Simkin.com - Common Border Problems

The Immigration and Naturalization Service (INS) has the authority to "seize" and compel the "forfeiture" any aircraft, vessel, vehicle, automobile, motorcycle, trailer, camper, jet ski, sail or motor boat which has been used in violation of the Immigration and Nationality Act's (INA) criminal provisions against alien smuggling, transporting, or harboring.

An obvious example of a violation of the INS' criminal provisions is where an individual has driven to the United States from either Canada or Mexico and has hidden a non-citizen in the trunk of his car which is discovered by the INS after inspection. In this type of a situation the INS is clearly justified to seize your vehicle.

The INS may also seize your vehicle and compel its forfeiture in situations where no obvious "alien smuggling" or violation of law, as illustrated above, has taken place. One such situation is where you have innocently driven a friend in your automobile to the U.S. to either go shopping or to see a ball game, and unbeknown to you, your friend is not eligible for admission to the United States. If your friend is found to be "excludable" by the INS, they may seize your car and subject it to forfeiture even though you yourself may be eligible for admission to the United States. The INS'position is that you should have known that your passenger was not eligible for admission to the United States, and because you did not they are justified by law to take your car from you. This may not sound fair, but it occurs regularly.

The following is a brief explanation of the terms and the process concerning the "seizure" and "forfeiture" of your automobile:

Seizure refers to the physical act of taking possession of your vehicle. The INS has the authority to seize your vehicle even if they do not charge you criminally. They do this routinely. The INS may also seize your vehicle even if they do not have a warrant so long as they have probable cause to believe that your vehicle is being used in violation of the INA's criminal provisions. A seizure may occur at a border prior to admission or inside the country after admission.

Forfeiture refers to the passing of legal title in your vehicle to the United States government. Forfeiture takes place after your vehicle has been seized. If your vehicle has been forfeited, you no longer own it. If your vehicle is worth more than $100,000 (U.S. funds), it cannot be forfeited unless the government wins a forfeiture action in federal court. If your vehicle is worth less than $100,000, it will be automatically forfeited if you do not timely file an appropriate petition for relief of forfeiture with the Department of Justice.

It is advisable that after seizure you timely file a claim for your vehicle together with the cost bond with the Department of Justice which will shield your vehicle from automatic forfeiture, thus compelling the government to pursue a judicial forfeiture action in federal court.

If you wish to have your vehicle returned in a judicial forfeiture proceedings to you after it has been seized, you have the burden of proof to show that you have a valid defense. The government is not required to prove that a crime has been committed. If you do not have a valid defense, the government only has to establish that they had probable cause to believe that your vehicle was used in violation of the INA's criminal provisions.

In most cases the United States Department of Justice is willing to administratively settle your case without the need for contested litigation in a judicial forfeiture proceeding in federal court.

COMMON BORDER PROBLEMS