Judge rules Guatemalan immigrant must forfeit life savings

A Guatemalan immigrant who worked for ten years at various minimum wage jobs to saved $59,000, has been ordered by a US District Court in Broward County Florida to hand the bulk of those savings over to the government.

U.S. District Judge James Cohn ordered that Pedro Zapeta of Stuart Fla. would be returned only $10,000 of the $59,000 confiscated by Customs Agents as he attempted to board an airplane in September 2005.

The money was confiscated at the Fort Lauderdale-Hollywood International Airport when Zapeta didn't sign a declaration form before trying to board the plane. The 39-year-old Mayan, whose native language is Quiche, said that he was unaware of the requirement to disclose amounts greater than $10,000 and only wanted to return home to start a business with his savings.

"It is unconscionable for the government to take that money," said Robert Gershman, Mr. Zapeta's attorney. "They do it because they can. That's the only reason. It's just not right. He could have left with all $59,000 if he had signed the form."

Mr. Gershman believes that the dishwasher's immigration and social status worked against him: "If Mr. Zapeta were a professional man, or more intellectual, or more mainstream, there's no question that he would not have been treated this way."

Palm Beach Post Jan. 31, 2006

US Customs officials at first suspected that Zapeta might have been involved in drug related activities, but further investigation revealed him to be simply a hard working man wishing to return back to his country with his life savings.

Mr. Zapeta, 38, entered illegally 10 years ago and worked as a landscaper and for several Stuart restaurants, often holding two jobs at a time. He never earned much more than minimum wage but managed to save about $59,000. In September 2005, he stuffed the cash in a duffel bag, bought a plane ticket and set out to return to his homeland. He said he planned to use the cash to start a business. At Fort Lauderdale-Hollywood International Airport, Customs agents searched him and found the cash. They confiscated it and accused him of smuggling drug money.

Mr. Zapeta has no criminal record, and the government had no evidence to support its drug charges. Prosecutors withdrew them late last year after The Post published a column on the case.

Six of Mr. Zapeta's former employers filed affidavits on his behalf, verifying his work record. Mr. Gershman has acknowledged from the outset that his client was wrong not to declare that he carried more than $10,000, as the law requires. But he rejects the government's assertion that it is entitled to keep all the money: "It is cruel and unusual punishment to take it all."

Palm Beach Post, January 29, 2006

The judge's six page ruling acknowledged that Mr Zapeta had earned the money legally and rejected prosecution claims that Zapeta had engaged in tax fraud.

The Court rejects the United States’ argument regarding tax evasion or other law violations allegedly committed by Claimant. As noted above, Claimant has not been charged with any crimes, and the evidence indicates that some taxes were in fact paid, when perhaps they did not need to be paid.

United States District Court Southern District of Florida case no.. 06-60573-CIV-COHN (PDF)

Yet, Judge Cohn found that Zapeta was still subject to the forfeiture due to his not properly claiming the money at the time.

The sole basis for forfeiture in this action is 31 U.S.C. § 5316(a)(1)(A), which requires a person to file a report when the person knowingly transports, or attempts to transport, monetary instruments of more than $10,000 at one time from a place in the United States to a place outside the United States.

Claimant did not file a report, but was found with $59,000 in currency packaged in a suitcase hidden in multiple envelopes and wrapped by rubber bands as he attempted to leave the United States.

At the final hearing, Claimant’s counsel proffered by agreement Claimant’s testimony, which previously had been submitted by deposition, that the currency was Claimant’s savings from having worked manual labor jobs in the United States for ten years. Claimant did not have legal work status, and therefore did not use the banking system, but simply saved his money in a sack wherever he was living. As stated above, the United States has no evidence that Claimant has been involved in illegal activity.

A violation of Section 5316 may be prosecuting by either criminal proceedings or civil proceedings. In this case, the United States chose to only invoke a civil forfeiture proceeding. In a such a case, “any property involved in a violation of section . . . 5316 . . . and any property traceable to any such violation or conspiracy may be seized and forfeited to the United States in accordance with the procedures governing civil forfeitures. . . .” 31 U.S.C. § 5317(c)(2).

…snip…

In determining an appropriate forfeiture amount, the Court concludes that Section 5317 gives a court in a civil forfeiture proceeding for violations of Section 5316 the discretion to forfeit less than the total amount seized by using the term “may be seized and forfeited to the United States.” 31 U.S.C. § 5317(c)(2) (emphasis added).
Under the facts in this case, an appropriate forfeiture amount is $49,000, leaving the Claimant with the $10,000 that he could have transported without filing a report.3 As noted in Dean, it is not illegal to transport $10,000 or less in currency.

United States District Court Southern District of Florida case no.. 06-60573-CIV-COHN (PDF)

Zapeta's Attorney argued that the judgement was excessive since he would have faced the possibility of only a $5000 maximum fine had the judge decided to treat the matter as a criminal rather than civil case.

Mr. Zapeta is currently subject to deportation and removal. An Immigration judge has ruled that since he was already in the process of self-deporting at the time of the incident, he could remain in the country for the purpose of contesting the forfeiture proceedings but must leave upon resolution of the matter.

The Palm Beach Post reports that Mr. Zapeta has no real option for appealing, and is likely to be deported soon.

As anti-immigration advocates argue for stricter enforcement of immigration laws in order to force the current population of undocumented migrants to "self-deport" through a policy of "attrition" that would make it harder for them to work and survive, it's ironic that Mr Zapeta, who was essentially following their suggestions and in the process of "self –deporting", ended up robbed of his life savings by the US government.

It is no small wonder that when the government makes promises about future immigration policy or guarantees fair treatment for future guest workers, they are often met with skepticism.

It will be interesting to see what happens if there is ever a program that asks the undocumented population to come forward and register in order to move forward with some sort of earned legalization process. In the Senate bill passed last year, a compromise was reached that required certian undocumented immigrants to return home before being able to legally re-enter the US. How could the government possibly sell that proposal to a population that sees what happens to those like Mr Zapeta?

Judge Cohn had an opportunity to demonstrate that fair play and compassion are a major component of American justice ... instead he sent just the opposite message.

UPDATE: 9/28/07

Eight month's from the first publication of this story in the local press, Pedro's story has finally been picked up by the national media. An expose on CNN has led to an outpouring of support from some circles, and the usual din of right-wing noise from the other.



But for Pedro ...it's just one more day in his continuing journey through the hell of a US ilegal system that offers little by way of justice, reason, or compassion.


tags: immigration, Pedro Zapeta , US District Court Fla, lost life savings