Petition for Remission.

A Petition for Remission is a request for the discretionary return of seized property that does not contest the validity of the government’s right to forfeit the property. This differs from a claim, which explicitly challenges the forfeiture and necessitates the referral of the matter to civil or criminal judicial proceedings. Under 28 C.F.R. § 9.5(a)(4), the ruling official shall presume a valid forfeiture and shall not consider whether the evidence is sufficient to support the forfeiture.

As a result, a Petition for Remission is not the correct remedy if the property owner wants to contest the evidence that justifies the seizure or challenges the government officials’ actions leading to the forfeiture. These types of substantive arguments must be raised in a claim; once the window to file a claim closes, the only remaining option, if any, is to file a Petition for Remission.

Although a remission petition cannot be used to contest the government’s authority to forfeit, it can be used to request the return of:

• The property that is the subject of the forfeiture,
• The proceeds from the sale of the property, or
• The appraised value of the property if it has already been sold.

For administrative forfeitures, the ruling official for the seizing agency decides the petition; for judicial forfeitures, the Chief of the Asset Forfeiture and Money Laundering Section rules on it. If the agency decides to grant remission, it can do so in full or in part. The decision is made after considering the circumstances surrounding the seizure and the petitioner’s reasons for requesting the property’s return. This process does not require the government to prove it has the legal right to retain the property; instead, it focuses on whether returning the property (or the proceeds) is appropriate under the circumstances.

Which filing preserves a forfeiture challenge under DOJ or CBP deadlines?

With the DOJ and CBP, if you respond within the designated timeframe, you generally may file both a claim and a petition for remission or mitigation. However, based on the specific timeframes given for each type of filing, there is a chance that the time for filing a claim will have expired by the time you respond, leaving filing a petition for remission as your only available option. For example, DOJ seizure notices generally afford thirty days for remission petitions after receipt, but thirty-five days for claims after the date the letter is mailed. This can make a difference of several days (or more) depending on when the notice was actually sent.

Pursuant to 18 U.S.C. § 983(a)(2)(B), DOJ seizure notices specify the deadline for filing a claim. When you file a claim, you explicitly contest the forfeiture of your property. This action halts all administrative proceedings and compels the DOJ to decide whether to drop its forfeiture case or refer the matter to civil or criminal judicial proceedings.

A claim does not itself commence judicial proceedings; it suspends the nonjudicial forfeiture proceeding and triggers the government's duty to file a complaint or return the property. If the government files a judicial forfeiture action, you can present the evidence supporting your challenge in court. Once the referral process has begun, the government must follow the appropriate procedures to advance the case in court. If it fails to do so, it may be required to release your property.

In contrast, filing a petition for remission has no effect on the administrative proceedings in question. This is because a remission petition acknowledges the government’s authority to seize and/or forfeit the property. Instead, a remission petition focuses on the owners’ entitled or equitable interest in the property, asking that the property be returned on an equitable basis or as a “matter of grace.” If you are not able to file a claim, your only chance of seeking the return of your property is to file a petition for remission.

What must an owner prove before an agency can grant remission?

There are two basic requirements before an agency can grant remission. First, under 28 C.F.R. § 9.5(a)(1), “The ruling official shall not grant remission of a forfeiture unless the petitioner establishes that the petitioner has a valid, good faith, and legally cognizable interest in the seized property as owner or lienholder as defined in this part and is an innocent owner within the meaning of 18 U.S.C. 983(d)(2)(A) or 983(d)(3)(A).” As a result, if a petitioner lacks a valid, good-faith, legally cognizable interest as an owner or lienholder, or is not an innocent owner, the agency may deny their petition for remission.

As with filing a claim, the petitioner bears the burden of supporting a petition for remission. Along with remission, this is also true when the petition asks for the mitigation, restoration, or reconsideration of forfeiture. Even if the petitioner is not liable, the government is not necessarily obligated to release the property in question. There are many other considerations that the agency must take into account before it decides whether or not to grant the relief requested in the petition for remission.

As with a claim, the agency decides if it needs more information in order to make a decision. However, it will generally afford the petitioner an opportunity to provide the additional information that it requires. If the petitioner refuses to cooperate with the agency’s efforts, the agency may deny the petition for remission. As explained in 28 C.F.R. § 9.5(a)(3), failure to provide information or documents and to submit to interviews, as requested, may result in a denial of the petition.

Furthermore, the agency also imputes to the petitioner the knowledge and responsibilities of the organization’s employees. The agency also imputes the actions of these individuals when making the decision of whether or not to grant remission of the seized property. If you filed a petition for remission on behalf of your business, make sure that it contains only those documents and statements for which you have the authority to speak.

One thing worth knowing before you speak to anyone in custody: those calls are recorded, and prosecutors listen to them. Spodek Law Group tells every client family the same thing.

When can mitigation or reconsideration rescue a denied remission petition?

If your petition for remission is denied, there are two potential options to seek additional relief from the government: mitigation and reconsideration.

Mitigation

Mitigation is an option when the government declines to return property on a remission basis. A request for mitigation may be appropriate in several scenarios:

• Extreme hardship; or,
• When an innocent owner status is not met, but the government should return the property based on other mitigating factors.

In addition to granting remission, mitigation allows the government to provide incomplete relief when complete relief is not warranted. With mitigation, the agency will consider factors like minimal violations, your level of cooperation with authorities, and your lack of criminal history. Mitigation is essentially a request for relief based on equitable grounds, where you argue that the government should return the property or some of the value of the property.

For example, under 19 U.S.C. § 1618, the Secretary of the Treasury may remit or mitigate a fine, penalty, or forfeiture upon finding mitigating circumstances that justify relief.

Reconsideration

If your petition for remission is denied, you have one opportunity to ask the government to reconsider its decision. In your request for reconsideration, you should explain why the government should reconsider its decision and how its decision does not address the issues you raised in your petition. If the government denies the request for reconsideration, there are no more administrative options to request the return of your property.

How does the forfeiture type change who must go to court?

Federal forfeiture proceedings fall into one of three categories: administrative, civil judicial, or criminal judicial. According to statistics from the U.S. Department of Justice, the majority of federal forfeitures are administrative in nature. Most administrative forfeitures proceed uncontested, and as a result, do not require judicial proceedings.

Administrative forfeiture is a procedure whereby no judicial intervention is required unless an interested party files a timely claim contesting the forfeiture. Administrative forfeiture can proceed by default if no interested party files a timely claim. When an interested party challenges the forfeiture with a timely claim, the administrative proceeding is suspended, and the agency in charge must decide whether to pursue judicial proceedings.

Civil judicial forfeiture is an in-rem action. This means that civil judicial forfeiture proceedings target the property itself, not the property owner. While criminal forfeiture typically requires that the owner of the property be criminally charged and/or convicted of a crime, criminal forfeiture is not a necessary prerequisite in most civil forfeiture cases. When the government files a civil judicial forfeiture action, a person wishing to contest the forfeiture must respond in court within the time frame provided by the government’s notice. Once a judicial case has been filed, a civil court will judge the forfeiture case, and civil judicial forfeiture can be contested as much as administrative forfeiture can.

For owners in federal forfeiture cases, it is essential to understand the differences between the three types of forfeitures. A federal lawyer can assess the specifics of your case and advise you on the best options for contesting the forfeiture of your property. Depending on whether the government has pursued an administrative, civil, or criminal forfeiture proceeding, your strategies for challenging the seizure of your property will differ.

Forfeiture cases are complex, and the stakes are high. If the government has seized your property, you need to take action quickly. Whether you have time to file a claim, have the grounds to contest the seizure, or need to seek remission, an experienced attorney can help you make the right decisions.

If You Want Someone to Look at Your Case

Reading about a charge is not the same as having someone read your file. Spodek Law Group keeps an attorney on call around the clock, and the first consultation costs nothing and runs as long as your questions do. The number is 888 348 8028.