Seizures

U.S. Customs Seizures and Forfeitures are Unique

posted by Customs & International Trade Law Blog September 6, 2010 8 Comments

U.S. Customs and Border Protection (U.S. Customs or CBP) seizes and forfeits hundreds of millions of dollars of merchandise every year.  The IRS, DEA, U.S. Postal Service, and other Federal agencies also have the legal authority to seize and forfeit merchandise that were allegedly used illegally or were proceeds of alleged illegal activity, but U.S. Customs administrative and judicial forfeiture procedures are unique.  The answer is that seizures by U.S. Customs typically are not included within the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

The difference between a seizure under CAFRA’s  rules under 18 U.S.C. 983 – The General Rules for Civil Forfeitures, and the U.S. Customs rules under the Tariff Act of 1930 and the Supplemental Rules of Admiralty, is significant. These significant differences are often misunderstood, including by attorneys who do not regularly practice in seizure and forfeiture matters.   Under CAFRA, the U.S. Government must send an administrative seizure notice to affected persons within 60 days of the seizure, but for U.S. Customs cases, there is no such requirement. In fact, unfortunately, U.S. Customs often takes 90 to days to issue the Seizure Notice letter to affected parties such as the owner of the seized merchandise. Under CAFRA, a claimant has 35 days from the date of the notice of seizure to file its administrative claim or request judicial forfeiture.  For U.S. Customs cases, the claimant must file a Petition within 30 days of the seizure notice or, if seeking judicial review of the seizure, file a claim and cost bond equal to 10% of the value of the seized merchandise, up to a maximum of $5,000.  In CAFRA cases, no court bond is required.  Once in Federal Court, for CAFRA cases, the U.S. Government’s burden of proof is by the preponderance of the evidence.  In U.S. Customs cases, the Government has a lower burden of proof by establishing probable cause for the seizure, and then the burden shifts to the claimant to establish, by the preponderance of the evidence, that the property may not be forfeited. 

There are other numerous differences, a few of which are set forth in a comparison chart. One big difference is that in U.S. Customs cases, a claimant may file an administrative Petition with U.S. Customs seeking to get the seized merchandise released, and if unsuccessful, then go to Court.  In non-U.S. Customs cases, a claimant who chooses to file a Petition with the Federal agency and loses cannot then seek relief in Federal Court.  In general, filing a Petition with U.S. Customs or other Federal agency is the preferred alternative because it is often (1) faster, (2) less expensive, and (3) gives the greatest chance of success in getting the merchandise released from seizure.

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8 Comments

Jorge de Tuya September 10, 2010 at 2:52 pm

Great article, great chart.

In the Customs carve-out cases column you cite U.S. vs. $8,850. Would the appeals court reversal of the forfeiture, apply to the amount of time CBP takes to respond to a liquidated damages petition?

Congratulations on the blog,
Jorge

Reply
Victor Mendoza September 13, 2010 at 12:44 pm

Peter,
I had a shipment that was on transit to mexico via fedex and was seized by customs 10 days ago, this is a time critical product that i need to deliver to my client, they told me there is at least 30 days wait period to get a notice of this.

the product was lawfully requested by Anheuser bush in mexico and i have all the documentation to prove this, can i do anything to speed this up? can you recommend any action on this?

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Jose Parra November 3, 2010 at 2:47 am

I had CBP seized 27 6.2L diesel engines made by GM, most of them are pulled from military hmmvee’s, chevy trucks. These engines are sold through a goverment surplus and require a end user certificate.
CBP are trying to determine if they are a category VII from the mulitions. I have waited and had no response if they require a export license, the end user from DLA has a destination of mexico. Do engines that are made from GM for civilian use and military require a license to export?

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rhanify January 9, 2011 at 9:39 am

I do not understand why Customs would seize Marijauna seeds. This makes no sense at all. If Americans are able to grow their own marijuana for medical use, then why take their seeds and force them to give all that money to the drug cartels? I thought that was the entire intent of the drug war? To stop the importation of illegal drugs? well lets be smart about it customs alright? By seizing certain items that might or might not be illegal, I feel each item should be looked at on the basis whether it takes money away from the Drug Cartels. No money, nbo murders/killlings by the Cartels etc.

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Jeffrey Lopez February 16, 2012 at 11:52 am

We had a partial container of goods siezed by CBP. The goods are large Christmas decorations that are attached to city light poles. The Chinese factory mistakenly placed the UL logo and ETL logo on an informational sticker on the product. No UL or ETL tag was attached. We have requested Judicial Forfeiture to see if the product can be relabled or shipped back to China for repackaging. Have you seen these types of cases being successful?

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Anthony July 16, 2012 at 1:58 pm

I recently had medication that shipped from China and it was seized. I did have my Dr. office send a letter of medical necessity to the Postal Inspector but he then sent me the dreaded email stating he was going to seize my property. In his email he referenced ACT 21 USC 333 E(1), while I did research and read subsequent Acts, he advised me to obtain a lawyer to file. So here I am.

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Anthony July 16, 2012 at 1:59 pm

I recently had medication that shipped from China and it was seized. I did have my Dr. office send a letter of medical necessity to the Postal Inspector but he then sent me the dreaded email stating he was going to seize my property. In his email he referenced ACT 21 USC 333 E(1), while I did research and read subsequent Acts, he advised me to obtain a lawyer to file. So here I am.

Reply
VIK December 19, 2012 at 6:13 pm

I imported via fedex some chargers for I phone. I am told by fedex that customs have seized the goods and I need to get in touch with customs directly? When u call their direct number – there is a message and it requires me to wait 14- 18 days for seizure notice explaining the reason for seize and what options I have. I used fedex and paid heavly because these goods were time sensitive and were for orders for big retail cahin who wanted it before Xmas. Any suggestions??

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