What are CBP currency seizures?
U.S. Customs and Border Protection (“CBP” or “Customs”) enforces regulations regarding the physical transportation of money outside of the United States. If a person, or persons traveling together, are transporting more than $10,000 in currency or negotiable monetary instruments, they must fill out a FinCEN 105 form, titled “Report of International Transportation of Currency and Monetary Instruments.”
If the FinCEN 105 form is not completed as required, and CBP subsequently discovers the money, then the cash may be seized in whole or in part by CBP and subject to forfeiture proceedings. Even if a portion of the funds are reported, all the funds involved in the violation are subject to seizure.
What should you expect after a cash seizure occurs?
Customs will send to you by mail a Notice of Seizure and Information to Claimants form. The Notice will contain a case number, which you should reference in your future communications with Customs regarding this matter. It is important that you note the date at the top of the letter from CBP. If you would like to file a petition for the return of the seized funds, the petition is generally due within 30 days of the date on the letter, unless an extension has been obtained from CBP prior to the deadline.
Generally, CBP will also send an Election of Proceedings form and Seized Asset Claim form with the Notice of Seizure and Information to Claimants form. The Election of Proceedings form presents additional options regarding the cash seizure besides the filing of a petition; the optimal choice will depend on the circumstances of your particular matter.
What is considered “currency or a negotiable instrument” that must be reported on a FinCEN 105 form?
Customs defines this term to include the following:
- Coins or currency from the U.S. and/or other countries, including gold coins (gold coins, medals, and bullion are not subject to duty, but must be declared to a CBP officer);
- Travelers checks;
- Checks, promissory notes, or money orders that can be cashed by the bearer (including checks or money orders made out to someone other than the bearer that are endorsed without restriction, or checks, money orders, or promissory notes which have been signed and the to: field is left blank);
- Securities or stocks in bearer form.
What should be included in a petition for the return of seized cash?
One of the options available in cash seizure matters is the filing of a petition for the return of a portion of the seized funds (which may or may not be appropriate in your particular case). The person seeking the return of the seized funds must provide credible evidence that the money had both a legitimate source and intended use, with no nexus to illegal activity. The source of the funds can be demonstrated through documents, including tax returns, bank statements, affidavits, pay stubs, deeds, etc. The petition should also describe and document any mitigating factors present (further information below).
If you file a petition for remission of the seized currency, how much could you receive back from Customs?
When a petition is timely filed for the return of seized currency, a CBP Fines, Penalties & Forfeitures (“FP&F”) officer may grant relief if he or she concludes that the funds have a legitimate source and intended use. As conditions of the remission, the claimant must pay the costs of seizure and storage (absent extraordinary circumstances), as well as pay any remission amount, execute a hold harmless agreement, and comply with any terms and conditions that are deemed appropriate. The CMIR Remission & Mitigation Table describes the guidelines for the remission amount to be retained by Customs in these cases.
FP&F officers can also adjust the remission amount if any mitigating factors are present. However, the petition can also be denied and administrative forfeiture proceedings can be initiated on the seized funds if: (1) the totality of evidence available to Customs establishes a nexus to illegal activity, or (2) the petitioner fails to establish that the monetary instruments have a legitimate source or intended use.
Mitigating factors include:
- Language barrier, physical ailment, or mental condition which would inhibit, rather than totally bar, the violator’s understanding of the currency declaration requirement;
- Inexperience in international travel (not applicable to cases where monetary instruments are mailed or shipped, rather than carried during travel);
- Cooperation with Customs officers after discovery of the violation beyond that which normally would be expected of any violator seeking the return of the unreported funds.
Each one of these factors can reduce the amount retained by Customs up to 10% for each factor present. The amount retained by Customs will not be reduced more than 30% in total as a result of the presence of these three mitigating factors.
Extraordinary mitigating factors include:
- Conduct as a result of clearly established contributory Customs error;
- After being cleared through Customs, the violator then voluntarily returns to the inspection area and reports the currency to Customs;
- Other special humanitarian justification.
The presence of these extraordinary factors may allow for the reduction of all, or a significant portion, of the standard amount retained by Customs.
Please note that these guidelines are guidance for the internal operations of Customs, and do not create any private rights of action.
Please contact us should you have any questions regarding Customs cash seizure matters or procedures.
All opinions stated on this website are my own. No statements are intended to create an attorney-client relationship or to be construed as legal advice.