How and Why Your TSA PreCheck Application Could Be Rejected

Recent troubling incidents involving passengers attempting to board flights with weapons in their carry-on luggage have highlighted one of the major potential consequences of this conduct – the loss of PreCheck status.

However, there are many other grounds for the TSA to refuse PreCheck status. At some point, you may encounter a client who has been rejected and is seeking your help with the TSA. In such cases, it is highly recommended that you advise them to consult a lawyer. The reasons for this approach will become clear when you read the following description of TSA’s criteria.

The first rule is that TSA PreCheck applicants must be U.S. citizens, U.S. nationals, or lawful permanent residents. Questions of immigration status are very complex and not suitable for advice or direction from a travel advisor.

Beyond immigration/citizenship status, TSA has published a long list of Pre-Check disqualifying offenses. In addition to the specific disqualifying criminal offenses listed, the TSA may disqualify a Pre-Check applicant based on several discretionary criteria:

1. Interpol and other international information, “as appropriate.”
2. Terrorist watch lists, other government databases, and “related information.”
3. “Any other information relevant” to determining applicant eligibility or an applicant’s identity.

TSA may also determine that an applicant is not eligible if the security threat assessment process reveals:

• Extensive foreign or domestic criminal convictions.
• Conviction for a serious crime (including some lesser included offenses of serious crimes, such as murder/voluntary manslaughter), or
• A period of foreign or domestic imprisonment for more than 365 consecutive days.

TSA will also review records of violations of transportation security regulatory requirements, including security-related offenses:

• At an airport.
• Onboard an aircraft (including assault, threat, intimidation, or interference with flight crew, physical or sexual assault or threat of physical or sexual assault of any individual on an aircraft).
• At a maritime port.
• In connection with air cargo, and
• Other regulatory violations.

Disqualification will also occur if any government authority has determined that one of the following is true of the person:

• Due to mental illness, poses a danger to self or others, or
• Lacks the capacity to conduct or manage their own affairs, or
• Has been found not competent to stand trial in a criminal case or found not guilty by reason of insanity, or
• Has been involuntarily committed to an inpatient facility for mental health or psychiatric reasons.

Some criminal offenses are permanently disqualifying, with no statute of limitations on when the events occurred. Those include:

• Conviction, by guilty plea (including ‘no contest’), or found not guilty by reason of insanity for any of the following felonies regardless of when they occurred:
  • Espionage or conspiracy to commit espionage.
  • Sedition or conspiracy to commit sedition.
  • Treason or conspiracy to commit treason.
  • A federal crime of terrorism as defined in 18 U.S.C. 2332b(g), or comparable State law, or conspiracy to commit such crime.
• Attempts to commit the crimes mentioned above.
  • A crime involving a transportation security incident, which is a security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area, as defined in the US Code. The term “economic disruption” does not include a work stoppage or other employee-related action not related to terrorism and resulting from an employer-employee dispute.
  • Improper transportation of a hazardous material under the US Code or a comparable state law.
  • Unlawful possession, use, sale, distribution, manufacture, purchase, receipt, transfer, shipping, transporting, import, export, storage of, or dealing in an explosive or explosive device, as defined in the US Code.
  • Threat or maliciously conveying false information knowing the same to be false, concerning the deliverance, placement, or detonation of an explosive or other lethal device in or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility.
  • Violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) or a comparable State law, where one of the predicate acts found by a jury or admitted by the defendant consists of permanently disqualifying crimes.
• Conspiracy or attempt to commit the crimes listed above.

There is more. The following are labeled Interim Disqualifying Criminal Offenses, but have the same practical effect:

Within seven years of the application, the applicant was:

Convicted of a listed felony by guilty plea (including ‘no contest’). Found not competent to stand trial, or found not guilty by reason of insanity; OR

Within five years of the application, the applicant was:

Released from incarceration after conviction of a listed felony (same qualifying conditions)

The listed felonies for this category are:

• Unlawful possession, use, sale, manufacture, purchase, distribution, receipt, transfer, shipping, transporting, delivery, import, export of, or dealing in a firearm or other weapon, as defined in various provisions of the US Code or Munitions Import List.
• Dishonesty, fraud, or misrepresentation, including identity fraud and money laundering, where the money laundering is related to a crime listed above but excluding welfare fraud and passing bad checks.
• Immigration violations.
• Distribution, possession w/ intent to distribute, or importation of a controlled substance.
• Kidnapping or hostage taking.
• Rape or aggravated sexual abuse.
• Assault with intent to kill.
• Fraudulent entry into a seaport as described in 18 U.S.C. 1036, or a comparable State law.
• Violations of the Racketeer Influenced and Corrupt Organizations Act under 18 U.S.C. 1961, et seq., or a comparable state law, other than any permanently disqualifying offenses.
• Voluntary manslaughter.
• Conspiracy or attempt to commit crimes in this section.

Finally, an applicant will be disqualified if they are currently wanted or under indictment in any civilian or military jurisdiction for a felony listed above.

Exactly how TSA uncovers these facts is beyond the scope of this article and my knowledge, but suffice it to say that this is territory from which travel advisors should stay far away. In the rare case where a client is rejected by TSA and seeks your guidance, you should advise them to consult an attorney for their own good as well as yours.

A final point: these disqualifying conditions relate to Pre-Check® only. They may or may not result in the person being added to a No-Fly List, which raises another complex set of legal and possibly Constitutional issues. The answer is the same: see a lawyer.