Dear Judge Furman:

This Office represents the Defendants in the above-referenced actions. We write respectfully to update the Court on U.S. Customs and Border Protection’s (“CBP’s”) efforts to resolve the residual effects of the rescinded policy at issue in these lawsuits (the “TTP Decision”). See ECF Nos. 94, 109.

First, with limited exceptions, the Trusted Traveler Program (“TTP”) applications of New York residents whose applications had been cancelled when the TTP Decision went into effect were restored to the TTP website on September 26, 2020.* These individuals will have until March 26, 2021 to pay their application fees (which had been refunded) and resubmit their applications for processing by CBP. CBP emailed instructions to these individuals on how they should proceed should they wish to resume the TTP application process. Second, on September 25, 2020, CBP restored the TTP memberships of New York residents whose membership lapsed while the TTP Decision was in effect. These individuals will maintain their membership in the program and have until March 25, 2021, to submit a renewal application. If these TTP members submit a renewal application between now and March 25, 2021, they will receive the 18-month grace period to which all TTP members who submit a timely renewal application are entitled, during which they will retain the benefits of TTP membership pending adjudication of their renewal applications, absent the discovery of disqualifying information.

We thank the Court for its attention to this matter.

Respectfully submitted,

AUDREY STRAUSS
Acting United States Attorney

___________________________________________

*There are 50 TTP applications that were submitted by New York residents or individuals with New York driver’s licenses that CBP is unable to restore. These applications were likely submitted in hard copy. Restoration of these applications therefore requires applicants to create a new account using the current online system. On October 5, 2020, CBP contacted each of these individuals by phone, provided them with instructions for setting up a new account, and advised them that their applications would be restored once their new accounts were created.

A federal judge ruled on Tuesday against the Department of Homeland Security, finding that the department acted unlawfully earlier this year when it banned New York residents from Trusted Traveler Programs like Global Entry.

The department "undermined" the core values of the Administrative Procedure Act and made matters worse by "repeating their misleading, if not false, representations," District Judge Jesse Furman wrote in a scathing decision.

The judge, however, acknowledged that the ruling is "somewhat of an empty gesture," since the ban was already rescinded. Nonetheless, Furman concluded that "at a minimum," DHS' decision should be declared unlawful to ensure that it cannot be reinstated.
***

The judge also took aim at Wolf's status, writing: "DHS's decision (the 'TTP Decision') was announced in a February 5, 2020 letter authored by Defendant Chad Wolf, purportedly the Acting Secretary of Homeland Security."

The court uses the word "purportedly" because there is "some doubt whether Wolf was then (and is now) lawfully exercising the authority of Acting Secretary of Homeland Security," according to the ruling.
***