Global Entry, NEXUS, and TSA PreCheck After an Arrest or OUI in Massachusetts

A person arrested in Massachusetts can be refused Global Entry, NEXUS, or TSA PreCheck. A person who already holds one of those memberships can lose the membership. U.S. Customs and Border Protection, called CBP, runs Global Entry. CBP can deny a Global Entry application, or remove a member from the program, because of an arrest alone. CBP can take either step before any court decides the criminal case.

The Transportation Security Administration, called TSA, runs TSA PreCheck. TSA decides eligibility under a narrower list of disqualifying crimes. This page explains how each program treats an arrest, a pending charge, a continuance without a finding, a conviction, and a sealed record. The page also explains how a person asks CBP or TSA to reconsider a denial.

The Three Trusted Traveler Programs

Global Entry gives pre-approved travelers faster processing when they arrive in the United States from abroad. CBP accepts a Global Entry member for five years, unless CBP ends the membership sooner. 8 C.F.R. § 235.12(d)(3). A Global Entry member also receives TSA PreCheck at airports in the United States.

NEXUS is the program for frequent travel between the United States and Canada. CBP and the Canada Border Services Agency run NEXUS together. Both countries must approve a NEXUS application. A denial by either country keeps the applicant out of the program.

TSA PreCheck gives approved travelers a faster security screening lane at airports in the United States. A TSA PreCheck membership lasts five years. During the membership, TSA checks the member’s criminal history on a recurring basis.

Arrests and the Global Entry Application

The federal regulation that governs Global Entry is 8 C.F.R. § 235.12. Under § 235.12(b)(2), an applicant is ineligible if CBP, at its sole discretion, determines that the applicant is not a low-risk traveler. CBP bases the low-risk determination in part on the applicant’s past compliance with laws, regulations, and policies.

The regulation lists reasons an applicant may not qualify for Global Entry. The listed reasons include an arrest for any criminal offense, a conviction, a pending criminal charge, and an outstanding warrant, in any country. 8 C.F.R. § 235.12(b)(2)(ii). Other listed reasons include false or incomplete information on the application and an open investigation by any law enforcement agency. 8 C.F.R. § 235.12(b)(2)(i), (iv).

The regulation leaves each decision to CBP’s discretion. CBP can approve an applicant who has an old arrest. CBP can also deny an applicant whose criminal case was dismissed.

Removal From Global Entry After an Arrest

CBP can remove a Global Entry member from the program when CBP, at its sole discretion, determines that the member has been arrested or convicted of a crime. 8 C.F.R. § 235.12(j)(2)(iv). CBP notifies the member of the removal in writing. The removal takes effect immediately. 8 C.F.R. § 235.12(j)(3). CBP does not refund the application fee. 8 C.F.R. § 235.12(j)(4).

CBP can remove the member while the Massachusetts case is still pending in court. A member whom CBP removes from Global Entry also loses the TSA PreCheck benefit that came with the Global Entry membership. A member who has been arrested should check the membership status in the Trusted Traveler Programs account before an international trip.

A Pending Criminal Case

A pending criminal charge is one of the reasons for denial listed in 8 C.F.R. § 235.12(b)(2)(ii). CBP can deny a Global Entry application from a person whose Massachusetts case is still open. When the case ends, the person can apply again and provide certified court records showing the result.

A defendant with an open case must also appear at every court date and obey every condition of release the judge set. If the defendant misses a court date, the judge can issue a warrant for the defendant’s arrest. An outstanding warrant is a separate reason for denial of a Global Entry application.

A Continuance Without a Finding

Many Massachusetts criminal cases end with a continuance without a finding under G.L. c. 278, § 18. The defendant admits that the facts are sufficient for a finding of guilty. The judge does not enter a guilty finding and instead continues the case to a set date. If the defendant complies with the conditions, the judge dismisses the case on that date.

Under Massachusetts law, an admission to sufficient facts followed by a continuance without a finding is not a conviction. Commonwealth v. Villalobos, 437 Mass. 797, 802 (2002). CBP applies the federal Global Entry regulation rather than the Massachusetts definition of a conviction. After the judge dismisses the case at the end of the continuance, the arrest and the admission remain on the court record. CBP can consider the arrest and the admission when CBP decides a Global Entry application.

Dismissals, Not Guilty Verdicts, and Clerk-Magistrate Hearings

Some Massachusetts cases end with a dismissal, a not guilty verdict, or a nolle prosequi, which is the prosecutor’s decision to drop the charge. In each of these outcomes, the court record shows no conviction and no admission. The site’s page on how Massachusetts criminal cases are dismissed explains those outcomes.

The arrest itself remains in the police record. The FBI also keeps a federal record based on the fingerprints Massachusetts police submit after an arrest. The FBI record can show the arrest without showing how the case ended. The site’s page on who can see a Massachusetts criminal record explains the federal record in more detail.

A person whose case ended without a conviction should obtain certified copies of the court docket showing the result before applying. The certified docket is the document that shows CBP or TSA how the Massachusetts case ended.

Many Massachusetts cases begin with a summons and an application for a criminal complaint rather than an arrest. At a clerk-magistrate hearing, the clerk-magistrate decides whether to issue the criminal complaint. When the clerk-magistrate denies the application, no criminal case begins. A person who received a summons instead of being arrested, and against whom the clerk-magistrate denied the complaint application, was never arrested and never charged with a crime.

Asking CBP to Reconsider a Global Entry Denial

CBP notifies a denied applicant of the denial and the reasons for the denial. 8 C.F.R. § 235.12(j)(1). The regulation gives a denied applicant, or a removed member, two methods of redress. 8 C.F.R. § 235.12(k).

The first method is a reconsideration request to the CBP Trusted Traveler Ombudsman, submitted through the Trusted Traveler Programs website. The second method is an inquiry through the Department of Homeland Security Traveler Redress Inquiry Program, called DHS TRIP. The regulation states that both methods are wholly discretionary on the part of CBP.

A reconsideration request based on a Massachusetts case should include certified court records showing how the case ended. For a case that ended with a continuance without a finding, the records should show the dismissal at the end of the continuance.

NEXUS After an Arrest or an OUI

Canada and the United States each review a NEXUS application. CBP states that an applicant may not qualify for NEXUS if the applicant has been convicted of a criminal offense in any country. CBP also states that an applicant who is inadmissible to the United States or to Canada may not qualify.

The Canada Border Services Agency requires every NEXUS applicant to be admissible to Canada under Canadian immigration law. The Canada Border Services Agency also states that an applicant convicted of a criminal offense in any country, without a pardon, may be ineligible.

A Massachusetts OUI conviction can make a traveler inadmissible to Canada, which means that Canadian border officers can refuse the traveler entry. Since December 18, 2018, Canada has treated impaired driving as serious criminality under its immigration law. A person who is inadmissible to Canada does not meet the Canadian eligibility requirement for NEXUS. The site’s page on traveling to Canada after an OUI explains how Canada treats a Massachusetts OUI conviction. That page also covers a continuance without a finding and a pending OUI charge.

TSA PreCheck and TSA’s List of Disqualifying Crimes

TSA decides TSA PreCheck eligibility under its published list of disqualifying criminal offenses. The first part of the list names crimes that disqualify an applicant permanently, such as espionage, treason, terrorism, and murder.

The second part of the list names felonies that disqualify an applicant for a limited time. TSA disqualifies an applicant who was convicted of one of those felonies within seven years before applying. TSA also disqualifies an applicant who was released from incarceration for one of those felonies within five years before applying.

The time-limited felonies include unlawful possession or use of a firearm or other weapon, robbery, arson, kidnapping, extortion, bribery, fraud, and distribution of a controlled substance. In Massachusetts, carrying a firearm without a license under G.L. c. 269, § 10(a) is a felony. TSA can treat a conviction under § 10(a) as a firearm offense on its list.

TSA also disqualifies a person who is wanted, or under indictment, for a felony on either part of the list. The disqualification for a pending listed felony lasts until the warrant is released or the indictment is dismissed.

Operating under the influence is not on TSA’s list. Simple assault and battery under G.L. c. 265, § 13A is not on the list either. TSA can still deny an application based on any other information that TSA considers relevant to eligibility.

When TSA finds a possible disqualifying offense, TSA sends the applicant a Preliminary Determination of Ineligibility. The applicant has 60 days from receipt of that letter to respond, or to ask TSA for more time. The response can include court records showing how the Massachusetts case ended. TSA can also suspend or disqualify a current TSA PreCheck member whom TSA finds to have committed a disqualifying offense.

An OUI Arrest and the Trusted Traveler Programs

Many first-offense OUI cases end with a continuance without a finding under the first-offense OUI provision, G.L. c. 90, § 24D. The defendant’s admission to sufficient facts remains on the court record after the judge dismisses the OUI case. CBP can consider the OUI arrest and the admission when CBP decides a Global Entry application or decides whether to remove a current member.

Operating under the influence is not on TSA’s list of disqualifying crimes. A person who holds TSA PreCheck through a Global Entry membership, however, loses TSA PreCheck when CBP removes the person from Global Entry. TSA decides a separate TSA PreCheck membership under TSA’s own list.

Sealed Massachusetts Records

A judge or the Commissioner of Probation can seal a Massachusetts criminal record under G.L. c. 276, § 100A or § 100C. After a record is sealed, most employers and landlords in Massachusetts can no longer see the sealed record. A Massachusetts sealing order is a remedy under Massachusetts law. CBP and TSA apply federal rules when they decide trusted traveler applications.

The Global Entry application asks about the applicant’s criminal history. False or incomplete information on the application is itself a reason for denial. 8 C.F.R. § 235.12(b)(2)(i). CBP can also remove a member who gave false information during the application process. 8 C.F.R. § 235.12(j)(2)(ii).

A person with a sealed Massachusetts record should review the exact wording of each criminal history question with a lawyer before answering the question. The site’s page on the standards for sealing and expungement explains when a Massachusetts judge seals a record.

Travel Status During a Massachusetts Criminal Case

Attorney Joe Serpa defends criminal cases in the Massachusetts district courts, including OUI cases and assault and battery cases. A client who holds Global Entry, NEXUS, or TSA PreCheck, or who plans to apply, should tell Attorney Serpa at the start of the case. Attorney Serpa then includes the client’s travel status in his advice when the client decides between a trial, a continuance without a finding, and a plea.

A client who is not a United States citizen also faces federal immigration consequences from a criminal case. The site’s page on immigration consequences of Massachusetts criminal charges explains that separate law.

Frequently Asked Questions

Related Serpa Law Office Resources

• Criminal Records and Outcomes in Massachusetts
• Traveling to Canada After an OUI Arrest or Conviction in Massachusetts
• Who Sees a Massachusetts Criminal Record
• CWOF, Pretrial Probation, and Diversion in Massachusetts Criminal Law
• Sealing and Expunging a Massachusetts Criminal Record
• Massachusetts OUI and Motor Vehicle Defense