Two recent developments in the law have had a dramatic effect on vehicle seizures and related matters involving the U.S. Immigration and Naturalization Service (INS).

The most important development involves a legislative change in the method for pursuing vehicle seizure remedies. In the past, there were two options for people who had their vehicle seized: a judicial remedy or an administrative one.

The administrative remedy was used in the vast majority of cases because it was faster and did not require payment of a bond. However, instead of going through a federal judge, the administrative remedy involved a review by INS vehicle seizure officers. So, INS vehicle seizure officers would have the final say on the actions of INS inspections officers.

There was a provision for reconsideration, but no judicial appeal. The vehicle owner could file a petition stating why the return of the vehicle, and/or a reduction in the penalty was appropriate. The vehicle owner was not made privy to the memoranda of the inspections officers or the nature of any written evidence submitted by the inspections officers. The seizure officer would review the evidence presented by the INS officers at the time of the seizure, weigh it against the vehicle owner’s petition, and decide on a remedy. Usually, the remedy was the return of the vehicle and the payment of a fine that fell within five to 20 per cent of the value of the vehicle. The process could take anywhere from two weeks to two months.

But in a new law that became effective in August, the administrative remedy has been eliminated, leaving the judicial remedy as the only option in most cases. More costly and time consuming, the aggrieved party must file a bond of 10 per cent of the vehicle’s worth to cover potential court costs. The bond does not allow the release of the vehicle. The parties then have to wait for the judicial process to wind its way to a hearing, a process that often takes many months. The advantage, if any, of this alternative is the opportunity to have an impartial federal court judge review the evidence from both sides.

If the vehicle owner decides to protest a seizure and file a claim, the INS then must decide whether to return the vehicle or pursue the matter in federal court. This sounds bad, and it may be bad for people who actually suffer vehicle seizures. But the number of seizures will decline.

The more important result of this law is to raise the standard of review, and force the INS to only deal with seizures that are provable and winnable in court. If no, there would be a practical problem of clogging the courts with vehicle seizure cases and tying up the resources of the government legal staff. Last year, there were over 30,000 vehicle seizures by the INS.

The INS informally predicts the effect of this new law will be to reduce vehicle seizures nationwide by 80-90 per cent.

A local INS official remarked recently that he is unaware of any truck seizures in the past four months. The INS recognizes the detriment to the vehicle owner for the loss of the vehicle, and also appreciates that an independent judge will determine whether the INS had “probable cause” to make the seizure.

This will force the INS to depart from their prior practice of making conclusions based on circumstantial evidence, and force them to only act in cases where the violation is significant and the factual basis for the seizure is solid.

The second development in the law is overshadowed by this new rule, but is worthy of mention because of its possible effect on related issues. This involves a lawsuit filed around five years ago in Seattle, Wash. as a class action on behalf of all owners of seized vehicles within the western region of the INS.

The purpose of the lawsuit was to challenge the legality of the methods used by the INS, and to allow affected parties to recover some or all of the costs and penalties associated with the unfair process.

The primary complaint of the parties was that the administrative procedures of the INS lacked due process. They claimed that the procedures were fundamentally unfair because the INS did not provide the vehicle owner with detailed evidence against them.

After an appeals judge issued a preliminary ruling in favor of the class of vehicle owners, the INS entered into settlement negotiations, culminating with a proposed settlement agreement in November.

For the parties to the lawsuit, the proposed settlement was an important opportunity to allow reconsideration of any vehicle seizure made in the Western Region of the INS between 1989 and 1999.

But there may be impact for others, as well. It was significant for the court to make a finding that the INS administrative procedures lacked fundamental fairness, and that in the future, the INS would have to be more forthcoming with reasons for making seizures.

Hopefully, the same fairness issues will be involved in other contexts, such as refusals of entry at the border. It is an affront to the U.S. and Canadian notion of fairness, to allow a system where a government employee can exercise personal discretion on an important issue such as vehicle seizure, or entry to the country, and then not be required to fully disclose the reasons for the decision. n

– Daniel Joyce can be reached at Hirsh and Joyce, Attorneys at Law, at 716-564-2727. This column is for information purposes only and is not intended as legal advice.