In our piece of responding to a customs money seizure and a petition for return of seized cash, we warn anyone who has had cash seized by Customs against trusting customs that, in a few simple steps, they will get their money back. Do not trust the purported requirements in the notice of seizure like explaining why you “broke the law” (admitting a crime = bad idea) or “unquestionably proving” the source and use of the money, or that bank statements and tax returns are always necessary. Do not take legal advice from CBP. You need legal advice from a customs lawyer.
Recently, I read a court opinion by a (wise) judge who complained about bad legal advice from CBP. In all the 50 states, only lawyers can give legal advice. If a lawyer happens to work for CBP, they could not give advice to someone who has had cash or property seized because they would have a conflict of interest and could not be expected to give candid advice. This judge, in United States v. Martin, 460 F. Supp. 2d 669, 674 (D. Md. 2006), said:
It is . . . unfortunate that, though sent by non-lawyers to people who could not in any case be their legal clients, [CBP] purport[s] to give legal advice [by stating in the notice of seizure letter “Your legal options are as follows.”].
It is illegal to practice law without a license. So when someone at CBP tells you what to do to protect your legal rights, it’s probably illegal. That’s why I bristle when I read CBP’s notice of seizure because it is often inaccurate and contradictory. Worse still are decision letters that ignore or mis-state the petitioner’s right to file a supplemental petition. This puts anyone in jeopardy when trying to respond to the complex and contradictory instructions in a notice of seizure.
Another of those bad pieces of legal advice from CBP is that, if you choose to file an administrative petition under 19 CFR 171.2, it must be filed within 30 days of the date of the notice of seizure letter. This is potentially misleading. In fact, 171.2(b)(1) says “Petitions for relief from seizures must be filed within 30 days from the date of mailing of the notice of seizure.”
In saying this, the notice of seizure letter presumes that the date on the letter is the date it is being mailed. That is sometimes true. It is also sometimes not true. Certainly, there is probably a rebuttable presumption that the date on the letter is the same date as the date of mailing. Atteberry v. United States, 27 CIT 751; 267 F Supp 2d 1364 (2003). But, the post mark on the letter might bear evidence that the date of mailing is other than on the date of the letter.
The best practice is not to fight about it, and submit a petition within 30 days of the date of the letter or obtain an extension. But if 30 days has already passed and CBP is telling you they will not accept the petition, you should hope you saved the mailing envelope and it is post-marked after the date of the notice of seizure letter. And that CBP will act reasonably when presented with that information.
I once received a letter from CBP that provided 30 days to respond. It was dated April 6, ‘post-marked’ on April 15 (from a private meter), and received on April 29. 14 days is a long time for a piece of first class mail to be delivered, and so I suspect from April 15 to April 26 it was sitting on someone’s desk, until that person finally put it in the mailbox for pickup.