Judge Says US Lacks Documentation of DEA Involvement in Customs Detention Case

CIT Judge Timothy Reif said that he was struggling with the U.S.'s failure to provide any supporting documentation indicating that the Drug Enforcement Administration was involved at all in the detention, and later seizure, of the entry -- even though DEA involvement was the key point of the case.

“You can understand our predicament,” the judge said. “There’s a lot of discussion of DEA, but there’s no contemporaneous documentation to support the story that the Justice Department is offering here.”

The case asked whether the trade court has the jurisdiction to litigate the detention of an importer’s entry if that detention was not made under CBP authority. The court may hear “any civil action commenced to contest the denial of the protest" under 28 U.S.C. Section 1581(a); but the government argued no protestable decision was made by CBP on importer Unichem Enterprise’s entry because DEA, not CBP, had investigating the entry (see 2404090029).

The judge opened the arguments by confirming the series of events with both parties.

Under CBP’s regulations, the customs agency can only detain an entry for 60 days before it's automatically deemed admitted. However, CBP detained a sole entry of 7-keto dehydroepiandrosterone imported by Unichem from November 2023 until September 2024, at which point the agency finally seized it (see 2409190018). The government argued that the entry was detained under DEA’s authority, not CBP’s, so the 60-day requirement didn’t apply.

Unichem filed a protest with CBP in December 2023, but CBP denied its application, saying that the issue was “non-protestable” because authority for the admissibility decision had been claimed by DEA. But even though the importer received detention notifications every month from November to February, those notices made no mention of DEA’s involvement in the process.

“Can you help us to understand why that is the case?” Reif asked the government. “And why, if DEA was really requesting these exclusions, detaining and then excluding, now seizing, there's no evidence of that -- written, contemporaneous evidence?”

The government argued that, though there was no documentation, DEA had been the acting authority on Unichem’s entry.

DOJ attorney Hardeep Josan explained that DEA had actually been investigating Unichem since May 2023, starting after Unichem had tried to import a controlled substance in another entry that month. She said that, for that entry, the importer filed a DEA form with CBP that “didn’t have all the appropriate information,” so CBP reached out to DEA. When it did, it learned that Unichem wasn’t a registrant with DEA -- something legally required to import controlled substances.

As a result, DEA began investigating Unichem, Josan said. So, when the entry at issue in this case arrived at a port of entry in November 2023, she said, that entry was flagged and detained by CBP because Unichem had again failed to file a DEA form for it. At that point DEA began investigating it, she said.

But that “makes it seem even more unusual” that there are no mentions of DEA in any of the contemporaneous CBP documentation surrounding the shipment in question until June 2024, Reif said -- six months after Unichem’s January complaint. He asked for a way to confirm DEA’s involvement.

“You have the government’s representations, your honor,” Josan said.

She said that most of the communication between DEA and CBP during the investigation occurred via phone calls. She also said that “there might be emails,” but that they are still “trying to indicate whether there are any.”

“We’ve had eight or nine months of this case ongoing, and you’re still trying to find emails or other documentation to support the government’s position?” Reif asked.

The judge then asked both parties whether it’s CBP’s practice to issue detention notices under its own regulations when a detention is being made under another agency’s authority; they disagreed, but neither could provide any authority. He also asked whether it is customary for CBP to alert an importer if a detention is made on behalf of another agency.

Josan said CBP clearly didn’t “in every circumstance,” as it hadn’t done so in Unichem’s case.

“Doesn’t it seem like a good practice to do that?” Reif asked.

Unichem attorney Christopher Duncan argued that CBP’s failure to do so creates a “very confusing situation, because an importer getting [the notice] would think that they can protest, right?”

Another attorney for Unichem, Elon Pollack, argued that DEA doesn’t have the authority to make admissibility decisions at all; that’s not how the "regulatory scheme" works, he said.

He pointed out that, under DEA regulations, an importer whose shipment of a controlled substance has been detained by CBP “for any reason” must inform DEA of that detention within five days.

“It's not a question of DEA coming in and saying, ‘Grab this shipment and hold it for six months or a year,’” he said. “It's a regulatory scheme that the agencies established once Customs withholds goods before release for suspicion of being a controlled substance. It's inescapable.”