What is a petition for mitigation or remission?
A petition for mitigation or remission (i.e., a petition for relief from some decision) is one way of administratively challenging certain decisions made by U.S. Customs & Border Protection when Customs seizes merchandise and or imposes a penalty, or liquidated damages. A petition — sometimes called a petition for relief — is different from a protest, which is the other primary means of challenging a Customs decision. A protest can be filed against other customs decisions like the classification or liquidation of merchandise, the exclusion of merchandise, and a disallowance of a drawback claim, among a few others.
The legal authority for filing a petition is 19 USC 1618. This section states that whenever “anyone who has incurred a fine or penalty [files] a petition for the remission or mitigation of such fine, penalty, or forfeiture, [CBP can reduce the fine, forfeiture, or penalty if they find] that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture,” then CBP “may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto.”
There are additional regulations governing the petition process accessible in Part 171 of Title 19 of the Code of Federal Regulations. This gives CBP broad authority to reduce a penalty or a forfeiture.
How does CBP decide to offer mitigation or remission?
CBP decides to offer mitigation or remission based on its own internal policies, which are called Mitigation Guidelines. Mitigation guidelines are often published by Customs either in their informed compliance publications or as part of Customs Bulletin & Decisions, a weekly publication. The mitigation guidelines do not contain guidelines for every situation (for example, for export violations, for wood packaging material penalties, or for bulk cash smuggling or structuring seizures), so some additional resources are necessary which are not easily accessible to the general public.
After a petition is filed with U.S. Customs & Border Protection it can be approved, denied, or you might get a request for further information. Requests for information after a petition is submitted is common in certain cases, like cash seizure cases, but not in others.
What happens after I file a petition with CBP?
After a petition is filed, CBP will issue a written decision. The decision might give partial relief – for example, it might return all or part of seized property, or offer to reduce (mitigate) a penalty or liquidated damages.
It could also be an outright denial, meaning that the original notice of penalty, seizure or liquidated damages, is left unchanged.
The decision will probably explain what your options are. Sometimes the explanation is tilted in favor of Customs, or not completely accurate. For instance, it may tell you that you can only file a supplemental petition if there is new evidence.
Decisions are usually effective for 30 days or 60 days, depending on what the decision actually says. If there is no effective date in the letter, then, by default, it’s effective for 60 days.
What is a supplemental petition?
If a petitioner (the person filing the petition) is not happy with a decision on a petition, the petitioner has the right to file a “Supplemental Petition.” This can be thought of as an appeal, or a second opportunity, to get a better outcome in your case.
A supplemental petition is submitted to the same Office at CBP where the original petition was submitted. That same Office has the ability to review the supplemental petition and decide to grant further relief.
If no further relief is given, or if more relief is given but the petitioner is still not satisfied, the supplemental petition is forwarded to Headquarters (if the decision was made by the FP&F Officer at a Port), or if already at Headquarters, it will be forwarded to the Chief of the Penalties Branch, or if that is the person who made the original decision, the supplemental petition goes to the Director of Border Security and Trade Compliance Division, both at CBP Headquarters.
Do I have other options than a petition or a supplemental petition?
There are usually additional options for relief from a seizure, penalty, or liquidate damages. A person may have options like filing a claim or making an offer in compromise. The claim and offer in compromise options are not always available, because certain time limits apply. Be careful in choose the way forward because consideration must be given to whether it would be better to file a claim or make an offer in compromise.
Do I need a lawyer to file a petition for mitigation?
You don’t a lawyer to file a petition for mitigation, but it’d be foolish not to. Just as you’d be foolish to try to handle a divorce yourself and just show up to court in a suit, asking and trusting the judge to be fair and divide you and your wife’s property equally; or, to decide to grab a pair of pliers, steel up your nerves, and pull out a loose or painful tooth yourself, without going to the dentist.
In each of those cases you’ll get a far better result if you hire an experienced professional, and so it is the same with preparing and filing a petition for mitigation or remission. If you have received a notice of seizure, a notice of penalty, or a notice of liquidated damages, contact Great Lakes Customs Law today.