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CUBA
Harassment of Travelers to Cuba by OFAC

 
   
  Returning from Cuba
Addressing On Going Harassment by OFAC After You Return Home
Responding to OFAC "Requirement to Furnish Information" Letter

Responding to OFAC “Pre-penalty Notice” Letter

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!

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. From the early 1990's until 2000, despite the government's bravado, after a hearing was requested, OFAC general filed away the case and no hearings were held, no judges were appointed to hold such hearings and no fines were paid.

But, there is a five year statue of limitations, or five year window for OFAC to file formal proceedings.

In 2004, OFAC began buying judges and scheduling hearings for cases dating back to 1999 and later. Should you fall into this situation you will need legal council.  One source for finding sympathetic attorneys is the National Lawyers Guild, www.nlg.org 

One of our lawyers familiar with the proceedings commented that OFAC treating these more like a criminal case than a civil action. By mid-2005:

  • Regardless of what OFAC was asking for, the judges were sometimes fining people more, and are threatening to go up to the $65,000 limit for travel.
  • In the process OFAC became increasingly emboldened.
  • In July, 2005, the government harassed the humanitarian Pastors for Peace caravan more than ever in the past, including confiscating used computers from Canada, intended for elementary schools in Cuba.

Because this is a “foreign policy matter”, the courts have previously ruled that this trumps constitutional rights and the executive branch can pretty much do what they want to, so in one more way the freedoms and liberties of the United States are being eroded..

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 per 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,

[Signed]

Return to OFAC: Travel, Trade, Licenses and Legislation

 
   
 

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