What is an election of proceedings form?
Upon receipt of a notice of seizure for unreported currency by Customs, you will see that CBP asks you to complete an “election of proceedings form.” This article is intended to help you understand what the form is and what can be done with it. As always, you should consult with a lawyer before communicating with Customs and deciding how to handle your seizure case.
What’s the purpose of an election of proceedings form?
This election of proceeding form does exactly that: it tells Customs how you want to proceed with your currency seizure case (or other property seizure case, for that matter, but we here are limiting this to CBP currency seizure cases) under various different laws and procedural options. This form presents you with a variety of options, all of which are explained in some legal detail on the form itself:
- Petition Administratively
- Officer in Compromise
- Abandon Any Claim or Interest
- File a Claim for Court Action
You should only choose what option is best for your case after consulting with a lawyer; often a petition makes sense, but there are many times when a claim or offer in compromise is strategically the best decision to get your seized cash back from customs.
What box should I check on the form, and should I file a claim?
You should not blindly sign and returning documents to Customs without completely understanding what you are doing. As CBP’s notice of seizure says, you can only elect/choose one option. Prior to contacting our office for a consultation, you may find our article about responding to a currency seizure an aid to your understanding of the currency seizure process.
I often see client’s mistakenly send in both an election of proceedings form that says they want to file a petition and a CAFRA Claim Form. These are clients who have started the process by themselves and quickly get frustrated and lost in procedural details, who finally seek our help to get their seized cash back from customs.
You cannot sign the election of proceedings form requested that CBP consider a petition, and then also simultaneously file a “CAFRA Seized Asset and Claim Form”. The two exclude each other; you cannot do both at the same time. You must either file a petition, file a claim, make an offer in compromise, or abandon your interest.
What does each option do?
Again, the election of proceedings form goes into a good amount of legal detail that we won’t repeat here. But basically:
- Filing a petition keeps the proceeding with Customs, to be decided by the port’s Fines, Penalties & Forfeitures Officer;
- Filing the CAFRA Seized Asset Claim Form removes the decision from Customs FP&F and puts the case in front of a federal judge;
- Abandoning your interest does just that, relinquishes your interest in the property; and,
- Making an offer in compromise essentially is an avenue for someone to make a settlement offer to the government to settle a “questionable” (i.e., implausible) claim or controversy, and the offer in compromise laws must be strictly complied with.
There are often very good reasons for filing a claim. But, when filing a claim, you should understand that submitting the CAFRA Seized Asset Claim Form will take the decision before a Federal district court judge. That means you will have to appear at a Federal district court on several occasions, exchange written discovery, take and have your deposition taken (that is, sworn testimony under oath and recorded), likely make and respond to several pre-trial motions (such as motion for summary judgment or motion to dismiss), and ultimately, have your “day in court” with a real judge and real government prosecutor’s cross-examining you about the circumstances of the seizure and your finances.
As stated, the analysis of “what box to check” should not be undertaken with consulting with an attorney who knows the customs laws. This article is not a substitute for the legal advice you would receive from a law firm like us, so do not rely on it.
I’m confused about what to do. Now what?
If you have had currency seized from Customs do not try to respond yourself but hire our firm, because we know what we are doing and have successfully handled many cases like yours. If you have questions, please give us a call at (734) 855-4999. We are able to assist with cash seized by customs around the country, including Chicago, Atlanta, New York, Los Angeles, Orlando and many other places, and not just locally in Detroit. Please read these other articles:
- Seizure of currency and monetary instruments by U.S. Customs
- Seizure for bulk cash smuggling into or out of the U.S.
- Structuring currency imports and exports
- Is it $10,000 per person? Under what circumstances is filing a report with Customs for transporting more than $10,000 required?
- Criminal & civil penalties for failing to report monetary instrument transportation
- Is only cash currency subject to seizure by Customs?
- Responding to a Customs currency seizure
- How do I get my seized money back?
- Getting money seized by U.S. Customs back while staying overseas
- How long does it take Customs to decide a petition for a currency/monetary instrument seizure?
- Statute of Limitations for Currency Reporting Violations
- Filing a Petition for Seized Currency (with Sample and Tips) with CBP
- Don’t Talk About Your Customs Currency Seizure Case