After a CBP currency seizure, you will receive an Election of Proceedings form presenting three options: an administrative petition, an offer in compromise, and a CAFRA claim for judicial forfeiture. Choosing correctly is one of the most consequential decisions in the entire process — and there is a significant amount of bad advice circulating about which option to pick.
The short answer: file a petition first, in almost every case. Here is why — and why the arguments against it do not hold up.
The Case for Filing a Petition First
A petition for remission or mitigation is handled administratively by CBP’s Fines, Penalties & Forfeitures (FP&F) office. It does not go to court. It does not involve the U.S. Attorney’s Office. And critically — filing a petition does not foreclose any of your other options. If the petition is denied or the result is unsatisfactory, you still have the ability to file a supplemental petition, escalate to a CAFRA claim, or in some circumstances submit an offer in compromise.
This flexibility is not just our interpretation — it is stated directly in the CAFRA notice of seizure letter that CBP sends after every seizure:
If you choose to file an administrative petition and are dissatisfied with CBP’s decision regarding your petition (initial or supplemental), you will have an additional 60 days from the date of the initial petition decision, or 60 days from the date of the supplemental petition decision, or such other time as specified by the Fines, Penalties and Forfeitures Officer to file a claim to the property requesting a referral to the U.S. Attorney for judicial action.
In plain terms: you can file a petition, receive a decision, and then still escalate to a CAFRA claim if you are not satisfied. The petition does not close the door to the claim — it keeps it open while giving you a faster, less expensive first attempt at recovery.
The notice also confirms that you can request judicial referral even before CBP has decided your petition:
At any point prior to CBP issuing its decision on your petition, you may request a referral to the U.S. Attorney’s Office for judicial action. If you request judicial action after filing a petition for relief, CBP will not take further action on your petition and will treat it as withdrawn.
This means even mid-petition, if circumstances change and judicial action becomes the better path, the option remains available. The petition preserves maximum flexibility at every stage.
Debunking the Arguments Against Filing a Petition
Some attorneys who handle currency seizure cases advise clients to skip the petition and go straight to a CAFRA claim. The reasons given are usually some version of the following — and each of them is either false or based on a misconception.
“The burden of proof is better for you with a claim.”
Under CAFRA, the government bears the burden of proving by a preponderance of the evidence that the property is subject to forfeiture in a judicial proceeding. That is true. But this does not mean a claim is the better first step — it means a claim is a useful backstop if the administrative process fails. In the administrative petition process, the FP&F officer has broad discretion to return your money based on the merits of your case, the documentation you provide, and mitigating circumstances. You do not need the government to fail its burden of proof — you need the officer to be persuaded that your money should be returned. That is a lower bar, handled faster, and at lower cost.
“A petition cannot be appealed if denied.”
This is simply false, and the notice of seizure itself proves it. As quoted above, if your initial petition is denied you have 60 days to file a supplemental petition or escalate to a CAFRA claim. You are not locked in after a petition denial. You have more options after a petition denial than you do after a claim is filed.
“A petition takes longer than a claim.”
In practice, the opposite is usually true. A CAFRA claim sends the case to the U.S. Attorney’s Office, which has 90 days to file a civil forfeiture complaint in federal court. From there, the case enters the federal litigation track — discovery, motions, potential trial — a process that routinely takes one to several years. The administrative petition process, by contrast, typically resolves in months. The timeline varies by port and case complexity, but it is almost always faster than federal court litigation.
What About an Offer in Compromise?
We generally advise against an offer in compromise as a first option. It is not meaningfully faster than a petition, and it proposes a settlement — meaning you are offering to accept less than the full amount of your money in exchange for resolution. Starting with that posture before CBP has even evaluated your case concedes ground you may not need to concede.
One important note on the mechanics: the October 2023 revision of the CAFRA notice of seizure quietly removed language that previously allowed a second offer in compromise after a first was denied. The current notice does not confirm that a follow-on offer in compromise is available if the first is rejected. The offer in compromise remains a useful tool in the right circumstances — particularly when administrative options have been exhausted and full recovery is unlikely — but the procedural flexibility it once offered has been narrowed.
When Is a CAFRA Claim the Right First Choice?
A CAFRA claim filed as the first election — bypassing the administrative process entirely — is appropriate only in a narrow set of circumstances:
- The seizure itself was constitutionally defective or procedurally flawed in a way that gives you a strong legal argument in federal court
- The facts of the case are so clearly in your favor that a court judgment is more likely to produce full recovery than the administrative process
- There are independent legal claims — such as a Fourth Amendment challenge to the search — that can only be raised in federal court
- The administrative process has already been exhausted or CBP has made clear it will not return the funds
Outside of these situations, filing a claim as your first election eliminates your ability to use the administrative process, commits you to federal litigation, and provides no way back if the court outcome is unfavorable. Unlike a petition, a claim is irreversible. Once filed, there is no flexibility and no ability to try other methods if the judicial track does not go your way.
When the Petition May Not Be the Right Path
The petition is the right first step in most cases — but not all. There are situations where the administrative process is unlikely to produce a favorable result and the CAFRA claim or offer in compromise may be the better strategy:
- You cannot document a legitimate source or intended use for the funds
- You have a prior criminal history, particularly drug-related convictions
- The money was seized in connection with an active criminal investigation
- The seizure notice contains non-standard language indicating CBP has already escalated the matter
An honest assessment of the strength of your case — based on the specific facts, the violation type, and the documentation available — should drive the strategy. This is why a consultation with an attorney who handles these cases regularly is worth having before you respond to the notice of seizure at all.
Get the Right Advice Before You Respond
The Election of Proceedings form is due within 30 days of the notice of seizure. The choice you make on that form determines the path your case takes — and some paths offer far more flexibility than others. Great Lakes Customs Law has handled hundreds of currency seizure cases and knows which strategy produces the best outcome for each set of facts. Call us at (734) 855-4999, text us, WhatsApp us, or contact us online for a free case review.