Returning from Cuba
[The following does not constitute legal advice.
Although we strive to provide quality information, we make no guarantees,
claims, or promises about completeness or adequacy of the information provided.
Legal advice must be specifically tailored to individual situations, and laws
are constantly changing. Nothing contained herein substitutes for consultation
with a competent legal counselor.]
If you are under United States (US) jurisdiction (a
US passport or green card holder) and travel to Cuba without a license, the
sticky point is when you return to the US. Returning to the US by air, you must
complete a card where you are required to lists the countries you have visited.
Prior to the Bush administration, people could admit that they went to Cuba and
most breezed through US customs. Some were asked if they have Cuban goods and a
verbal “no” was usually sufficient.
Friendly-treatment still happens – some customs
agents say nothing. But it is now more likely that you will receive scrutiny.
Some officers give a little lecture, others search bags for rum, cigars and
other souvenirs to confiscated, sometimes passports are copied and notes taken,
and sometime visitor to Cuba are treated like they are on the FBI's "Ten Most
Wanted List". The interrogators can be belligerent and intimidating, you won’t
be told that you have any rights, like the right to remain silent and not
incriminate yourself -- as guaranteed by the 5th Amendment to the U.S.
Constitution. These guys have training and practice at this. If you try to
exercise your rights be prepared for hostility, threats and retaliation such as
long baggage searches. You may feel like you are returning to a heavy-handed,
non-democratic country. But despite all the theatre, you won’t be denied
re-entry, you won’t be arrest and the harassment doesn't mean you will have to
pay a penny of fine!
When you enter the U.S. you will have to fill out a
white card asking a few question about where you went and the value of goods you
are bringing back. Legally, to avoid perjuring yourself, it’s best to list that
you visited Cuba and all the other country you transited through, and to be able
to say the value of items you are returning from Cuba with is zero dollars. If
asked about a license (see “Traveling
to Cuba”), your best position is to explain how
you qualify for a “General license” or to the extent you can emphasis that you
participated in an “educational people-to-people program”. If asked for
information beyond the details covered on the custom’s form you should try to
refuse to give self-incriminating information and say “I have been advised by
counsel to not answer any further questions.” The customs agents may tell you to
fill out an OFAC form
that asks for the details of your trip and expenditures. Legally there is
probably a limit to how much US government can compel you to tell them about how
much you spent for any portion of your trip, who you met, who you travel with,
who you did business with, etc. If you intend to refuse to answer their
questions and fill out the forms, expect to be searched by a cross customs
agent. You are advised to not carrying any paperwork, receipts or goods that
identify or indicate any expenditure in Cuba. Without a license, any goods of
Cuban origins, regardless of where they were bought, are subject to seizure and
can be used as evidence that you had transactions with Cubans. The interrogation
and search may be the last you hear from the government. Or several months
later the ugly beast might rear its head again.
People under U.S. jurisdiction sometimes take
advantage of the fact that they can travel to and from Mexico using a government
issued photo ID and proof of citizenship. They still need a passport to enter
and leave Cuba. Returning to Mexico, they bury their passport and any evidence
that they visited Cuba. When they re-enter the U.S. they use a photo ID (i.e.
driver's license) and proof of citizenship (i.e. birth certificate,
naturalization papers, green card).
Addressing On Going Harassment After You Return Home
Rough approximation of OFAC Interrogation Form, with comments in [square
brackets].
1) Did your trip qualify for a
general license?
2) Do you have a
specific license?
Interview Questionnaire:
Date: _______________
Time: ____________ Port of Entry: ________
Name: ______________ Date of
Birth: _________ SSN ______________
Address: ______________________________________
Passport #: ____________ Country:
_______________
Home & Work telephone numbers
1) Specific travel dates to/from Cuba? [It is
not illegal to travel to Cuba, but OFAC seems to have formulas on how much
you should have spent for each day you stayed in Cuba, even if they have no
evidence.]
2) Purpose of trip? [Either a category of
general license, or people-to-people, education, religious, cultural/sports,
humanitarian are recognized categories, but require a specific license]
3) How did you traveled to Cuba?
A. Name of Airline: [It is not illegal to do
business with or to travel on Mexican (Aero Caribe), Canadian, Jamaican or
other non-Cuban owned airlines.]
B. Who paid for airline tickets? [If you traveled on a legal airline it
doesn't really matter if you paid for your ticket, but OFAC makes its own
rules and may misuse the information.]
C. If someone else paid for the ticket, provide name and mailing address:
[Again, if it is a legal airline it should make any difference, but it
looks more like a "fishing expedition" or "witch hunt" than
constitutionally sound question.]
D. How was payment made? [Assuming it's their business, cash or money
order would be good methods.]
E. Airline receipts? [If you travel on a legal airline it doesn't really
matter, except that OFAC may misuse the information.]
[The rest of the questions attempt to focus more
on what transpired in Cuba, so you will want to be much more careful about
your answers.]
4) Provide the names and location of all hotels
or places of lodging?
[OFAC wants to use names of lodging as a proxy for you having spent money.
If you are part of a group program there is no reason you would have taken
notes on all of this. Further more, in that OFAC is likely to miss use any
information you provide to incriminate you, you might want to invoke your
5th Amendment rights.]
5) How much money did you spend on: Food
Hotels Transportation Merchandise Entertainment Expenses
[If you haven't already this would be a good time to invoke your 5th
Amendment rights.]
If you claim that someone else paid for all
expenses in number 5, who paid your expenses? [If you claim the 5th above
you would answer this.]
List all Cuban merchandise purchased that you
are carrying?
[Ideally nothing.]
6) Any receipts? [Ideally none.]
7) Provide names, etc., for any entity that
assisted in arranging your travel:
[Because the question could include information you got from a website or
Lonely Planet publication and clearly legal portions of your travels that
had nothing to do with Cuba, it is part of OFAC's fishing expedition and
witch hunt. It is probably overbroad, but there will be no judge there to
raise an objection to.]
How much did you pay? [Are they asking about
for the taxi to your home town airport, the tip to the porter, air plane
ticket to an connecting city, etc. The question is probably overbroad.]
Signature
Addressing
On Going
Harassment by OFAC After You Return Home
Under the Bush administration, follow-up has become much more aggressive and
they don't feel they need any hard evidence that someone spent money in Cuba
before they start harassing them. If the government (OFAC) decides to harass you
further, typically it takes one of two forms: 1) they sends you a "Requirement
to Furnish Information" letter threatening fines and demanding information; or
2) they sends you a "Pre-penalty Notice" assessing a civil fine – often $7500 –
based on OFAC's "determination that the you spent money in Cuba" without a
license. Typically the letters give you 20 days to respond. Don’t panic! No one
who has asserted their rights and not voluntarily paid the government has paid a
dime.
To assert your rights you must do write and send a
letter within 20 days! Form letters are available below, and from the National
Lawyers’ Guild, which in the case of 1) assert the right of self-incriminating,
and 2) asking for a hearing. In the past these letters have stopped harassment
from the OFAC cold. Despite the government bravado, for since the early 1990's,
after a hearing is requested, OFAC has filed away the case. No hearings have
been held, nor have any judges been appointed to hold such hearings and no fines
have been paid. Should it be necessary, for further information on your rights,
and obtaining legal counsel contact the National Lawyers Guild,
www.nlg.org
Responding to OFAC "Requirement to
Furnish Information" Letter
[This letter doesn’t impose a fine. Ironically,
you’re more likely to face a penalty if you oblige than if you assert your
rights. Retype and send the following. Generally it is best not to send any
additional attachments.]
Chief of Enforcement
Office of Foreign Asset Control
US Department of the Treasury
1500 Pennsylvania Ave NW
Washington DC 20220
RE: FAC No. C-xxxxxxx
Dear Sir or Madam:
This letter is in response to your "Requirement to
Furnish Information" letter to me, dated [INSERT DATE OF OFAC LETTER TO YOU] and
received by me [INSERT DATE YOU ACTUALLY RECEIVED THE LETTER]. For the reasons
stated below, I respectfully decline to respond.
OFAC’s regulations of transactions incidental to
travel, and OFAC’s demand for information pursuant to such regulations are a
violation of the rights of U.S. citizens to travel abroad, to seek information
through foreign travel relevant to public issues, and to exchange information
and views with foreign persons, all as guaranteed by the First and Fifth
Amendments to the Constitution of the United States.
Furthermore, OFAC’s regulations regarding
transactions incidental to travel, and OFAC’s demand for information pursuant to
such regulations constitute discriminatory enforcement of the laws on the basis
of national origin and political viewpoint, in violation of the First and Fifth
Amendments to the Constitution of the United States. The imposition of any
penalties is also discriminatory. Such conduct is arbitrary and capricious and
in violation of the Administrative Procedure Act. In this respect, it is noted
that substantial numbers of Cuban-Americans and others travel to Cuba with the
knowledge of OFAC, in apparent violation of the Cuban Assets Control
Regulations, but without consequence.
Furthermore, with respect to any further
communication, I assert my privilege against self-incrimination under the Fifth
Amendment to the Constitution of the United States.
Very Truly Yours,
[Signed]
Responding to OFAC “Pre-penalty
Notice” Letter
[If you request a hearing, OFAC must hold a hearing
before they can proceed. In the past 9 years they have never held a hearing.
Retype and send the following letter. Generally it is best not to send any
additional attachments.]
Chief of Enforcement
Office of Foreign Asset Control
US Department of the Treasury
1500 Pennsylvania Ave NW
Washington DC 20220
RE: FAC No. C-xxxxxxx
Dear Sir or Madam:
This letter is in response to the above-referenced
Pre-penalty Notice dated [INSERT DATE OF PRE-PENALTY NOTICE], which was received
on [INSERT DATE NOTICE RECEIVED].
I deny each and every allegation in the pre-penalty
notice and request an agency hearing in Washington, D.C. with respect to the
imposition of any penalty.
In connection with our above hearing request, I
submit the following pre-hearing discovery request:
1. All documents in your files pertaining to this
matter, including, but not necessarily limited to: Any records or evidence of
the allegations made in the pre-penalty notice;
2. Any correspondence or communications received
from members of Congress within the past year which are related to OFAC’s
enforcement of regulations pertaining to Cuba and OFAC’s response to said
correspondence or communications;
3. A summary of penalties assessed and/or collected
from Cuban Americans in the past five years for violation of the regulations
limiting such persons to one family emergency trip to Cuba every three year; and
4. A summary of penalties collected from persons
subject to OFAC regulations pertaining to Cuba other than Cuban Americans in
last five years.
This discovery request in ongoing, and will be
supplemented from time to time as needed.
Very Truly Yours,
Created by David Mozer
Copyright 1996-2003 International Bicycle Fund. All rights reserved.
