What Should You Do If Your CBE Appeal Is Denied?

If you’ve taken the customs broker exam and missed a passing score by a couple of questions, it’s likely that you filed an appeal with CBP. Good for you! It never hurts to appeal several questions if you only missed it by a few. The next dilemma rears its ugly head if the appeal is denied. First, your appeal may not be resolved prior to the next exam date. Do you gamble and not sign up for the exam? If you don’t sign up and the appeal is denied, you won’t be able to take the exam for another 6 months, which means it will have been a year since your first attempt. However, if you sign up for the exam and end up receiving approval and a passing grade on the appeal, then you may have spent $200 that is not refundable unless you are able to notify CBP of your intentions not to take the exam within two business days prior to the exam date.

Let’s say you don’t sign up for the exam and your appeal ends up being denied. What next? If you want CBP’s decision reviewed, then you may request the review by submitting a request to the Assistant Commissioner, Office of International Trade, U.S. Customs and Border Protection within 60 calendar days of the notice of CBP’s decision. Depending on the number of questions you appealed, this might be a good option; however, you are now coming up on the one-year anniversary of your exam. Do you apply to take this exam or do you wait, hoping that the Commissioner will reverse the decision on the initial appeal? The gamble gets a little riskier since it has now been almost a full year since you first took the exam and you might have passed up two opportunities to take and pass it. Consider the options! Pay $200 and take the test or wait on the results from your request for review by CBP? Now, let’s assume that you were confident that CBP would approve the appeal and didn’t sign up for the exam, but the Commissioner affirmed the initial decision. You still have options. You could file an appeal to the Court of International Trade. Understand that it has been a year since you first took the exam and you have passed up two opportunities to re-take it. While you are filing the lawsuit and waiting to be heard by the CIT, the third exam comes up. Do you take it? While you are still waiting for the CIT to hear your case, a fourth exam comes along. Finally, the CIT hears your case and affirms the reviews by CBP. Game over; you did not pass the exam. If you want a customs broker license, you must take the exam again. The next exam is just a few months away. Because of the length of time it takes to complete this process from the first appeal to CBP to the hearing by the CIT, you have waited almost 2 ½ years to take the exam since you first took the exam How much has this process cost you in time and money? Click HERE to read the real life example of Depersia v. United States, a case decided on August 11, 2009.

Filing an appeal is a great idea. Make strong arguments supported by as many facts and examples as possible. However, seriously consider the consequences of not taking the exam if you do not receive a favorable appeal and decide to pursue the review. It might cost less in time and money to retake the exam and you might get your license faster!

To view other decisions decided by the CIT related to CBP’s denial of an appeal, click on the following case name. Only one of the following cases was decided in favor of the individual plaintiff.

Kenny v. United States
Dunn-Heiser v. United States
Harak v. United States
O’Quinn v. United States

CBE Appeal Checklist

If you are one of those who missed passing the exam by just a few questions, you may be thinking about appealing your exam score. If you appeal your CBP Exam score, it is important to follow CBP’s appeal instructions. You will find a link to a checklist at the end of this article.

Appeals must be filed within 60 days of the date of the letter notifying the applicant of the score. CBP will reject the appeal if it:

• is incomplete, is untimely, or is in the wrong format
• includes any arguments written by another person
• does not provide supporting arguments
• argues for an answer the applicant did not select
• contests an incomplete erasure or insufficient marking on the applicant’s answer sheet
  

CBP will provide to the examinee written notice of the decision on the appeal. If the CBP decision on the appeal affirms the result of the examination, the examinee may request review of the decision on the appeal by writing to the Secretary of Homeland Security, or his designee, within 60 calendar days after the date of the notice of that decision. 19 CFR 111.13(f)

The most frequent question we hear is “when will CBP notify me if they accept my appeal?” Unfortunately, there is no magic answer for that question. People who have shared their experiences lead us to believe that you may not receive an answer before the date of the next exam. However, CBP tries to notify those who have had their appeals approved prior to the exam. This could be frustrating because if your appeal is approved, it may not be necessary for you to take the next exam. However, if your appeal is not approved, you may want to take the next test while the information is still fresh.

Save yourself some time and expense by submitting your very best arguments the first time. To help you submit an appeal that complies with CBP requirements, we’ve created the CBE Appeal Checklist. Be sure to review each item and place a check mark next to the individual requirements.