Great Lakes Customs LawCurrency Seizures Menuđź’µPetition for Return of Seized Cash
If we take your case and decide to file an administrative petition for remission or mitigation of seized cash (money) it is a legal brief or memorandum that contains legal argument, application of the relevant case law, regulations and statutes, judicial interpretations of the laws (which sometimes vary based on the location of seizure), and, when helpful, references to customs published remission & mitigation guidelines for failure to report (or unpublished remission & mitigation guidelines for bulk cash smuggling and structuring cases).
When the facts allow, the administrative petition for returnof cash seized by CBP gives a detailed factual narrative of yours and the seizing officers’ actions and statements leading up to the seizure. We always strongly argue for a full return (remission) of the money in the petition or, even when there may be a valid basis for the currency seizure, a strong argument for return of all but a very small portion of the money as a “fine” or penalty (mitigation), rather than forfeiture of all your money.
Sometimes the notice of seizure contains bad legal advice like the level of proof required, what type of documentation must be produced, or it may “require” an “explanation” about why you “broke the law.” Admitting you violated the law is always a bad idea; and once you admit it, you cannot take it back when CBP decides to keep the seized money based on your admission.
We balance your 5th amendment right against self-incrimination against giving Customs enough information to return seized money. An administrative petition should never be an “apology letter” or “explanation” like some people prepare (incredibly, I’ve seen even other lawyers do this). The administrative petition for remission or mitigation of seized currency we prepare for our clients’ are usually 11 or more pages, plus exhibits. This is because a petition is a legal document that is necessary to get seized cash back from customs, even if CBP does not require any particular form.
Here are some issues we consider in writing and filing the administrative petition make for our customs currency seizure clients:
Was the search of your baggage or person constitutional?
If the search was unconstitutional then the money must be returned.
Was the currency seizure constitutional?
If the seizure was unconstitutional then the money must be returned.
Was the notice of seizure issued timely?
If the notice of seizure was not issued on time, the government cannot continue the seizure without taking additional steps to legalize their possession.
Who has the burden of proof?
The burden of proof determines “who must convince who” whether the seized cash should be returned.
What is the standard of proof that must be met by the party with the burden of proof?
This standard of proof determines how the party with the burden of proof must go to win.
Does the currency seizure constitute an excessive fine in violation of the constitution?
The eighth amendment of the U.S. constitution can limit, in certain circ*mstances, the amount of money that customs can keep after seizure.
How do the federal courts in your district/circuit interpret the currency reporting requirement (i.e., what does the law mean by a knowing violation)?
If it happened in certain states, your case has a better chance of success.
Did you violate the currency reporting requirement?
If there is no violation of law, then the money must be returned and, in certain cases, the government must pay your attorney fees.
Are you admitting you violated the law? Are you saying too much? Are you not saying enough?
If you admit a violation of law then you cannot defend yourself if you are later charged with a crime, or if Customs refuses to return money.
Are you admitting other violations of laws, such as unlawful currency structuring, bulk cash smuggling, unlicensed money transmission business, racketeering under the Travel Act, conspiracy, FCPA violations (bribes), or false statement to law enforcement, among others?
As in the above answer, if you unknowingly admit you violated a law then you cannot defend yourself if criminally charged. You may admit to do something that you do not consider important but which is illegal, even beyond violating the currency reporting requirements.
Are you receiving means-tested benefits (certain social security payments, food stamps, Medicaid, TANF)?
If so, you not be entitled to have more than a certain dollar amount in assets. You may lose eligibility for these programs and be responsible for repayment to the government or could be criminally charged with fraud.
Did you bring the money from a country under economic sanctions, like Iran? If so, did you violate those sanctions or are you unintentionally admitting you violated those sanctions?
If so, you might not get your money back or it may be used to offset larger fines for violating sanctions programs.
Were there any recognized mitigating factors or aggravating factors?
If there are aggravating factors, penalties can increase by 10% to 25% for each factor. If there are mitigating factors, penalties can be reduced by equal amounts, or even in some extraordinary cases penalties can be completely waived ($0 penalty).
Are there mitigating factors that Customs has authority to recognize even though not in a written policy?
This could result in extraordinary mitigation in the form of a $0 penalty.
Did you make an oral amendment of your declaration the Customs did not honor?
If you did, you may not have violated the law and you could get back all of your seized money.
Are documents properly notarized?
If not, your case will be denied or take much longer.
Are documents properly translated?
If not, your case will be denied or take much longer.
Any lawyer worth your time in petitioning to get seized currency back from CBP should know to ask you these questions and be able to analyze them with you. You or your lawyer should do something other than than just apologizing and admitting a violation of the laws on reporting money over $10,000.
If you are looking for a sample petition to respond to a customs money seizure, you can start with the basic Customs Form 4609 called Petition for Remission or Mitigation of Forfeitures and Penalties Incurred. This form, though made by Customs, is really intended for property seizures and penalty cases under the customs laws of Title 19, not the currency and monetary reporting requirements under Title 31; though it could be a starting point, it’s far too minimal as an administrative petition for remission or mitigation in a currency seizure case by itself.
Getting seized money back from CBP via petition is not simple; the customs officers seizing money sometimes say this or make it sound like you just have to call a number or write a letter to get the money back. This is not true!
If it was ever true, CBP is increasingly making it harder for people to get seized currency (money) back for structuring and bulk cash smuggling cases, especially when there is also a failure to report case. Don’t trust the people at CBP who seized your cash for advice on how to get your seized cash back, contact us for a free currency seizure consultation instead.
