Via Courthouse News, we learn of the story of Robert Darnbrough, a Canadian who renounced U.S. citizenship in 2003, and was later denied a Nexus border crossing card by U.S. Customs & Border Protection. Darnbrough filed a Freedom of Information Act request with the State Department in February 2011, which then released some documents to him in November that year. However, they did not deliver information contained in the Consular Lookout and Support System (CLASS), claiming that 8 USC 1202(f) (confidential nature of records) allowed them to withhold it under FOIA Exemption #3.
Darnbrough filed suit against the Department of State in October 2012 to force the release of the records. Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ruled in his favour on Wednesday, stating that “that government cannot rely on Section 1202(f) to withhold information that was not gathered, used, nor is being used to determine an actual past or pending visa application”. There seem to be two pieces of information in CLASS about Darnbrough: some biographical data, and comments about his renunciation and the reason for his Nexus card denial.
If Darnbrough chooses to make public the reasons for that denial, we could learn whether it was related to his renunciation. However, Darnbrough doesn’t seem to be seeking public attention, either back in 2003 when he renounced, or now. I highly doubt he’s a covered expatriate either; he apparently works as an insurance agent in Sasketchewan. Nevertheless he’s in the Federal Register list for Q1 2005, two years after his renunciation. This fits the pattern observed earlier: the Federal Register has a near-perfect record for publishing names of ex-Americans before 2006 — no matter whether they’re rich or poor, public or private — but a far worse record afterwards.
Update, 9 June 2014: yesterday I stumbled across a paper from Joel Paget of Ryan, Swanson & Cleveland PLLC, apparently the lawyer who represented Mr. Darnbrough in this case. It was written in September 2012, before the above ruling, but I reproduce the relevant portion here anyway, as it may be of particular interest to people in Vancouver:
Since the enactment of this provision [i.e. the Reed Amendment] in 1996 there have been no implementing regulations. In checking with other immigration attorneys around the U.S. who practice in the citizenship and taxation area there have been only two reported cases where there has been enforcement of the provision by the U.S. Customs and Border Protection Service. Both cases were in Vancouver, B.C. The reason there has been little enforcement is the inability of the government agencies to agree on how it should be enforced. One of the overriding concerns is over the privacy of U.S. tax files. Nevertheless, the law is still there. A person who is renouncing should be able to explain the reasons for renouncing, assuming they are not related to tax-avoidance.
The first reported case of denial of entry was at the Vancouver, B.C. International Airport by the USCBP. The refusal to allow entry was based on the person having renounced his U.S. citizenship for tax reasons. Because the renunciation was made before Section 212(a)(10()E) was enacted in 1996, the USCBP reversed its position after being presented a legal brief by the person’s attorney.
The second reported case is one I am currently litigating in the Federal District Court in the District of Columbia. The person was denied a NEXUS card at the downtown Vancouver, B.C. office of NEXUS on the basis that he had renounced his U.S. citizenship. The expatriation was after Section 212(a)(10)(E) was enacted in 1996. The USCBP placed information in his file that appears in the Lookout Book used by the U.S. Department of State and the USCBP. He was subsequently denied entry into the U.S. The Department of State refused to release any documents until the lawsuit was filed. The DOS has released a copy of his whole file, except for the information provided by the USCBP from his NEXUS interview. A Motion for Summary Judgment has been filed and we are waiting for the judge to rule on the motion.
While these two cases are local to the Vancouver, B.C. airport and Vancouver, B.C. NEXUS office, the viewpoint of these officers who are from different divisions within the USCBP may infect other USCBP Ports of Entry with their viewpoint. All the USCBP offices share the same Lookout Book. The information that on e officer puts into a person’s computer file stays there for everyone in Department of State and USCBP systems to read until that officer or the supervisor removes it.
