Eteros Files Amended Complaint Against Alleged CBP Retaliation for CIT Win
Importer Eteros Technologies and its CEO, Aaron McKellar, filed an amended complaint in a court in Washington state in their case against CBP for allegedly retaliating against the company and its executive for winning a customs case at the Court of International Trade. The complaint added two more executives, Amanda James, director of strategy and business development at Eteros Canada and Eteros USA, and Ryan Bjergso, a senior executive at Eteros USA, alleging that both also suffered "adverse" immigration consequences due to CBP's retaliatory actions (Eteros Technologies USA v. United States, W.D. Wash. # 2:25-00181).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The amended complaint also added pleadings regarding the plaintiffs' claims that CBP violated the Administrative Procedure Act and stripped the company and its executives of due process rights in mistreating them.
In August, the U.S. District Court for the Western District of Washington said it had jurisdiction to review the revocation of McKellar's Nexus membership, which lets pre-screened travelers accelerate their entrance into the U.S., and the case isn't mooted by CBP's vacatur of an order banning McKellar from entering the U.S. for five years (see 2508080055). The court also denied the government's bid to toss the plaintiffs' claims regarding CBP's alleged APA violations, since the U.S. failed to address these claims.
However, the court said claims directly related to the vacated removal order are mooted, and the company's due process claim was insufficiently pleaded.
As a result, Eteros and its executives filed an amended complaint. The complaint noted that James held a valid L-1A vis that expired on June 9, 2024. Two days later, she submitted a petition for renewal, which CBP recommended be denied on the basis that she is involved in "illicit drug trafficking." The agency also revoked her Nexus trusted traveler privileges. After securing a new L-1A visa, the U.S. Citizenship and Immigration Services (USCIS) revoked her visa, citing her association with alleged "illicit" cannabis-related activity, the complaint said.
Bjergso, meanwhile, has a valid L-1A visa and was conditionally approved for Nexus trusted traveler status. But Eteros said, based on "information and belief," his Nexus application was later denied "solely due to" the government's policy of "treating individuals affiliated with Eteros USA as presumed drug traffickers," the complaint said.
Regarding their due process claims, the plaintiffs argued that Eteros has "cognizable liberty and property interests" shielded by the Constitution's Due Process Clause, including the company's rights to "engage in lawful business activities," hire and "rely on the continued employment of its chosen executives" and "maintain its good name and reputation free from unwarranted government stigma." The company's property interests "include its legitimate entitlements in ongoing business operations and related benefits conferred by the government," which can't be suspended without due process, the complaint said.
The plaintiffs said Freedom of Information Act records show that CBP "deliberately acknowledged" that the trade court's decision in Eteros' case "barred it from declaring James inadmissible under" the Immigration and Nationality Act, yet nevertheless used the statute "as a pretext to exclude her while insulating its trafficking allegations from review." This same tactic was used against other Eteros executives, such as McKellar, the complaint said.
"By employing pretextual grounds of inadmissibility, shifting legal justifications, and inter-agency coordination to evade review, Defendants denied Eteros USA meaningful notice and opportunity to be heard," the brief said.
The amended complaint also added a claim that the U.S. violated FOIA by refusing requests from James and McKellar seeking records from CBP and USCIS related to their immigration-related status.