CBP’s Summons to Produce Records
If you were served with a summons to appear and/or produce records 19 U.S.C . § 1509, then contact an experienced attorney to help you respond appropriately. The CBP Summons might state that you are “required” to “produce for inspection” certain records.
The CBP Summons might warn you that “[f]ailure to comply with this summons will render you liable to proceedings in a U.S. District Court to enforce compliance with this summons as well as other sanctions.”
CBP often uses boilerplate language that might include the following: “production of the indicated records is required in connection with an investigation or inquiry to ascertain the correctness of entries, to determine the liability for duties, taxes, fines, penalties, or forfeitures, and/or to ensure compliance with the laws or regulations administered by CBP and ICE.”
The CBP summons might also further “requested” that you “not to disclose the existence of this summons for an indefinite period of time.”
Attorneys to Respond to a CBP Summons
An attorney can help you respond appropriately which might include filing a complaint for declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 and the APA, 5 U.S.C. § 706.
Contact us to find out why the CBP summons might fall outside the statutory parameters of 19 U.S.C. § 1509. In some cases, the summons might be unlawful if it demands the production of records that CBP is not authorized to obtain under 19 U.S.C. § 1509.
Abuses by CBP When Serving a Summons to Produce Records
The complaint might request that the court prevent the U.S. Department of Homeland Security (“DHS”) or U.S. Customs and Border Protection (“CBP”) from unlawfully abusing a limited-purpose investigatory tool to compel a business or individual to provide records during a criminal investigation.
19 U.S.C. § 1509 authorizes Customs and Board Protecction (CBP) to compel production of only a narrow class of records relating to the importation of merchandise. CBP abuses this power when it uses these summons to compel records from an individual or business for a criminal investigation.
In other words, these types of CBP summons often fall outside the statutory parameters of 19 U.S.C. § 1509.
The “Summons Notice” might explain a procedure for the subject of the summons or the person whose “business transactions or affairs” are purportedly being investigated to “object to the examination” of the requested records by “advis[ing] the person summoned, in writing, not to comply with the summons” and “send[ing] a copy of that notice by registered or certified mail to the CBP Officer … who issued the summons.”
To be effective, any such objection would have to be sent “not later than the” deadline set by the CBP Summons for compliance.
Neither the CBP Summons itself, nor the statute that supposedly authorizes the issuance of the summons (i.e., 19 U.S.C. § 1509), nor the regulations implementing that statute describe any procedure to object to compliance with the summons.
What is Authority Does 19 U.S.C. § 1509 Confer?
19 U.S.C. § 1509 confers authority on the Secretary or a delegate at or above the rank of district director or special agent in charge to compel disclosure of records only in connection with “any investigation or inquiry conducted for the purpose of ascertaining the correctness of any entry, for determining the liability of any person for duty, fees and taxes due or duties, fees and taxes which may be due the United States, for determining liability for fines and penalties, or for insuring compliance with the laws of the United States administered by the United States Customs Service.” 19 U.S.C. § 1509(a).
CBP is permitted to compel the production of only records that fall within a narrow category defined in 15 U.S.C. § 1509(d)(1)(A). See 15 U.S.C. § 1509(a)(2)(D) (“[T]he Secretary … may … summon … any … person he may deem proper … to produce records, as defined in subsection (d)(1)(A).”).
Subsection 1509(d)(1)(A) limits the “records” whose production may be permissibly compelled through a summons to two circumstances including:
- those “required to be kept under section 1508 of this title;” and
- “regarding which there is probable cause to believe that they pertain to merchandise the importation of which into the United States is prohibited.”
This article was last updated on Monday, June 28, 2021.