Non-CAFRA Merchandise Forfeitures

The term “non-CAFRA” refers to forfeiture cases not governed by the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), which is codified, in part, in 18 U.S.C. § 983. When CAFRA was enacted, however, Congress expressly excluded the Customs laws codified in Title 19 of the United States Code. See 18 U.S.C. § 983(i)(2)(A).

What are non-CAFRA proceedings? Seizures under Title 19 of the United States Code are commonly referred to as the “Customs Carve-Out” provisions, as CAFRA does not apply to these seizures and forfeitures. In these cases, the “notice of seizure” letter from Customs will use the term “non-CAFRA.”

Under section 1595a of 19 U.S.C., “[m]erchandise which is introduced or attempted to be introduced into the United States… may be seized and forfeited if… its importation or entry is subject to any restriction or prohibition which is imposed by law relating to health, safety, or conservation and the merchandise is not in compliance with the applicable rule, regulation, or statute.” 19 U.S.C. § 1595a(c)(2)(A).

Where “merchandise may be seized and forfeited,” Customs may instead “deny entry and permit the merchandise to be [re]exported.” 19 C.F.R. § 151.16(j). Additionally, United States Customs and Border Protection (“CBP”) officers may identify the merchandise as not properly classified when it entered the United States.

Some types of contraband are tagged for further inspection by the Commercial Targeting and Analysis Center, the CBP Agriculture Specialists Enforcement Team, or an FDA Compliance Officer (“FDACO”).

Attorney for Non-CAFRA Seizures and Forfeitures

If CBP seized your property, merchandise, vehicle, or vessel, contact an experienced civil asset forfeiture attorney to discuss the case. In a non-CAFRA forfeiture case, we can assist you in filing a verified claim and posting the cost bond.

Filing the claim triggers a deadline for CBP to return the property or convince an Assistant United States Attorney (AUSA) to file a complaint in the appropriate district court.

If Customs fails to follow the rules, we can assist you in filing a complaint for the return of the property or a motion for a preliminary injunction to initiate judicial forfeiture proceedings.

Talk to an attorney before you consider pursuing any of the less desirable administrative remedies outlined in the CBP’s Non-CAFRA notice letter. Those administrative actions include filing a petition for remission or making an offer in compromise.

Act quickly to ensure your rights are protected by filing the claim correctly.

Call 813-250-0500.

Seizure of the Imported Merchandise by CBP

If CBP Officers inspect the shipment, they might discover contraband during the inspection.

CBP might then exercise its authority to seize and forfeit the property. In some cases, CBP uses a CBP Import Specialist to appraise the domestic value of the property.

CBP will investigate the importer of record to determine when and where the company was organized or incorporated, as well as whether any other issues have arisen on forms for Entry/Immediate Delivery (CBP Form 3461) filed on behalf of the company.

Notice of the Administrative Seizure of Property

In administrative proceedings, CBP’s Office of Fines, Penalties, and Forfeitures may send notices of seizure to the company and its named representative. The notice of seizure gives the following options:

1. file a remission petition;
2. submit an “offer in compromise” and include a check of the proposed settlement amount along with the offer;
3. abandon any interest in the property;
4. request court action and have his case referred to the U.S. Attorney for the institution of judicial forfeiture proceedings;
5. do nothing; or
6. offer to substitute the release of the seized property for payment.

The notice of seizure might allege that the property is subject to forfeiture to the United States under:

1. Title 19, United States Code, Sections 1595a(c)(l)(A) & (2)(A) if the product is not in compliance with Title 21, United States Code
2. Title 19, United States Code, Sections 1584(a);
3. Title 19, United States Code, Sections 1499(c)(4); and
4. Title 21 United States Code, Section 331(a), a health, safety, or conservation statute.

Additionally, the merchandise might be seized under Title 19, United States Code, Section 1595a(c)(1)(A) if the CBP agent has probable cause it was “smuggled or clandestinely imported or introduced” in violation of:

• Title 19, United States Code, Section 1481 (invoice);
• Title 19, United States Code, Section 1484 (entry of merchandise); or
• Title 19, United States Code, Section 1485 (declaration).

The cases often begin with Import Alerts, which direct federal officials to detain the product without physical examination.

How to Contest the Seizure in a Judicial Forfeiture Action

After the seizure, the company will receive a Notice of Seizure and Non-CAFRA Form. The notice explains that the company can contest the seizure in a judicial forfeiture action initiated by the government.

To do so, the Non-CAFRA Notice of Seizure instructs the company to “submit to CBP… a claim and cost bond in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is less.”

When a verified claim is filed on behalf of a company or LLC, the owner and member of the company, the owner of the property seized by the Government, and the Defendant In Rem must file a claim on behalf of the company that describes the seized property.

Upon filing a claim and bond, the Non-CAFRA case is “referred promptly to the appropriate U.S. Attorney for the institution of judicial proceedings in Federal court to forfeit the seized property in accordance with 19 U.S.C. § 1608 and 19 C.F.R. § 162.47.”

Upon receipt of the case, the U.S. Attorney “must either seek civil judicial forfeiture of the goods in federal court or decline to do so (in which case the goods are returned to the claimant).” LKQ Corp. v. United States, No. 18-CV-1562, 2019 U.S. Dist. LEXIS 122343, 2019 WL 3304708, at *2 (D.D.C. July 23, 2019) (citing 19 U.S.C. § 1608).

Problems with Filing a Petition for Remission

A petition for remission provides an expedited administrative procedure for contesting the forfeiture. The remission proceedings provide the Government and the claimant with a means to resolve a dispute informally, rather than through judicial forfeiture proceedings.

The petition for remission allows the claimant to explain why they believe they warrant relief from forfeiture. Testimony may be taken in connection with a remission petition. 19 U.S.C. § 1618.

The notice of seizure in these cases also states that if the claimant is dissatisfied with the petition decision or at any point before the forfeiture of the property, they may request a referral to the U.S. Attorney for judicial action by filing a claim and posting a cost bond.

In other words, even if a party initially files a petition for remission under 19 U.S.C. § 1618, the importer “at any time” can opt out of the administrative petition process and challenge the seizure in a judicial forfeiture proceeding instead by following these procedures. See id.

Be aware that the petition for remission can often delay case resolution for months. If you are contesting the legality of the taking, then you should immediately file the claim for court action instead of filing a petition.

Filing a Cost Bond Under 19 U.S.C. § 1608

Any person may file a claim under § 8.10(a) without posting a cash bond, except in non-CAFRA forfeitures under statutes listed in 18 U.S.C. 983(i).

In the nonjudicial civil proceedings against the vessel, however, the Claimant must file a verified claim and deliver a cost bond to fulfill the requirements of 19 U.S.C. § 1608 to request judicial action. 19 U.S. Code § 1608 provides that:

Any person claiming such vessel, vehicle, aircraft, merchandise, or baggage may at any time within twenty days from the date of the first publication of the notice of seizure file with the appropriate customs officer a claim stating his interest therein.

Upon the filing of such claim, and the giving of a bond to the United States in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is lower, but not less than $250, with sureties to be approved by such customs officer, conditioned that in case of condemnation of the articles so claimed the obligor shall pay all the costs and expenses of the proceedings to obtain such condemnation, such customs officer shall transmit such claim and bond, with a duplicate list and description of the articles seized, to the United States attorney for the district in which seizure was made, who shall proceed to a condemnation of the merchandise or other property in the manner prescribed by law.

The bond serves to “deter those claimants with frivolous claims” and “to cover the costs and expenses of the proceedings.” Arango v. U.S. Dep’t of the Treasury, 115 F.3d 922, 925 (11th Cir. 1997). “If the outcome of the judicial proceeding is in the claimant’s favor, the bond is returned.” Id. (citation omitted).

To ensure that the bond requirement does not deny indigent claimants an opportunity to contest the forfeiture in court, CBP provides by regulation that the bond requirement shall be waived “upon satisfactory proof of financial inability to post the bond.” 19 C.F.R. § 162.47(e).

The notice of seizure explains that if the claimant cannot afford to post the bond, he should contact the Fines, Penalties and Forfeitures Officer for CBP to determine the claimant’s financial ability to pay:

“If a determination of inability to pay is made, the cost of the bond may be waived in its entirety.”

Sample Complaint for Return of Property

IN THE U.S. DISTRICT COURT FOR THE _____

DISTRICT OF _____

______ DIVISION

______, INDIVIDUALLY AND ON BEHALF OF _____, LLC,                           Case No.: ______________

Plaintiff,

v.

U.S. CUSTOMS AND BORDER PROTECTION;

UNITED STATES OF AMERICA;

Defendants.

____________________________________________/

COMPLAINT FOR RETURN OF PROPERTY AND ATTORNEY FEES AND COSTS

Introduction

1. ______, individually and on behalf of _____, LLC (hereinafter “Plaintiff”), through counsel, and files this complaint for return of property under Federal Rule of Criminal Procedure 41(g) and 19 U.S.C. § 1608.
2. Filing this complaint became necessary because on _______, U.S. Customs and Border Protection (CBP) seized the _______ (hereinafter “seized property” or “property”) belonging to _____ and ______, LLC, at the port _______.
3. _____ (____) days later, the agency still holds the seized property, ostensibly for civil forfeiture, but has yet to bring the case before the court.
4. This Complaint demands the immediate return of the seized property.
5. Since no forfeiture proceeding has been initiated, the Petitioner files this motion asserting a judicial claim against the government seeking the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure, which provides that a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return” and contemplates that the court may order such return with “reasonable conditions to protect access to the property and its use in later proceedings,” Fed. R. Crim. P. 41(g).
6. A claimant may move under Rule 41(g) for the return of property to force the government to act expeditiously, which a court can properly construe as a civil complaint. Serrano v. Customs & Border Patrol, U.S. Customs & Border Prot., 975 F.3d 488, 499 (5th Cir. 2020)
7. CBP lacked a lawful basis to seize the property.
8. The property is not subject to forfeiture.
9. The prolonged seizure of the property, without judicial process, violates the Fourth and Fifth Amendments to the U.S. Constitution.
10. To vindicate those constitutional rights, this Complaint seeks the return of his seized property.

Jurisdiction

11. This Court has jurisdiction over this action under 28 U.S.C. § 1331, as Plaintiff’s claims arise under federal law.
12. Plaintiff brings this claim for return of seized property under Federal Rule of Criminal Procedure 41(g)

Venue

13. Venue is proper in the United States District Court for the _____ District of Florida under 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1)(B), as well as Federal Rule of Criminal Procedure 41(g), because the seizure of the property occurred in ______, ____, located in the ______ Division, _____ District of ______.

The Plaintiff 

14. The Plaintiff is ________, Individually and on Behalf of _______, LLC.
15. _______ is an adult citizen of the United States and a resident of ______, __.
16. Plaintiff _______ is the president of _______, a ________ Limited Liability Company, in ____, __, and authorized to act on behalf of the company.
17. Plaintiff ______, on behalf of _______, LLC, is the owner of the seized property.

Defendant U.S. Customs and Border Protection

18. Defendant U.S. Customs and Border Protection (“CBP”) is a federal agency charged with patrolling the nation’s international borders.
19. Every day, CBP processes over one million international travelers at its various ports of entry.
20. Every year, CBP seizes property owned by U.S. citizens.
21. CBP follows a policy or practice of retaining seized property without promptly referring the case to the USAO after a claim is filed and bond is posted.
22. CBP followed that policy or practice in the instant case, as it seized Plaintiff’s property on ____ and held it for ____ days without ever filing a complaint.
23. Even after the claim was filed and bond was posted on ______, ____ days have passed without any complaint being filed by the government for court action.

Defendant United States of America

24. Defendant United States of America is the national federal government established by the U.S. Constitution. As such, it is subject to limitations imposed by the Constitution— including, as relevant here, the Fourth and Fifth Amendments.
25. The constitutional violations at issue involve the actions of federal agencies and employees and are therefore ultimately chargeable to the federal government itself.

Factual Allegations

26. On ______, U.S. Customs and Border Protection (CBP) seized the ___________ belonging to _______ and _____ at the port in ______, __.
27. In a letter dated ______, CBP issued a Notice of Seizure and Information to Claimants Non-CAFRA Form (hereinafter “Notice” attached as Exhibit “A”) to Petitioner alleging the property violated the following provisions:
    1. ______;
    2. ________.
28. The notice provided the Petitioner with an option to file “a claim stating his interest” in the seized property, at which point the “customs officer shall transmit such claim . . . to the United States attorney for the district in which seizure was made, who shall proceed 5 to a condemnation . . . in the manner prescribed by law.” 19 U.S.C. § 1608; see also 19 C.F.R. § 162.47.
29. The notice stated that, if Plaintiff wished to have the case referred to a U.S. Attorney for court action, he was required to post a bond equal to ten percent of the value of the seized property.
30. The notice asserts the appraised domestic value of the seized property is $______.
31. The notice assigned the proceeding case number _______.
32. The notice identified _________, CBP’s Fines, Penalties, and Forfeiture Officer as the point of contact at CBP for the forfeiture proceeding.
33. On _______, Petitioner responded by sending a claim to CBP and enclosing a check for $____ to satisfy the requirement to post a bond equal to ten percent of the value of the property.
34. The claim and bond were received by CBP on ______.
35. Filing a claim forces the case into a district court where the Government must establish probable cause for the forfeiture and the importer is permitted to present arguments that the seizure was improper. See United States v. 60 Auto. Grilles, 799 Fed. Appx. 693, 694- 695. 35.
36. When the claim and bond is filed, 19 U.S. Code § 1604 imposes a duty on the AUSA to “immediately… inquire into the facts of cases reported to him by customs officers…” and “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay….”
37. The undersigned attorney contacted …., who indicated the case had not been referred to the United States Attorney’s Office.
38. From _____ to _____, more than ___ emails were sent by the undersigned attorney to CBP requesting the case be referred to the AUSA without further delay.
39. As of the date of this filing, the United States has not filed a forfeiture action against Plaintiff’s seized property.
40. On information and belief, the seized property is currently held at a seizure lot maintained by CBP.
41. CBP’s continued seizure of Plaintiff’s property, constitutes an ongoing injury to Plaintiff.
42. Throughout the time the seized property has been in CBP’s custody, Plaintiff has been unable to use the property.
43. Plaintiff’s seized property had depreciated in value while sitting unused in CBP’s impound lot.
44. While Plaintiff does not have access to the seized property, Plaintiff alleges on information and belief that the seized property has suffered damage while in Defendants’ custody.
45. Plaintiff has incurred attorney fees and costs in bringing this action required by the inaction of CBP and the government.

Claim Count I: Violations of the Fourth and Fifth Amendments

46. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in ¶¶ 1 through __ above.
47. Plaintiff brings this claim for return of seized property against Defendants CBP and United States of America under Federal Rule of Criminal Procedure 41(g).
48. Plaintiff is entitled to the immediate return of the vehicle and the posted bond.
49. Plaintiff’s property must be returned because the ongoing seizure of Plaintiff’s property without a post-seizure hearing violates the Fourth and Fifth Amendments.
50. A due process violation occurred because CBP failed to refer the matter for the commencement of judicial forfeiture proceedings in a timely manner, and the United States Attorney failed to file a complaint for forfeiture in a timely manner.
51. No probable cause exists to show the seized property was involved in the violations contained in the notice of seizure including _______.
52. A party who timely files a claim and elects a judicial forfeiture proceeding must normally post a bond to cover “the costs and expenses of the proceedings,” 19 U.S.C. 1608. Upon the filing of a claim and any required bond invoking judicial forfeiture, CBP must “report promptly such seizure…to the United States attorney for the district…in which such seizure was made.” 19 U.S.C. 1603(b); see 19 U.S.C. 1608. The Attorney General must then “immediately” investigate the matter and, if he finds it “probable” that “forfeiture has been incurred by reason of [a] violation,” must “forthwith” and “without delay” initiate forfeiture proceedings in federal court unless he “decides that such proceedings cannot probably be sustained or that the ends of public justice do not require that they” be pursued. 19 U.S.C. 1604.
53. Petitioner challenges the validity of the initial seizure and the continued detention of the seized property.
54. Additionally, Petitioner challenges the delay in CBP referring the case for the initiation of judicial forfeiture proceedings by an Assistant United States Attorney which constitutes a due process violation.

Request for Relief

WHEREFORE, Plaintiff respectfully requests that this Court:

1. Order Defendants CBP and the United States of America to immediately return Plaintiff’s seized property under Federal Rule of Criminal Procedure 41(g).
2. Enter an award against all Defendants allowing Plaintiff to recover his attorney’s fees, costs, and expenses in this action under 28 U.S.C. § 2412.
3. Award any further equitable or legal relief the Court may deem just and proper.

Dated:______

Respectfully Submitted,

__________

CERTIFICATE OF SERVICE

I hereby certify that, on this ____st day of ______, 202_, I electronically filed the Complaint with the Clerk of Court using the CM/ECF system. I further certify that I caused a copy of the foregoing Complaint to be sent by certified mail to the following addresses:

Commissioner Rodney S. Scott
U.S. Customs and Border Protection
1300 Pennsylvania Ave. NW
Washington, DC 20229

U.S. Customs and Border Protection
Field Office
________

Civil Process Clerk
Office of the United States Attorney
For the ____ District of _____
____________________

I further certify that I caused a copy of the foregoing Complaint to be sent by process server to the following address: ______, Fines, Penalties and Forfeiture Paralegal Specialist. _______________.

This article was last updated on Wednesday, July 3, 2025.