Everybody imports, especially the federal government. Or so that is the lesson that I decided to take away from a tiny black stress bull handed me by another lawyer in my firm. Funny, “stress” and “bull” seem to naturally go well together, don’t they? The USDA is using these diminutive, plasticine bovine to promote its Plant Protection and Quarantine (PPQ) program. It’s pretty cool when a federal government agency hands out promotional products, but I don’t get why it’s doing it. Why promote? Why the carrot? It’s not as if importers and exporters have a choice to participate in PPQ. Everyone's shipments are screened under PPQ. It’s as if the TSA handed out t-shirts to promote its x-ray screening at the airport or your local police department gave out tote bags to promote its use of laser speed guns.
Maybe the USDA is using tiny black stress bulls to liven up the drab sameness of just another bureaucratic hurdle. Maybe it is just having fun. You have to agree, the tiny black stress bull is cute, in a sort of menacing way. Or maybe the agency sensed that a terrible dread is building up within the trade community in anticipation of the PPQ program, and the only answer is to hand out these babies in the hope of breaking up the anxiety. The USDA, like many others, wrongly and tragically thought that stress balls or stress toys reduce stress, when they, in fact, induce stress in otherwise tranquil humans. Take me for example; I freaked when I squeezed my tiny black stress bull and it’s leg almost fell off. I don’t need that kind of aggravation to compound my already pressurized day.
Other than my being bothered by an unseemly fragility of such a macho animal, I have additional issues with my tiny black stress bull (I apologize that I keep repeating myself, but I may never again get an opportunity to say tiny black stress bull).
PPQ is about, in part, import and export enforcement, is it not? USDA imposes strict requirements on importers and exporters, does it not? You should expect the agency, therefore, to be sensitive to and comply with those very regulations, would you not? [Here I will assume that you answered all questions in the affirmative; if not, please secure your own tiny black stress bull from the USDA and ignore the rest of my commentary].
Ladies and gentlemen of the jury, I show you Plaintiff’s exhibit 1, a picture of the country of origin marking for the tiny black stress bull.
We will not deal for the moment with the ethical implications of a federal enforcement agency's failure to purchase domestic products and thereby piling on the nation’s trade deficit. Instead, I focus your attention on the label with China on it. Are you having a hard time seeing it? Exactly! The manufacturer or perhaps the importer placed the label in, ahem, that region that is the most sensitive and pronounced for any bull (other than its horns, a clue in itself), just south of its belly button, if bulls had belly buttons. If you have not yet found it, look to the upper right hand side of the photo. In most bulls, you would be able to see the label easily, but not our tiny black stress bulls. More alarming still, the label is the flimsiest of stickers, just waiting for the slightest moisture or pressure to peel it away from the product it limply identifies.
Section 134.11 of the US Code of Federal Regulations requires that imported items be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article will permit. Does our tiny black stress bull meet all, or any, of these elements? Is the China label conspicuous and legible? Yes, but only if you discount the intense squinting and the magnifying glass that are required to find it. Is the label indelible and permanent? This one is harder to judge since I’ve had the tiny black stress bull only for about seven hours, but I would be surprised if the label was still there in the morning, especially not if the cat finds my tiny black stress bull. Perhaps the “as the nature of the article will permit” language of the regulation will save this label from violating the law, but what is the nature of a polymer stress ball? How can an artificial construct, an offspring of the BP oil spill, if you will, even have a nature? Suddenly we find ourselves in the arena of philosophy, a discipline well beyond my expertise or taste, and an activity that makes my head hurt and my heart palpitate.
Quick, where’s my tiny black stress bull!
A couple of years into this economic malaise and there are no unequivocal signs of recovery.
There is a temptation during economic downturns for companies to slack off in the legal compliance area. Not only is it dangerous to surrender to that urge, but it also misses the great economic advantages that inevitably come from maintaining a real trade compliance program during economic slowdowns.
Let’s take audits or investigations, for example. They are like having federal regulators perform a company-wide root canal. But a fascinating realization happens in the months and years following an audit or investigation. Defending and preparing for the intrusion impose a discipline that helps the target company become more profitable in the long run.
Back to the root canal. You get dental rot because you aren’t as attentive as you should have been to your dental health or, if you were attentive, something snuck through undetected in spite of your best efforts. But a bad tooth is a bad tooth. You wouldn’t stop brushing and flossing during lean times, would you? Indeed, it is during lean times that you take extra care to make sure those things you currently have and the processes in place are not compromised out of fear that you won’t have the resources later to tend to emergency repairs. Taking pain drugs to mask the problem and in the hope that the infection won’t spread is bound to land you in the emergency room and wipes out any “savings” from not going to the dentist and setting you up for an early introduction to the lovely lifestyle of dentures. But if you dare visit the dentist, you certainly are prepared to save your winning smile.
If you have a sound international trade compliance program, you can better take advantage of government initiatives to your advantage. For example, you and your industry peers may be able to bring a successful challenge on foreign competitors under our antidumping laws. You will be better able to take advantage of the protections that US Customs and Border Protection offers to protect your intellectual property.
Is there proof that trade compliance is a money saver? It’s difficult to marshal empirical evidence for or against the proposition, but it’s clear that enhanced penalties for both export and import violations are designed to dissuade companies from viewing fines and penalties as the cost of doing business, merely a nuisance that one suffers through rather than invest in compliance programs. It’s hard to hold on to that kind of thinking, especially during lean times, when you’re whacked with penalties in the tens of millions of dollars.
Let’s also give the Government some credit for trying to provide empirical proof that compliance saves you money. Cargo examinations and delays are bottom line killers, but does enrolling in voluntary compliance programs like the Customs-Trade Partnership Against Terrorism (C-TPAT) help? Yes, according to CBP.
Neglecting trade compliance during lean times allows obvious and hidden problems to fester. Now is the time to take a full measure of your compliance weaknesses and strengths, to find the economies of scale (you wouldn’t believe how much waste and fraud a good compliance program can eliminate), and to avoid problems with federal regulators. Trade compliance, even in big companies that have compliance programs with all the bells and whistles, is seldom a big-ticket item compared to other company expenditures. It becomes a big-ticket item only when the feds knock at your door and you’re not ready. Federal enforcement authorities have an uncanny ability to detect when companies are cutting legal corners. So, don’t cut any. Corners, that is. Keep your compliance efforts robust and honest. Your bottom-line will be healthier for it. Maybe even your smile will improve.
CBP Can Exclude Infringing Merchandise Even If It Belongs To An Importer In Bankruptcy
Assume you pour money, sweat, and tears into developing a nifty new technology. You want to make sure no one steals your hard work, so you file for and receive a patent from the US Government. You find out that one of your competitors is infringing your patent. You file a complaint with the International Trade Commission (ITC) under 19 USC § 1337(a)(1)(B). That section makes unlawful “[t]he importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that ... infringe a valid and enforceable United States patent.” The ITC finds merit in your complaint and orders a formal investigation. You are confident that the ITC will order (upon the President’s approval) US Customs and Border Protection (CBP) to exclude the infringing merchandise. Then your competitor (the company importing the infringing merchandise) files for bankruptcy. You are stunned when the bankruptcy judge orders the ITC to immediately stop its investigation. While the automatic stay in bankruptcy stops collections activities against the bankrupt debtor, it normally cannot stop federal agencies from doing their job. However, this bankruptcy judge views the ITC investigation as different because it was initiated at the request of a private party, so it was not really the federal government that was being restrained.
Do you think the bankruptcy judge was correct?
The federal court from the Eastern District of Virginia did not in ITC v. Jaffe, a decision rendered on June 28, 2010. The court concluded that the bankruptcy judge made a mistake. The automatic stay in bankruptcy could not prevent the ITC from continuing to investigate the bankrupt debtor. While the patent owner filed the complaint with the ITC, it was the ITC that initiated the investigation pursuant to its police and regulatory power. That the patent holder stood to inherit the bond posted by the infringing importer did not mean the patent holder was a creditor, the court reasoned.
The lesson is that bankruptcy can give companies and individuals valuable breathing room and keep bill collectors at bay, but it does not prevent the ITC from investigating whether the bankrupt debtor is violating someone’s intellectual property rights and it does not prevent CBP from excluding the debtor’s infringing merchandise.
An Immigration Law Novice Beats the Odds to Reunite a Child from El Salvador with Her Family in America
“There is nothing I can do to help your case.” The immigration attorney barely finished his sentence when the world came crashing down for 16-year-old Deysi Torres. She did not have to speak English to know what he meant—the lawyer’s tone and grim facial expression clearly conveyed the hopelessness of her situation.
Originally from San Alejo, El Salvador, Deysi is one of thousands of people from Latin America who travel thousands of miles in search of a better life in the United States. Roughly five percent of these migrants are underage children like Deysi was when she left her home country.
When Deysi was five years old her mother became ill and died. Never having known their father, Deysi and her siblings were raised by their grandparents. Growing up, Deysi had big dreams of becoming a nurse and living with her uncle in America. “I remember always talking to my sister about going to stay with our uncle,” said Deysi, whose aging grandparents did not have the means to provide for their young grandchildren.
By the time she turned 16, Deysi was determined to go after those childhood dreams. This meant making the treacherous journey by bus and foot through El Salvador, Guatemala, Mexico, and across the U.S. border to the City of Anna, Texas, where her uncle and his family live. Aware of their limited ability to take care of their grandchildren, Deysi’s grandparents had no choice but to allow her to leave the country in search of a better future in America.
For many unaccompanied children, menaced by predatory smugglers and corrupt police, this dangerous journey ends tragically. Thousands are stopped by authorities as they try to cross the North American border and taken to detention centers before being deported. This was the case with Deysi. She had been travelling by bus and foot for close to a month before U.S. Immigration and Customs Enforcement (ICE) officers caught up with her and sent her to an immigration detention center for minors in Miami.
“I was so tired from walking for days, I was almost relieved,” she said of the encounter with ICE officers. “I was dirty and stinky. I hadn’t showered in days.”
Many child migrants end up spending months in detention centers, tangled up in the bureaucratic legal process. “I was confused and nervous. I didn’t know if the immigration people were good or bad. I didn’t know what to do or think,” said Deysi, recalling the month she spent at a facility in Miami. Fortunately, she was eventually able to stay with her uncle in Texas while awaiting immigration court proceedings.
She and her uncle tried everything they could to find a way for her to obtain legal status in the United States—a process made that much more difficult by their inability to speak English. But they had a difficult time finding an attorney to represent them and were continuously told that there was nothing anyone could do to keep Deysi in the United States legally. By a lucky twist of fate (or “God’s hand,” as Deysi put it) she came across a flyer from the National Center for Refugee and Immigrant Children (NCRIC) and called for help. The organization—a division of the U.S. Committee for Refugees and Immigrants (USCRI) dedicated to providing pro bono legal services for unaccompanied immigrant children—assigned Deysi’s case to Dallas-based attorney Oscar Gonzalez.
“I took the case after reading news stories about the warehousing of immigrant children,” said Oscar, a founding member of Gonzalez Rolon Valdespino and Rodriguez, LLC (GRVR), a small law firm specializing in international trade. Even though his experience in immigration law was admittedly limited, Oscar signed on to the case because he wanted to ensure that Deysi can remain in the United States with her family.
Over the course of three years, Oscar would spend hundreds of hours working on Deysi’s case, guided along the way by NCRIC’s in-house immigration law experts. “The good will created by taking on pro bono projects is much more pronounced in a small firm. It permeates the whole place with a sense of accomplishment, or a feeling that we changed the world positively,” said Oscar. “But there were other angels along the way that helped, including translators, health practitioners, teachers, and school staff.”
The hard work paid off: Deysi, now 20, received her green card in October 2009. She continues to live in Texas with her aunt and uncle and their four children. By now she has graduated from high school and speaks fluent English. Deysi is bursting with pride when she talks about her brother back in El Salvador who has recently graduated from college with a degree in engineering. She too is well on her way to making her childhood dreams a reality: she is currently applying to nursing schools. “I still want to be a nurse,” she said. “I like to help people.”
Oscar describes Deysi as a quiet young woman with a soft smile and trusting eyes. “Deysi’s gratitude disarmed me and almost brought me to tears after each successive step in her case,” he said. “It is a true honor to be invited to the beginning of this young woman’s life in the United States.”
Principal and a founding member of GRVR Attorneys.