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Sat, 12 May 2018
CBP Sued For Seizing $41,000 From Airline Passenger, Then Refusing To Give It Back Unless She Promised Not To Sue
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Another case of asset forfeiture is the subject of a federal lawsuit. Like many others, the plaintiff has obtained the assistance of the Institute for Justice in battling the government for the return of seized assets. In this case, a US citizen saw $41,000 of hers disappear into the government's custody when she attempted to take it to her hometown in Nigeria to start a medical clinic.After detaining her for hours at the airport, the CBP decided it could keep the money Anthonie Nwaorie lawfully earned.CBP took the money because Nwaorie, a U.S. citizen since 1994 who lives in Katy, had not declared that she was taking more than $10,000 out of the country — a technical requirement that her lawyers say is not well-publicized or easy to comply with. If this was the only problem, it was "solved" by Customs officials detaining Nwaorie long enough for her to miss her flight. No money left the country, undeclared or not. If this was criminal act in need of punishment, the CBP could have turned this over to prosecutors. But none of this happened. The CBP simply took the money and ghosted Nwaorie. From the lawsuit [PDF]:After receiving a CAFRA [Civil Asset Forfeiture Reform Act] seizure notice from CBP in November 2017, Anthonia timely submitted a claim under CAFRA on December 12, 2017, requesting that CBP refer the case to the U.S. Attorney’s Office (USAO) for court action, thus electing a judicial forfeiture proceeding rather than an administrative forfeiture proceeding. The USAO declined to pursue forfeiture of the seized cash and the government failed to timely file a forfeiture complaint within the 90-day period required under CAFRA. At this point, CAFRA automatically required that CBP “promptly release” the seized property. The money was never released, despite the CBP's clear legal obligation. Instead, the agency attempted to force her into granting it a permanent pass from civil liability in exchange for her cash it had never bothered processing.[R]ather than promptly releasing the seized cash to Anthonia as required under federal law, CBP instead sent Anthonia a letter dated April 4, 2018, conditioning the return of the seized cash on Anthonia signing a Hold Harmless Agreement that waives her constitutional and statutory rights, and requires her to accept new legal liabilities, such as indemnifying the government for any claims brought by others related to the seized property. The letter stated that if Anthonia did not sign the Hold Harmless Agreement within 30 days from the date of the letter, “administrative forfeiture proceedings will be initiated.” On the other hand, if she signed the Hold Harmless Agreement, the letter said she would be mailed a “refund check” for the full amount of the seized cash in 8 to 10 weeks. This is the government holding someone else's money hostage -- nothing more. The CBP has a legal obligation to return property it isn't going to process through the courts. There's nothing in the law demanding citizens waive a bunch of their rights just to reclaim what the government has taken from them.This will be a tough case for the government to defend. The CBP accused Nwaorie of breaking federal law, but never followed through on that claim. It kept her money but never bothered processing it as an administrative or judicial forfeiture. It apparently assumed she would never challenge the seizure. When she did, it told her it would keep the money unless she agreed in writing to never pursue the government for its bogus and badly-handled seizure.As for the law the CBP claimed she had broken -- not declaring funds over $10,000 when leaving the country -- Nwaorie points out the government has done nothing to make travelers aware of this requirement. She states she's aware this is required when entering the country (declarations of cash, etc. being brought into the country) but had no idea the government demands the same declaration when exiting. As she points out in her lawsuit, multiple government travel tip website pages have nothing at all to say about cash reporting requirements.Information about the currency reporting requirement for travelers departing the United States is not found in lists of tips for international travelers on government websites such as: CBP’s “U.S. Traveler’s Top Ten Travel Tips” webpage, https://www.cbp.gov/travel/us-citizens/know-before-you-go/us-travelers-top-ten-travel-tips; the list of “Documents You Will Need” (or elsewhere) on CBP’s “Before Your Trip” webpage, https://www.cbp.gov/travel/us-citizens/know-before-you-go/your-trip; the list of required documents on the State Department’s “Traveler’s Checklist” webpage: https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelerschecklist.html; TSA’s “Top Travel Tips,” https://www.tsa.gov/travel/travel-tips/; TSA’s “Travel Checklist,” https://www.tsa.gov/travel/travel-tips/travel-checklist; or TSA’s “FAQ” for travelers, https://www.tsa.gov/travel/frequently-asked-questions. On top of that, the reporting must be done at the time of the flight, but the office where the reporting is handled is not even located on the airport's property, much less in the terminal. And then there's the petty grubbiness of the CBP officers' actions -- like their decision to cut open her bag to access the cash, rather than use the key she provided them, and threatening to harass and detain her in the future any time she decides to board an international flight.There's no questioning what the law says the government must do in cases like this. Her lawsuit quotes the relevant text from CAFRA:Under CAFRA, if the government fails to file a complaint “before the time for filing a complaint has expired” (and does not obtain a criminal indictment containing an allegation that the property was subject to forfeiture), “the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.” Here, the CBP shrugged off its statutory obligations and compounded it by tying the money's return to a promise not to sue. That thuggish plan has backfired.
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posted at: 12:00am on 12-May-2018
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