Customs Carve-Out to CAFRA

CAFRA did not change the procedures for all types of forfeiture cases. Specifically, Section 983(i) exempts certain categories of forfeiture cases from any of the CAFRA reforms in 18 U.S.C. 983, including Section 983(a)(1) and (2). Cases brought under the following provisions are exempt:

1. the Tariff Act of 1930 or any other provision of law codified in Title 19;
2. the Internal Revenue Code of 19862 ;
3. the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.);
4. the Trading with the Enemy Act (50 U.S.C. § 1 et seq.) or
5. the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. § 1701 et seq.); Section 1 of Title IV of the Act of June 15, 1917 (22 U.S.C. § 401).

Section 983(1) carve-out only applies to the provisions of Section 983. The provisions in Section 985 (real property) or Section 2465(b) (attorney fee and interest provisions) apply to all civil forfeiture actions.

Consequences of the Carve-Out

Forfeiture cases falling under the § 983(i) carve-out are governed by older, sometimes less stringent, procedures and rules (such as the Supplemental Rules for Certain Admiralty and Maritime Claims). Implications for cases brought under exempt provisions include:

• Fewer Procedural Protections:
  • Agencies like U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) follow the older procedures, which typically involve stricter deadlines and different notice requirements than those mandated by CAFRA.
• No “Innocent Owner” Defense (Historically):
  • A major consequence is the historical lack of a statutory “innocent owner” defense for some customs-related forfeitures. The robust innocent owner defense created by CAFRA (which places the burden of proof on the claimant to show they were an innocent owner by a preponderance of the evidence) does not automatically apply to Title 19 forfeitures.
• Strict Liability:
  • Forfeitures under customs laws, such as those for failure to declare currency or goods (19 U.S.C. § 1497), may operate under a strict liability standard, meaning the government doesn’t need to prove the owner’s intent to violate the law. Instead, the government might only need to prove the failure to declare the item is sufficient for forfeiture.