US Says Immigration Action Taken Against Eteros Execs Not Retaliatory for CIT Win
The Court of International Trade doesn't have jurisdiction to hear importer Eteros Technologies USA's case against CBP's alleged retaliation against the company for its success at the trade court regarding the admissibility of its marijuana trimmers, the U.S. said. Filing a reply brief last week in support of its motion to dismiss the case, the government argued that Eteros' case doesn't challenge the "administration and enforcement" of an import transaction" (Eteros Technologies USA v. United States, CIT # 25-00036).
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The U.S. also said that CBP's decision to ban Eteros' CEO from entering the country for five years wasn't based on his success at the trade court but was instead based on the executive's failure to cooperate with border officials.
Eteros prevailed before the trade court in 2022, with CIT ruling that the company could import "drug paraphernalia" that was legal to obtain at the state level (see 2209210034). Despite the decision and a CBP HQ ruling affirming the court's treatment of its imports, the importer said CBP officers retaliated against two Canadian Eteros executives by denying them the right to enter the U.S. and, for one of them, CEO Aaron McKellar, banning him from entering the U.S. for five years (see 2501300018).
Eteros then filed suit against the retaliatory action under Section 1581(i), which gives the court "residual" jurisdiction regarding the "administration and enforcement" of matters decided under its other jurisdictional grants, including its protest jurisdiction, which Eteros claimed in its initial case. The U.S. moved to dismiss the case, arguing that Eteros' case revolves around two "immigration-related matters," which CIT doesn't have jurisdiction to hear (see 2505050054).
In response, Eteros said the trade court has jurisdiction to hear the case under Section 1581(i) to prevent CBP from undermining the administration and enforcement of the court's prior judgment. The government responded, arguing that jurisdiction under Section 1581(i) doesn't exist here, since CBP's immigration enforcement actions regarding the two Eteros executives "in no way relate to the importation of merchandise or the exemption to the Controlled Substances Act’s import ban on drug paraphernalia examined by the Court in Eteros I."
Even if Eteros' case could somehow be construed to concern the importation of goods, "any exclusion of those goods would be covered by section 1581(a), as section 1581(i) may not be used to circumvent the requirements of the Court’s other jurisdictional provisions," the brief said. While the importer says the case stems from a law providing for import restrictions, the immigration actions actually arise out of immigration statutes, the U.S. said.
Eteros invoked a few cases to make its point, including the U.S. Court of Appeals for the Federal Circuit's decision in Shinyei Corporation of America v. U.S., in which the court granted Section 1581(i) jurisdiction for a suit challenging the Commerce Department's liquidation instructions in an antidumping duty review. The importer argued that in Shinyei, the appellate court made clear that when a suit isn't attacking an "underlying trade ruling per se" but an agency's enforcement of that ruling, Section 1581(i) provides jurisdiction.
In response, the U.S. said the "factual differences between this case and Shinyei could not be starker." Shinyei was a trade case, not an immigration case, and saw the CAFC hold that liquidation of subject entries didn't render the case moot and thus divest CIT of Section 1581(i) jurisdiction. "Here, Eteros is not challenging Commerce’s liquidation instructions, nor does Eteros allege there are any entries that have been liquidated in a manner adverse to Eteros," the brief said. "To the contrary, Eteros does not dispute that since the Eteros I decision, Eteros has been able to import its products without interference."
The government repeatedly emphasized that the immigration actions weren't based on Eteros' success in court.
CBP said the CEO, McKellar, was banned from entering the U.S. due to his "refusal to answer questions upon seeking admission." Specifically, McKellar was found to be inadmissible under the Immigration and Nationality Act, Section 212(a)(7)(A)(i)(I), "after he repeatedly refused to answer questions during secondary inspection regarding his identity, alienage, or application for admission."
The other Eteros executive denied entry, Amanda James, was "found inadmissible under INA § 212(a)(2)(C)(i)." This provision denies entry into the U.S. for controlled substance traffickers. The U.S. said this immigration enforcement action is "unrelated to Eteros’s import activities at issue in Eteros I and" was "executed pursuant to statutory and regulatory authorities unrelated to the laws at issue in Eteros I." The U.S. added that the previous Eteros case has been implemented "in full," noting that Eteros has been able to import its marijuana plant trimmers unencumbered.