited removal order against him, "requiring him to return to Canada" after concluding that he was "knowingly and intentionally contributing to the proliferation of the marijuana industry in the United States," the complaint said. The executive's NEXUS membership was then revoked.
According to the complaint, the following month, Harmit Gill, the CBP area port director for Blaine, Washington, denied a request to vacate the removal order, finding that McKellar and Eteros are "encouraging, promoting and assisting in the production of marijuana for the purpose of distributing and dispensing and thus, are aiding and abetting the narcotics trafficking of marijuana in the United States."
Gill's decision said that, while Eteros succeeded at CIT, the trade court "did not determine that their business was outside the scope of federally illegal marijuana production." The ruling "solely addressed the import restrictions" and has "no basis on the federal legality or immigration consequences" related to a non-citizen's involvement in the marijuana industry, Gill said in the decision.
Gill also said CIT "is a court of limited jurisdiction and lacks authority to set precedent over U.S. immigration law," making its ruling an improper basis to admit McKellar into states that have legalized marijuana.
Eteros alleged that it has suffered material injury as a result of CBP's actions, since its business requires that employees be able to travel to the U.S. The agency has also created "a realistic apprehension" among Eteros' employees that "by conducting their lawful business" in line with CIT's decision, CBP will "allege that they have engaged in illicit narcotics trafficking and are subject to arrest, prosecution and imprisonment."
In all, Eteros is seeking a declaration that its activities pertaining to the importation of "cannabis-related merchandise" doesn't "per se constitute 'narcotics trafficking'" or "aiding, abetting, assisting, conspiring, or colluding in such activities." The company is also seeking relief under the All Writs Act, which allows courts to issue orders needed to effectuate its rulings.
CBP declined to comment on the complaint.