CBP officers and Border Patrol agents working southbound inspections at the Lincoln-Juarez International Bridge in Laredo referred a Honda Civic for secondary examination. On the driver’s body, in eight bundles, officers found roughly $165,000 in unreported currency. They seized the money, seized the car, arrested him, and turned him over to Homeland Security Investigations.
There is a question buried in that sequence that almost nobody in these cases asks: is taking all of it lawful?
Not whether a violation occurred. Whether the government may keep every dollar as the consequence. The Supreme Court has answered that question, and the answer is not always yes.
The Case Every Claimant Should Know
In United States v. Bajakajian, 524 U.S. 321 (1998), a man was stopped at Los Angeles International Airport preparing to board a flight with his wife and two daughters. Customs inspectors, using dogs trained to detect currency, found cash in the family’s checked baggage. The total came to $357,144, none of which had been reported.
He pleaded guilty to the failure to report. The government sought forfeiture of the entire $357,144. The Supreme Court held that taking all of it would violate the Excessive Fines Clause of the Eighth Amendment, because full forfeiture would be grossly disproportional to the gravity of his offence. The forfeiture was reduced to $15,000.
What the Court weighed
The district court had found the funds were not connected to any other crime and that he was carrying the money to repay a lawful debt. The Supreme Court noted that the failure to report affected only the Government, and in a relatively minor way: no fraud, no loss to the public purse. It also observed that the maximum penalties available under the Sentencing Guidelines were six months and a $5,000 fine, figures dwarfed by the $357,144 the Government wanted. Minimal culpability, minimal harm, enormous forfeiture.
The principle is that a punitive forfeiture violates the Clause if it is grossly disproportional to the gravity of the offence it punishes. A reporting violation is the withholding of information. Where that is genuinely all that happened, forfeiting a life’s savings as the price of a missing form can cross the constitutional line.
How the Challenge Works Now
Congress codified the proportionality challenge for civil forfeiture at 18 U.S.C. § 983(g). A claimant may petition the court to determine whether a forfeiture is constitutionally excessive. The court compares the forfeiture to the gravity of the offence, and if it finds the forfeiture grossly disproportional it must reduce or eliminate it.
Two features of that provision decide whether it is available to you at all.
- The burden sits on the claimant. You must establish gross disproportionality by a preponderance of the evidence, at a hearing before a judge without a jury.
- It is a judicial remedy. Section 983(g) contemplates a petition to the court. An administrative petition to CBP asks the agency to exercise discretion under its own mitigation guidelines. That is a different thing, decided by a different decision-maker, and a constitutional excessiveness argument is not what those guidelines are built to assess.
The election of proceedings form decides whether this is even on the table
This is the third distinct thing that turns on that single form. Electing court proceedings puts the Government to its proof, opens the door to fees and interest for a claimant who substantially prevails, and makes a proportionality challenge available. Electing the administrative route is faster, cheaper, more flexible, and in most cases still the right call, but none of those three are part of it. On a very large seizure arising from a pure reporting failure, that is a decision worth making deliberately rather than by default.
Our page on the CBP election of proceedings form sets out the options, and our page on the CAFRA seized asset claim form covers what filing a judicial claim requires.
Where This Bears on the Laredo Case
One detail in the release is worth isolating. The money was on the driver’s person, in bundles. It was not built into the vehicle.
CBP seized the Honda anyway. A conveyance can be exposed to forfeiture where it is involved in the offence, and a car driven to the border by a man carrying concealed currency is within reach of that language. But the proportionality question applies to the vehicle as much as to the cash. Taking a car in addition to $165,000, where the vehicle itself was not modified, not used to hide anything, and served only as transport, is the kind of compounded consequence that a proportionality analysis exists to test.
The Limits, Stated Plainly
Bajakajian is not a general escape from currency forfeiture, and anyone told otherwise is being sold something.
- The facts there were exceptionally clean. The money was lawfully obtained, destined to repay a lawful debt, and unconnected to any other crime. Those findings did the work.
- “Grossly disproportional” is a demanding standard. It is not a proportionality balance in the ordinary sense, and courts have not treated it as a routine discount.
- Concealment changes the analysis. Where the allegation is bulk cash smuggling rather than a bare failure to report, the gravity of the offence is different and the comparison starts from a different place.
- A connection to other criminal activity ends it. The argument depends on the offence being, in substance, a paperwork violation.
What the case does establish is that the amount seized is not automatically the amount forfeited, and that there is a constitutional ceiling on the consequence of a reporting failure. For a traveller facing the loss of a six-figure sum over a form, that is worth knowing exists, even where the administrative route remains the sensible path. The mechanics of that route are on our page about the petition for remission or mitigation of seized cash, and the local process is covered on our page about cash seized at the Laredo port of entry. Outcomes depend heavily on the specific facts and the documentation available.
Facing a Large Currency Forfeiture?
On a substantial seizure, the choice between the administrative and judicial routes should be made before you sign anything. Contact us for a confidential case evaluation.
Frequently Asked Questions
Can CBP really keep all of my money over an unfiled form?
Not without limit. The Supreme Court held in United States v. Bajakajian that forfeiting the entire sum for a reporting violation can be grossly disproportional to the offence and violate the Excessive Fines Clause. Whether that applies depends heavily on the facts.
How do I raise an excessive fines argument?
Through a petition to the court under 18 U.S.C. § 983(g) in a judicial forfeiture proceeding. The claimant bears the burden of establishing gross disproportionality by a preponderance at a hearing before a judge.
Is it available in the administrative petition process?
Section 983(g) contemplates a petition to the court. An administrative petition asks CBP to exercise discretion under its mitigation guidelines, which is a different decision-maker applying a different framework.
Does it help if my money was concealed?
It makes the argument harder. Where the allegation is bulk cash smuggling rather than a bare failure to report, the gravity of the offence is different, and the proportionality comparison starts from a less favourable place.
Legal Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Reading it, or contacting Great Lakes Customs Law through this website, does not create an attorney-client relationship. Whether a forfeiture is constitutionally excessive depends entirely on the facts of the individual case and on how the reviewing court applies the governing standard; nothing here should be read as an assessment of any particular forfeiture or as a recommendation to elect judicial proceedings. Laws, regulations, and CBP procedures change, and the outcome of any customs seizure or forfeiture matter depends heavily on its specific facts and circumstances. No result is guaranteed or implied. References to a publicly reported arrest are descriptive only; an arrest raises no inference of guilt. You should consult a licensed attorney about your particular situation before taking or refraining from any action.