Category: Petition for Remission

How long does it take Customs to decide a petition for a currency/monetary instrument seizure?

Posted by Jason P. Wapiennik on October 9, 2013 with 13 Comments

My clients who have had currency seized from Customs often ask me how long it takes to get the money back, or in other words, how long customs has to respond to a petition? The answer depends on a lot of factors. After the currency/monetary instruments are seized
Customs must issue a notice of seizure, and usually they must issue it within within 60 days. ((19 CFR Part 162)) If you elect to file a petition to try and have them money returned, usually the longest part of the process is waiting for Customs to make a decision on the petition.

That’s because Customs has no time limit or deadline for deciding a petition. This is hard for anyone to understand because almost every aspect of our lives has some sort of time limit on it…. but not so for Customs. It is possible that it could take forever to make their decision; and as ridiculous as that sounds, it’s basically true. ((The exact limits of how long Customs may take to make a decision are discussed by the U.S. Supreme Court in U.S. v. Von Neumann, 474 US 242 (1986), and the government indicated that the Administrative Procedures Act might provide a remedy.))

When Customs revised their regulations, during the notice and comment period someone commented that Customs should be required to make their decision on a petition in 120 days. Here is the exchange that sets forth Customs policy ((65 FR 53565, 68, dated 9/5/2007)):

Comment

One commenter indicates that the regulations should be amended in a manner to require Customs to act on petitions within 120 days. The commenter states that when a petition is received, not much else has to be done by Customs and there is no basis for continued delays.

Customs Response

Customs does not agree. When a petition is received, an investigation often must be undertaken in order to determine the veracity of statements made in that petition. This can be a time consuming process, particularly if information from foreign sources must be obtained. Additionally, there are instances when a claimant to seized property or a charged party asks that Customs delay a decision on a petition for relief. If Customs is required to adhere to a rigid decision schedule, it could work to the disadvantage of such a party. While Customs makes every effort to decide petitions for relief as expeditiously as possible, Customs sees no reason to amend the regulations to place a strict time frame on the processing of petitions.

As stated above, there is no time limit on their deciding a petition because Customs conducts their own investigation and review of the incident. For example, the paralegal specialist assigned to the case must determine who has authority to make the decision (it varies based on the property value), analyze the facts presented in the petition against those presented by the seizing officer, thoroughly review the law with respect to the violation, and determine if FP&F has all the necessary information to render a decision, and if not, refer to another source to get that information. The petition can then be referred to the seizing officer, and/or the office of investigations, other agencies, and other technical and legal experts. This is sometimes called by CBP a “technical review” by Homeland Security Investigations. Sometimes HSI will ask to interview you (bad idea, here’s why).

On top of that, there are the normal delays inherent in the process. There may be a number of petitions ahead of yours; or, the paralegal, investigators, or agents may be on leave, sick or taking a vacation, and of course something more urgent might intervene (for example, a change in priorities due to a government shutdown). All of these things can effect how long it takes your petition to be decided. Some ports, on average, take longer than others. In our experience, Detroit processes its cases much faster than New York or Chicago.

The one thing that is for certain is that hiring an experienced attorney to handle you currency/monetary instrument seizure case is important. An experienced attorney can make sure that Customs has all the evidence they need, and everything is presented to Customs in the appropriate fashion. We often find that when we are hired, Customs issues the notice of seizure immediately which can have a great impact on how quickly the petition is prepared, filed and decided by Customs.

If you have had your currency/monetary instruments seized, do not decide how to respond to the notice of seizure without first consulting an attorney. If a petition is appropriate, my office prepares a detailed legal memorandum that contains factual narrative with my client’s side of the story, what led to the seizure, a review of the relevant law, regulations and Custom’s own guidelines concerning the seizure. When the facts allow for it, my Petition will always include a strong argument for return of the money in full, or even when there is a valid basis for the currency seizure, a strong argument for the money to be returned upon payment of a fine in the smallest amount of money possible, rather than forfeiture of all your money. At times, Customs violation of the law or their own policies may permit us to make technical arguments that cancel the seizure entirely.

If you have had cash seized by customs and are contemplating what to do next, please make use of the other information available on this website or call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We will be happy to answer any questions you have and explain the process to you. 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:

Trademark Infringement: Importing Gray Market Goods and Seizure by Customs

Posted by Jason P. Wapiennik on March 5, 2013

Importers purchasing products from abroad may find that they bought more than they bargained for if the merchandise bears a trademark or trade name. For the protection of registered U.S. trademarks and trade names U.S. Customs and Border Protection (“CBP” or “Customs”) limits the admissibility of foreign trademarks or trade names ((Sometimes collectively called “marks” here)) if they appear virtually identical to those already registered in the US. Ultimately, Customs may seize and forfeit imported gray market goods and impose fines and penalties on the importer. 19 CFR 133.23.

Gray Market Goods Defined

Gray market goods are articles manufactured abroad that bear either a genuine trademark or trade name that is either identical to, or substantially indistinguishable from, a trademark or trade name owned and recorded by a United States citizen or corporation. 19 CFR 133.23(a). The concept can be a bit confusing, but key to understanding is to remember that gray market goods bear a legitimate trademark or trade name but are imported into the U.S. without the consent of the owner of the U.S. trademark. In other words, when a trademark or trade name has been applied to merchandise for use in a foreign country but are imported into the United States, then the goods bearing that trade mark or trade name are considered gray market goods.

Container Ship

The term gray market goods is used to distinguish them from goods that might be sold on black market; gray market goods are sold through legal but unauthorized or unintended channels of commerce. Gray market goods are different from counterfeit goods by the genuineness of their trade mark or trade name; counterfeit goods carry a trademark or trade name which the law calls “spurious.” Sometimes used or refurbished goods fall in the category of gray market goods, and particular laws apply to their lawful importation.

Restricted Entry for Certain Gray Market Goods

Trademarks and trade names of U.S. owners are entitled to protection against imports of gray market goods under two conditions. First, the U.S. owner must register its mark with CBP through the Intellectual Property Rights e-Recordation (IPRR) system. Second, the U.S. trademark and the foreign trademark must be owned by two different people or companies ((Furthermore, the companies cannot subject to common ownership or common control — such as parent companies and subsidiaries, etc.)). The satisfaction of these conditions subjects all incoming gray market goods to “restricted” scrutiny, and Customs identifies them as such in its IPRR database; if the conditions have not been satisfied, the goods are deemed non-restricted.

CBP will almost invariably detain restricted gray market goods for up to 30 days; and what transpires within that time will ultimately determine their seizure and eventual forfeiture or their release. 19 CFR §§ 133.23, 133.25.

Due to a counterfeit’s total lack of authenticity, the statutory penalties for attempting to import a good bearing counterfeit mark are more severe than those for attempting to import an infringing gray good. For the most part, however, the procedures for determining whether an allegedly counterfeit mark should be released or seized do not differ from those of gray goods, set forth below. 19 CFR 133.21.

The Road to Release

When a gray good is detained, the importer bears the burden of establishing that its mark fits one of the exceptions, such as showing that the foreign trademark or trade name was applied under the authority of the foreign owner who is the same as the U.S. owner; or, the foreign and domestic goods on which the marks or names are identical physically and materially. The rationale of this difference-demanding exception may seem counterintuitive; however, the objective of gray Road market rules is to prevent an influx of products which will cause customer confusion. If the marks or names of the products are nearly identical, as is always the case with gray market goods, their physical or material components must also be so similar that the average buyer in the marketplace is not likely to be confused as to the source of the products. 19 CFR 133.23(d). Showing the the imported goods qualify for one these exceptions allows Customs to release them.

A key to successfully challenging detention is requesting a sample of seized or detained merchandise suspected, or alleged, to bear a counterfeit or infringing trademark.

The Road to Seizure

Although this article does not deal with counterfeits directly, it is worthy mentioning that harsher penalties await counterfeit items. CBP has the authorization to obliterate the counterfeit mark or name and destroy the goods if there is no safe way to recycle them. 19 CFR 133.21. CBP may also impose fines on individuals who aid or direct the importation of goods bearing a counterfeit mark or name with the intent of public distribution. The first fine will not be more than the amount the goods would have had if they were genuine. For the second and every subsequent seizure, the fine will not exceed twice that amount. 19 CFR 133.27.

Bearing in mind the goals of preventing customer confusion and ensuring imported are products safe, CBP is authorized to take certain steps to ensure that infringing goods never reach the channels of commerce. An importer’s failure show the applicability of the foregoing exceptions within the 30 day detention period will trigger seizure and forfeiture proceedings. 19 CFR 133.23(f). Additionally, within the 30 day window, CBP may alert the U.S. owner of the presence of the gray goods to obtain assistance in determining whether the gray goods infringe upon the trademark or trade name of the U.S. owner. The U.S. owner may then procure a sample of the imported goods for a more detailed examination. 19 CFR 133.25. If CBP, aided by the efforts of the U.S. owner, finds that the gray goods infringe upon the trademark or trade name of the U.S. owner, it may seize the goods and commence with forfeiture proceedings. 19 CFR 133.23(f).

Still Hope

In the event of seizure and forfeiture, the importer retains its rights to contest the seizure and forfeiture, including the right to samples of seized merchandise and to petition Customs for relief from the forfeiture. Petitions for Relief and/or lawsuits in the federal district court’s can raise important issues and challenge the basis for seizure by, among other issues, contesting whether the goods are, in fact, gray market goods, whether they differ in quality, whether there is likelihood of confusion, the legitimacy of the source, the authority under which the trademark was applied, and others.

If your goods have been seized or forfeited, or if you are are importing goods bearing a trademark or trade name which is similar to one already registered in the U.S., it is in your best interest to obtain the advice of an attorney with experience in Customs laws and the laws surrounding intellectual property. As you can see, the process of clearing an item through the border can be a nuanced process in which time constraints and complex factual questions play a critical role.

Feel free to use this article to supplement your own knowledge, but do not let it serve as a substitute for legal counsel familiar with the various restrictions and exceptions of the law. Please do not hesitate to contact our office to assist you in taking the next step.

Getting back money seized by U.S. Customs when overseas

Posted by Jason P. Wapiennik on February 27, 2013

In the Legal Roadmap of a Customs Money Seizure series of articles we published, we explain how U.S. Customs may seize your cash (currency, whether U.S. or foreign), and any monetary instruments for failing to report transportation of more than $10,000 when entering or leaving the country, for bulk cash smuggling, and/or illegal currency structuring.

That means if you are flying into the U.S. or leaving the U.S. from an airport or land border crossing and you are transporting more than $10,000, do not file a report, have concealed they money, or have divided the cash with others, U.S. Customs (CBP) may seize your money on-site, at the airport or border crossing.

A cash seizure while traveling is problematic because you will not be at your normal residence (or in your own country) for a period of time and you might not receive the CAFRA notice of seizure. The legal problem is that, as we explained in responding to a cash seizure, you might not receive the notice of seizure (because it’s lost or there’s no one to sign for it), or receive it too late.

A cash seizure when traveling overseas also creates problems even if you do receive the notice, because without representation, you will have to burden your friends or relatives with the lengthy and detailed process for getting your seized currency back from U.S. Customs, or because you will have to get them involved in your private and financial affairs.

But after hiring Great Lakes Customs Law as your customers lawyer, we can obtain the CAFRA notice of seizure on your behalf, and usually get it issued more quickly than normal. If we represent you, we make the process as seamless and simple as possible for you. By hiring Great Lakes Customs Law immediately after seizure, U.S. Customs will send the CAFRA seizure notice direct to our offices.

We then prepare the necessary petition with your cooperation and file it with Customs for you without your direct involvement. If you choose, we can directly receive the money in the form of a paper check, or via direct deposit into a bank account. If desirable, this returned seized money can then be wiredto your overseas bank account, which is something that Customs will not do.

We at Great Lakes Customs Law can represent you while you are staying overseas and you will not have to bear the additional burden and expense of making a return trip to the United States to gather evidence, submit your petition, or receive your money.

If you have had cash seized by customs please read our Legal Roadmap of a Customs Money Seizure and click the button at the top of this page to us or e-mail us to schedule you free currency seizure consultation.

Calculation of Customs penalties for 1592 violations

Posted by Jason P. Wapiennik on February 25, 2013 with 1 Comment

In a previous article we provided a general overview of U.S. Customs and Border Protection penalties for violations of 19 USC § 1592, and therefore we now address the potential cost of a penalty in terms of dollar amounts and how those amounts are calculated.

In addition to the required payment of any unpaid or underpaid duties (i.e., taxes or tariffs) as a result of a violation of § 1592, a violator will also be responsible for a penalty, which serves the purpose of deterrence and, to a lesser extent, acts as compensation for the costs of enforcement. § 1592(c). Get ready for the bad news. The penalty amounts range depending, first and foremost, on the level of culpability, as follows:

Negligence: Twice (2x) the loss of duties, taxes, and fees or the domestic value of the goods, whichever is less; or, if the violation caused no duty loss then 20% of the dutiable value;
Gross Negligence: Four times (4x) the loss of duties, taxes, and fees or the domestic value of the goods, whichever is less; or, if the violation caused no duty loss then 40% of the dutiable value of the goods;
Fraud: An amount not greater than domestic value (1x) of the goods.

Customs can set the penalty anywhere it determines appropriate, but the penalty cannot exceed the maximum amount above for any degree of culpability.

Now get ready for the worse news: Customs can increase a penalty, so long as it does not exceed the legal maximum, when it finds the presence of aggravating factors, such as:

Obstructing an investigation or audit;
Withholding evidence;
Providing misleading information;
Prior violations;
Illegal transshipment such that the country of origin has been falsified;
Evidence of a motive to admit inadmissible merchandise;
Failure to comply with a demand for records or a summons;

But, there is some good news in the midst of all the bad. Even when aggravating factors are present, these penalties can be reduced by Customs when it finds the presence of mitigating factors, which include:

Contributory customs error, such as receiving misleading or wrong advice from Customs;
Cooperating with Customs in an extraordinary fashion, beyond that normally for a penalty action;
Taking immediate corrective actions, such as hiring an attorney, payment of the actual loss of duty prior the penalty notice, correction of organization or procedural defects, instituting a compliance program, etc.;
Inexperience in importing;
Prior good record of importations;
Inability to pay, as shown by tax return and financial statements;
Customs knew of violations, but failed to inform the violator without justification, and there is no criminal investigation.

These above-listed factors are identified by Customs as mitigating factors at the administrative level (that is, when Customs is deciding the penalty amount). Of course, if you disagree with the final decision on the penalty amount from Customs you will have the right to have a Court decide the matter. The court determines the penalties according to its own set of considerations (which will be the subject of future articles).

If you are issued a pre-penalty notice, penalty notice, or even if you are in the midst of a penalty case with Customs or before the Court of International Trade, you really should have the benefit of an attorney experienced in the customs laws. Beyond the mere arguing for and against the imposition of a penalty, or the presence and absence of aggravating and mitigating factors, there are technical arguments as well as large and well-developed body of case law about when penalties are allowed, and what amount is appropriate. You may have a complete defense to the imposition of penalties. If you are in such a situation, please make use of our experience and contact us today by calling (734) 855-4999 orby filling out our contact form.

Responding to a Customs currency seizure

Posted by Jason P. Wapiennik on December 26, 2012

If you have had cash seized by customs and are contemplating what to do next, please inform yourself on the process by reading this article and then contact our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. 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.

What documents should I have gotten and what will I get?

At the time of a currency seizure, Customs probably gave you a “Custody Receipt for Seized Property and Evidence” form (6051S), which will have some different numbers at the top, including an FPF No. so that your case can be tracked at Fines, Penalties and Forfeitures office (“FP&F”) of Customs. This form should show what exactly was seized, the name of the seizing officer, and Customs’ contact information — usually for the local FP&F branch of Customs. FP&F should then send by certified mail a formal written notice of seizure (“CAFRA Seizure Notice” or “CAFRA Notice”). You should get it within a few days as long as Customs has your correct address, which they may have asked for during your initial detention at the border or port. You will have 30 days from the date on the letter (not the date the letter is received) to respond.
We do not recommend contacting Customs by yourself until you have at least spoken to an attorney. Any statements you make to Customs, whether while you are being detained or by telephone, can be used against you. You may be panicked and say something that is misinterpreted by Customs as an admission of wrongdoing, or might make them suspect you are involved in something illegal. That will make it harder to get your money back. Therefore, we recommend contacting an attorney with experience in customs seizures immediately after receiving the CAFRA Notice. In any event, if you have not received this notice within 7 days of the seizure you should contact an attorney so they can request a copy of the notice of seizure for you, make sure that a timely response is made, or an extension of time to respond is requested and granted. This will help you make sure you preserve all your rights and options and improves your chances of successfully getting all or most of your money back.

CAFRA Notice of Seizure & Election of Proceedings

CAFRA stands for “Civil Asset Forfeiture Reform Act” and is, in our practice, the law that most of my client’s currency seizures fall under. After you’ve been detained and released, the CAFRA Notice you receive will have a basic explanation of the facts surrounding the seizure, including: the date and place of seizure, surrounding circumstances, and the facts Customs’ alleges are the basis for the seizure. The CAFRA Notice is a formal document, and should be treated and responded to as such. How and when you respond to the CAFRA Seizure Notice will determine the outcome of your currency seizure case!

What are my options for getting my seized currency back from customs?

The CAFRA Notice will also cite the applicable laws, including failure to report, bulk cash smuggling, or a currency structuring violation to evade the reporting requirement, among others. It will also list your options to respond to the CAFRA Notice, which include:

Filing a Petition for Remission or Mitigation (including the right to file a Supplemental Petition after decision on the first Petition)
Pay the Full, Appraised Domestic Value of Seized Property
File an Offer in Compromise
Abandon the Property
Institute Judicial Proceedings
Do Nothing

The details of these options are explained in the CAFRA Notice, and Customs will include and ask you to complete and return what is called an “Election of Proceedings” form. This form will require you to select one of the above options. The advice we give to our currency seizure clients varies with the circumstances of each seizure case. Do not decide how to respond to a CAFRA Notice without first consulting an attorney. There may be times when a Judicial Proceedings make more sense than filing a Petition, and a qualified attorney can help you weigh those options and make that decision. Any mistake or error in judgment you make can cost you dearly. The majority of the time, however, I do recommend my client’s to file a Petition for Remission or Mitigation as the best option. The Petition, when filed by our office, is a legal memorandum that contains detailed factual narrative with our client’s side of the story, what led to the seizure, a review of the relevant law, regulations and Custom’s own guidelines concerning the seizure. When the facts allow for it, my Petition will always include a strong argument for return of the money in full, or even when there is a valid basis for the currency seizure, a strong argument for the money to be returned upon payment of a fine in the smallest amount of money possible, rather than forfeiture of all your money.

How can I find out more or hire a law firm to help with my customs currency seizure?

If you have had cash seized by customs and are contemplating what to do next, please make use of the other information available on this website or call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. 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:

Is only cash currency subject to seizure by Customs?

Posted by Jason P. Wapiennik on August 27, 2012

Sometimes the failure to file the required report with Customs leading to a currency seizure arises because there is a mistaken assumption that only currency, or only U.S. currency, needs to be reported. This is wrong.

The reporting requirement applies to all monetary instruments. This is a legal term, defined in at least two places. First, 31 USC 5312 defines them, in relevant part, as:

(A) United States coins and currency;

(B) [ . . .] coins and currency of a foreign country, travelers’ checks, bearer negotiable instruments, bearer investment securities, bearer securities, stock on which title is passed on delivery, and similar material; and

The Federal Regulations, namely 31 CFR 1010.100(dd), provides a more detailed definition
as to what is included in the definition of monetary instrument, including:

(i) Currency;

(ii) Traveler’s checks in any form;

(iii) All negotiable instruments (including personal checks, business checks, official bank checks, cashier’s checks, third-party checks, promissory notes (as that term is defined in the Uniform Commercial Code), and money orders) that are either in bearer form, endorsed without restriction, made out to a fictitious payee (for the purposes of §1010.340), or otherwise in such form that title thereto passes upon delivery;

(iv) Incomplete instruments (including personal checks, business checks, official bank checks, cashier’s checks, third-party checks, promissory notes (as that term is defined in the Uniform Commercial Code), and money orders) signed but with the payee’s name omitted; and

(v) Securities or stock in bearer form or otherwise in such form that title thereto passes upon delivery.

(2) Monetary instruments do not include warehouse receipts or bills of lading.

It is noteworthy that the statute says it includes the foregoing, with the implication that just because a type of monetary instrument is not listed will not, by necessity, mean that is excluded from the reporting requirement.

If you have had cash seized by customs and are contemplating what to do next, please make use of the other information available on this website or call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. 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: