Recovering Seized Cash from CBP After Failing to File FinCEN Form 105

If U.S. Customs and Border Protection (CBP) seized your cash, cashier’s check, any form of currency, or other monetary instruments while entering or leaving the United States because of a failure to file FinCEN Form 105, you’re not alone — San Diego Defenders – Forfeiture Law Firm can help you get your property back.

According to CBP, “CBP officers and agents seized an average of $182,998 in unreported or illicit currency every day along our nation’s borders during fiscal year 2023.”

That averages out to approximately $67 million in currency seized due to FinCEN Form 105 violations and other activity in just 12 months.

This happens at the border point of entries (POE) such as San Ysidro, Otay Mesa, or even the Cross Border Xpress (CBX) pedestrian bridge connecting San Diego to the Tijuana Airport.

With 35 years of experience in federal defense, Attorney Dan Smith helps travelers recover their money after CBP seizes it for alleged reporting violations, including failing to file FinCEN Form 105, suspected bulk cash smuggling, cash structuring, money laundering, or just plain forgetting to fill out the FinCEN Form 105.

What Is FinCEN Form 105?
Why Was My Cash Seized?
What Happens After a Seizure?
Case Result- Cash Successfully Returned After Failure to Report Using FinCEN 105 Form

What Is FinCEN Form 105?

Federal law (31 U.S.C. § 5316) requires you to report any amount over $10,000 in currency or monetary instruments transported into or out of the United States.

This is done using FinCEN Form 105.

You can either:

Complete the form electronically before traveling here.
Print a PDF version of the form here and bring it with you while traveling to present it to a CBP officer.
Request to fill out a FinCEN Form 105 in person with a Customs agent.

Failing to file this form, even if the source of the money is legitimate, may lead to immediate seizure of the funds by Customs and result in administrative asset forfeiture.

Why Was My Cash Seized?

There are three justifications CBP typically gives for seizing your money due to FinCEN 105 Form violations under federal forfeiture laws:

1. Failure to Report (31 USC § 5316)

When traveling internationally with more than $10,000 worth of any monetary instrument, you are required by law to declare it using the FinCEN 105 Form.

A failure to report occurs when a traveler either:

Does not complete a FinCen 105 Form when required.
Incorrectly fills out their FinCen 105 Form, which means you may have miscounted your money before crossing.

If you failed to file the required FinCEN Form 105 or made a false or incomplete declaration, CBP holds the authority to seize the full sum of your money, even if you were innocently unaware of the reporting requirements— here at San Diego Defenders – Forfeiture Law Firm, we feel that is unfair.

If the extra cash is in Mexican Pesos or any other foreign currency instead of US Dollars, you will still need to report using the FinCEN 105 Form if the value exceeds $10,000.

Otherwise, CBP can seize your currency under a failure to report.

When transporting large sums of money in envelopes, it is essential to be mindful of the cash in your wallet and on your body since that currency also contributes to the total amount of money you are considered to be traveling with.

Often, U.S. Customs agents will combine all the currency from family members traveling together as just one group member.

2. Bulk Cash Smuggling (31 U.S.C. § 5332)

Further, CBP may find you in violation of bulk cash smuggling if they believe you intentionally concealed currency to avoid reporting it with the FinCEN 105 Form.

This was added as an offense under the 2001 USA PATRIOT Act.

31 USC § 5332(a)(2) sets the guidelines for what is considered intentional “hiding”, which includes placing monetary instruments in separate luggage, carry-ons, a backpack, another container, clothing, or other merchandise on your person or with you.

Therefore, innocently dividing your money into different suitcases and items in an attempt to travel safer can also be considered bulk cash smuggling if the value amounts to over $10,000 and you do not file a FinCEN 105 Form.

Customs officers often view everything as suspicious.

3. Structuring (31 U.S.C. § 5324)

Lastly, cash structuring occurs when a traveler tries to evade reporting cash with a FinCEN 105 Form by dividing their money into smaller amounts under $10,000, such as between family members or making multiple trips.

As previously mentioned, Customs will group all the cash, currency, and checks into one amount and pick the leader of the group as the responsible party.

Even if each individual’s cash amount is below the $10,000 requirement, CBP will group the total amount of money within the group and seize it if it is not properly reported with the FinCEN 105 Form.

Then, they will detain the entire group for questioning.

Frequently, people do not report their money out of fear that it will be taxed if declared, but that is not always true, and it is NOT generally a good reason to file a FinCEN 105 Form.

The form does not have a section for you to declare what type of money you have for accounting and tax purposes. You can view a PDF version of the form here.

What Happens After a Seizure?

Once CBP seizes your cash or other monetary instruments for any of the above violations, you will typically be given a custody receipt.

Most often, the group will be detained, and information will be gathered.

After that, you usually receive a four-page letter with four forms via certified mail that typically arrives 3-4 weeks after the seizure; however, CBP has 30 to 60 days to send this.

The letter typically arrives 3-4 weeks after the cash seizure, but CBP has 30 to 60 days to send you this Notice of Seizure and Information to Claimants CAFRA form with a limited time to respond — act quickly and call San Diego Defenders – Forfeiture Law Firm at (619) 258-8888 with any questions.

This includes the Election of Proceedings Form, which outlines four options for proceeding and potentially retrieving your seized property.

We recommend filing a claim through an attorney, option four on your Election of Proceedings: “I am filing a claim and requesting that CBP refer the case for court action.”

It sounds frightening, but it limits CBP’s response time to 90 days, while petitions and offers in compromise (two other options on your Election of Proceedings) have no time limit and no opportunity to engage in due process decisions.

This is possible under 19 CFR § 162.94, which states, “any person claiming property seized by Customs in a non-judicial civil forfeiture proceeding may file a claim with the appropriate Fines, Penalties, and Forfeitures Officer.”

Another name is “administrative forfeiture,” where there is little due process, except when your attorney files a claim.

The claim must be filed within 35 days with U.S. Customs and Border Protection’s Fines, Penalties, and Forfeitures office.

However, it is essential not to wait until the last minute to file a claim. The claim must be on the agency office’s desk ON the 35-day mark.

We cannot prepare and mail the claim on the 35th day, as it will not arrive on time.

This will cause your cash or currency to be forfeited and lost to the federal government.

Don’t wait. Call our office today at (619) 258-8888 for a free, confidential consultation!

Se habla Español.

Case Result- Cash Successfully Returned After Failure to Report Using FinCEN 105 Form

Our client was traveling from the United States through the San Ysidro POE at Via de la Amistad when U.S. Customs and Border Protection (CBP) agents seized their 401,650 Mexican Pesos, which was appraised at $24,072.12 in U.S. currency.

The funds were intended to pay construction workers building their family-owned bed and breakfast project in Mexico—a common situation that we encounter, along with traveling with currency for gifts to buy on vacations or tummy tucks/“mommy makeovers.”

The money was legitimately and entirely earned through our client’s work in their family’s construction business.

Although there was no evidence of the money being used for unlawful intent, CBP proceeded to seize the entire amount of funds under suspicion of illegal proceeds.

In the Notice of Seizure and Information to Claimants Civil Asset Forfeiture Reform Act (CAFRA) Form, CBP specifically cited multiple violations, including failure/inaccurate report of more than $10,000 out of the United States under 31 U.S.C. § 5316(a)(1)(A) and § 5317(c)(2), as well as structuring under 31 U.S.C. § 5324(c), and attempted bulk cash smuggling under 31 U.S.C. § 5332(a) and § 5332(c).

Attorney Dan Smith promptly filed a claim on behalf of our client, as there is a limited time from the date printed on the Notice of Seizure letter to submit a response.

Equipped with 35 years of experience in federal defense, Attorney Smith demonstrated that the funds were lawfully sourced, the intended use was legitimate, and there was no evidence of unlawful intent.

As a result, CBP agreed to return the full amount of 401,650 Mexican Pesos (appraised $24,072.12 in U.S. Currency), and the case was settled in a timely fashion since claims give attorneys representing CBP a 90-day time period to negotiate and settle.

Contact San Diego Defenders – Forfeiture Law Firm Today!

If CBP has seized your cash and you’re facing allegations for a failure to report using a FinCEN Form 105, bulk cash smuggling, and/or cash structuring, don’t wait.

Once your money is seized, the forfeiture clock starts ticking, and the process is time-sensitive.

Call San Diego Defenders – Forfeiture Law Firm today at (619) 258-8888 today for a free, confidential consultation with Attorney Dan Smith, an experienced CBP asset forfeiture attorney.