Using Civil Forfeiture, CBP Treats Innocent People Worse Than Criminals
On October 24, 2017, Lejla Kazazi drove her husband, Rustem, to the airport for a six-month trip to their native Albania. The Kazazis and their children immigrated to the United States in 2005 and became U.S. citizens in 2010. After many years away, Rustem was returning to Albania to fix up the family’s home, and potentially buy a retirement property for him and Lejla to enjoy.
Since arriving in the U.S., Lejla, Rustem, and their son, Erald, worked a series of menial jobs to save up enough money to cover repairs for their former home and travel expenses for Rustem over a six-month stay abroad. As he left for his trip, Rustem brought 12 years of family savings—a total of $58,100 in cash—carried with him in three bundles stowed in his bag. Cash was ideal because contractors and property owners in Albania prefer to be paid in Euros or U.S. currency because they are more valuable than the Albanian lek. By bringing cash with him, Rustem also saved money on transfer and currency-conversion fees.
The Kazazis never imagined that what happened next could happen in America.
While going through security, Rustem was detained by a group of CBP agents, who took him to a small room. The agents questioned Rustem in English—a language he only partially understands—and refused his requests for a translator. They stripped him naked and searched him from head to toe, but found nothing illegal. As if these indignities were not enough, the agents then took every penny of the Kazazis’ savings and gave Rustem a receipt for “U.S. Currency” that did not state the amount seized. Rustem was not arrested—he had not broken any law. The CBP agents simply took his money and sent him on his way.
What happened to Rustem was no mix-up; it was civil forfeiture—a legal process that allows law enforcement to take property on the spot simply because government agents suspect the property is connected to criminal activity. This is distinct from criminal forfeiture, which allows government agents to take the proceeds and tools of criminal activity after the property owner has been convicted of a crime connected to that property.
Rustem and his family are innocent, but with civil forfeiture, that does not matter. Civil forfeiture treats innocent people worse than criminals: No conviction is required, no attorney is provided, and the process for getting your money back is painfully slow, even if—like the Kazazis—you have done nothing wrong. Worst of all, the government keeps 100 percent of whatever property it seizes, creating a dangerous incentive for law enforcement agencies to police for profit.
No law prohibits a person from carrying cash on an airplane. That is why, more than a month after the seizure, CBP tried to justify its actions by sending the Kazazis an outrageous letter claiming their money was “involved in a smuggling/drug trafficking/money laundering operation.” There is zero evidence that any of those things is true, and CBP points to no evidence of any kind. The truth is that the Kazazis saved up their money legally and have never been involved in any of those crimes, let alone “smuggling/drug trafficking/[or] money laundering.” Also troublingly, the agency’s letter claimed that $57,330 was seized from Rustem—$770 less than he was actually carrying.
In January 2018, the Kazazis responded to CBP’s letter by demanding the agency send the case to federal court. But now, more than five months after they asked to have their day in court (and more than seven months after the seizure), the agency still has not begun forfeiture proceedings or returned the money.
Meet the Kazazis
The Kazazi family epitomizes the American Dream. Rustem was born and raised in Albania and served for 30 years in the Albanian national police force, ending his career as an instructor at the country’s police academy. Lejla worked as a high school science teacher, and the couple raised two children together.
Even with the fall of communism, corruption and economic upheaval continued to grip Albania. Rustem and Lejla wanted a better life for their children, so they applied for and received visas through the U.S. Department of State’s lottery program. In 2005, the family left Albania and settled in Cleveland, Ohio. They became American citizens in 2010.
Ever since their arrival in the U.S., the Kazazis have worked hard and saved their money. Rustem took jobs doing demolition and other manual labor, working as a custodian, and often working two or three jobs at a time. Lejla started out as a custodian working nights, but over time, her English improved to where she now teaches English as a second language. After living in a small apartment for a few years, the Kazazis bought a modest home in a quiet Cleveland suburb.
Rustem and Lejla instilled the same work ethic in their children. Erald, now 23, will soon earn his bachelor’s degree in chemical engineering. Like many young Albanian men, Erald lives at home with his parents and contributes to family expenses. In fact, $24,000 of the cash seized from Rustem was money that Erald had given to him from jobs he worked throughout high school and college.
A Growing Problem Nationwide
Sadly, what happened to the Kazazis is a growing problem.
Only a few days after seizing the Kazazis’ money in Cleveland, CBP seized $41,377 from a Texas nurse traveling from Houston to her native Nigeria. The nurse—Anthonia Nwaorie—had saved the money to start a medical clinic for mothers and children, but those plans had to be put on hold after CBP took everything from her. The agency then held her money beyond the statutory deadline to initiate civil forfeiture proceedings, denying Anthonia her day in court. In her case, the agency offered to return the money if Anthonia agreed to sign a “Hold Harmless Release Agreement” waiving her constitutional and statutory rights to sue the agency and collect interest on her money. Rather than comply with CBP’s outrageous demand that she give up important legal rights in order to get her own lawful money back, Anthonia has teamed up with the Institute for Justice (IJ) and has filed a class action lawsuit in federal court in Houston on behalf of everyone to whom CBP has sent a Hold Harmless Release Agreement.
How big is the problem of CBP’s use of civil forfeiture? In FY 2014, the Cleveland branch of CBP alone seized at least $82,990 worth of property. Just two years later, in FY 2016, that number had increased to at least $967,503. Based on a report issued at the end of each fiscal year, the Treasury Forfeiture Fund—where CBP and a few other agencies deposit forfeiture proceeds—brought in over $450 million in revenue nationally in FY 2017 and had nearly $2.25 billion in assets at the end of FY 2017.
Unfortunately, the full scope of CBP’s use of civil forfeiture is known only to the government. More detailed information about CBP’s use of civil forfeiture is unavailable because the agency does not make the data it maintains available to the public. In March 2015, IJ filed a Freedom of Information Act (FOIA) request asking for access to the records in that database, but CBP refused to provide any records. After appealing that denial with the agency, IJ sued the CBP to release these public records in December 2016; the litigation is ongoing.
The Legal Arguments
The government’s strategy in these cases is to “seize first and ask questions later.” Rather than taking appropriate steps to ensure that property is actually connected to criminal activity before seizure, CBP simply takes what it can and only later—sometimes—bothers to figure out whether forfeiture is warranted. This practice completely subverts constitutional protections for private property. In America, no one should lose their property without being convicted of a crime.
The government has no right to continue holding the Kazazis’ money. Because CBP missed its deadline, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) requires the agency to return the money. CAFRA states that if the government does not file a forfeiture complaint within 90 days after an owner files a claim, “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.”[c]18 U.S.C. § 983(a)(3)(B) (emphasis added).[/c] Those regulations provide that, under these circumstances, “the agency shall promptly notify the person with a right to immediate possession of the property, informing that person to contact the property custodian within a specified period for release of the property.”[c]28 C.F.R. § 8.13(b).[/c]
The Court and the Parties
The Kazazis’ Motion for Return of Property has been filed in the United States District Court for the Northern District of Ohio.
The defendants in the case are the United States government and U.S. Customs and Border Protection.
The Litigation Team
The Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. This case is the latest in IJ’s nationwide initiative to end civil forfeiture. IJ has come to the defense of Americans nationwide to fight civil forfeiture, including the owners of the family-run Motel Caswell in Massachusetts, small business owners across the country whose bank accounts were targeted for civil forfeiture by the IRS, a class of property owners challenging Philadelphia’s civil forfeiture machine, a Burmese Christian band raising money for orphans and refugees, and a musician who had his life savings seized while traveling through Wyoming.
IJ is currently litigating another federal forfeiture class action against CBP in Texas; in that case, CBP seized and held a U.S. citizen’s Ford F-250 pickup truck for over two years because he’d forgotten that he’d left five bullets in his center console while crossing the border into Mexico at Eagle Pass, Texas.
To learn more about IJ’s national initiative to end civil forfeiture, visit endforfeiture.com.