It was revealed last week in a bombshell report by The Intercept how the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) uses its Asset Forfeiture Handbook to seize millions in cash, real estate and other highly valuable property. Asset forfeiture includes the seizing of property through criminal forfeiture, which happens after the owner has been criminally convicted, and civil asset forfeiture, which does not require a criminal conviction or even charges to be filed.
The internal handbook that was obtained by the Intercept offers a very rare view into just how extensive the asset seizure operations are at HSI and ICE. The handbook shows that the primary focus of this department is on seizing and valuing property to fund future law enforcement operations, and less on fighting crime.
This two-tier asset seizure system, the 71-page Asset Forfeiture Handbook notes, can be used where the person has not been convicted of a crime, but also is not completely an innocent owner. Because of this, under criminal forfeiture, the owner of the property would be entitled to the property being returned. But under civil forfeiture, the owner loses his or her interest in the property to the US government. Thus, the handbook argues, the civil forfeiture proceeding is vital for ICE agents.
The handbook underscores the key role that asset seizures play in assisting federal agencies to fund law enforcement actions and covering costs that HSI does not have the money to fund. This handbook offers an excellent window into the asset forfeiture operations used by ICE, and the emphasis that is placed upon the agency seizing property of value.
According to the Intercept, the handbook does reflect ICE’s current guidance on asset forfeiture.
Handbook Offers Agents Helpful Asset Seizure Tips
The handbook provides agents with several tips on how they can increase profits through the proper seizing of property. For example, the handbook states that agents should not waste time and resources confiscating what it calls ‘liabilities.’ The handbook in fact outlines general rules for asset forfeiture that can be summarized as follows: If the total costs and liabilities that are incurred in seizing property or business exceed the property’s value, it should not be seized.
For cases where there is not enough profit involved to justify the seizure and forfeiture, the property can still be taken if there is a valid law enforcement reason. In such cases, the handbook notes, the item’s value may be less important. This implies that the value of the property is of primary importance.
Handbook Outlines Factors for Seizing Real Estate
The handbook devotes a large number of pages to seizing real estate. This makes sense because many pieces of real estate are worth a lot of money, and can bring considerable revenue to the US Treasury. The manual states that agents should work with confidential informants, look at tax records and even get an interception warrant to see if a phone that is located on the property was used to talk about criminal activity.
When the agent has the opportunity to seize real estate, the handbook states that there are six major factors to consider:
- Assessed value of the property
- Any known liens on the property
- The equity in the property
- Any potential environmental problems
- Probable cause for the seizure
- Ability to overcome potential defenses to the seizure
This indicates that the primary consideration for seizing real estate is what the value of the property is. To perform more accurate real estate appraisals, the ICE handbook also teaches the agents how they can do more effective ‘post and walk’ property viewings. With a search warrant, ICE agents and a real estate appraiser can go through the property and document any items that may be an issue, or will deter the US government from seizing the property. The handbook notes that these post and walk viewings are often some of the most important parts of the forfeiture and seizure process.
The guidelines also tells agents that they should use commercial databases to look into the sales history and market conditions for where the property is located. The manual emphasizes that after the property has been seized, agents should walk the property through the process to ensure that the US government gets as much money as possible.
The manual states: “The deteriorating value of any item seized, commensurate with its associated storage and disposal fees, should be a primary concern of all parties involved,” the document states. “The quicker and more efficient the forfeiture process, the less money the seizure will cost the Government.”
Handbook Lays Out Requirements for Asset Forfeiture Specialists
The leaked guidelines describe how asset forfeiture specialists are groomed within ICE and then are placed in field offices across the US. The specialists are called Asset Identification and Removal Group members. They are charged with appraising and identifying assets that may be seized during various investigations by HSI.
The handbook states that all AIRG agents must have a minimum of three years of experience. AIRGs are described as specialized and separate groups that are dedicated only to asset forfeiture. They should not be mixed with other agent groups or burdened with duties that are outside their specialty.
ICE carefully trains AIRG agents to input data about assets that the agency seized or is thinking about seizing into a database. The agents also will put their forfeiture numbers into another huge DHS database called TECS. This allows agents to look at the performance of different asset officers and give them scores for their work.
AIRG agents, the handbook states, are carefully evaluated by the quality and quantity of cases. Much of the guidelines are dedicated to seizing real estate because of the dollar values involved. It is these pages where it becomes clear that federal agencies have both financial and law enforcement objectives in the asset seizure process. Little information is given about how to use seized assets to fight crime, but there are long discussions about how agents should determine the value of property.
ICE Contributes Billions to the Treasury Forfeiture Fund
The guidelines of the ICE handbook seem to have helped the agency to increase its haul taken in through asset forfeiture. The Government Accountability Office (GAO) reports from 2003-2013 that the Department of Homeland Security agencies put in more than $3.6 billion to the Treasury Forfeiture Fund. In the last several years, revenue from forfeiture from ICE has been at least 50% or more of the revenues from forfeiture for DHS, the GAO reports.
ICE is best known for enforcing immigration law, which is mostly carried out by agents for the Enforcement and Removal Operations division. But the HSI component has a broad mandate and enforces more than 400 statutes that are focused on the nexus of international criminal organizations and cross border crime. HSI focuses largely on terrorism, counterfeit products, drug smuggling, and human trafficking.
HSI has over 6000 agents and 185 filed offices in the US and 63 cities overseas. It also has the second largest number of agents on the Joint Terrorism Task Forces run by the FBI. To fulfill many of its missions, HSI has access to intelligence and data systems that connect law enforcement at the federal level to the CIA, as well as the Defense Intelligence Agency at the Pentagon.
Each year, DHS and ICE are seizing millions of dollars through many investigations, including boats, cars, cash and homes. But Robert Don Gifford, who worked as an assistant US attorney for 10 years, told the Intercept that the handbook’s details of utilizing civil forfeiture when there is not a criminal indictment can be a highly problematic practice. It appears that the agency is seizing assets largely for the possibility of financial gain. But Gifford did note that he never saw this practice going on in any federal agency he ever worked in.
Gifford stated that a large chunk of HSI cases were targeting sellers of counterfeit products. Agents were hoping that these small scale counterfeiting busts would lead them to bigger counterfeiting operations. He noted that there were cases that he saw where the agents wanted to do small scale forfeitures that involved ‘mom and pop’ operations at small flea markets. But Gifford would not allow the agents to go after those people.
ICE apparently contributes an even larger proportion to what is called ‘equitable sharing.’ This is a program that allows state and local law enforcement to work with federal agencies and to forfeit property that has been seized under US law. During that period, DHS delivered $1.2 billion through the equitable sharing program to local and state agency partners. ICE accounted for a huge 90% of the equitable sharing payments.
Equitable Sharing Can Be Abusive
However, some experts allege that equitable sharing involves many seizures that are improper and even abusive. For example, a case that was covered in detail by The Washington Post found that a church secretary had nearly $29,000 in member donations seized by police in Virginia. The man was never charged with a crime, but his cash that was seized was given to ICE and then was doled out under equitable sharing. The church secretary was able to recover the funds, but only after an ex-deputy chief for the Asset Forfeiture Office at the Department of Justice personally intervened.
In mid-2017, AG Jeff Sessions reversed one of the limits on equitable sharing, which was a ban on adoptions. A week later, the US Treasury Department did the same thing.
Still, many US lawmakers are strongly opposed to equitable sharing. In October 2017, the US House passed amendments that would take funds from the adoption program, as well as the forfeiture directive issued by Sessions. At the state level, seven states and CD have passed laws that reduce the ability of their agencies to participate in the equitable sharing program.
ICE Forfeiture Handbook Lays Exposed
The Intercept has done a public service, according to some advocates, because it is showing how ICE uses asset forfeiture to enrich the US government as well as its state and local partners, and not all of these cases are entirely fair or proper.
The Treasury Department itself does not always handle asset forfeiture and cash seizure properly either. A recent report that details forfeiture transparency and accountability found that the US Treasury Department got an F because it did not disclose how seized property is tracked.
Interestingly, ICE and the US Customs and Border Protection agency tracks all seized property through a special forfeiture database known as the Seized Assets and Case Tracking System. This system has more than four million records. The Institute for Justice recently filed a request to gain access to the system, but the Border Protection agency would not allow it. The Institute filed a lawsuit that is still ongoing.
Advocates argue that the poor transparency that surrounds asset forfeiture at the federal level is highly troubling. Federal law enforcement sometimes abuses its power to talk cash and property from people and they are never even charged with a crime. The process to get the cash or property back is difficult and often expensive, as many average people cannot afford the legal help required to get justice.
In response to the report and handbook that was exposed, ICE has noted that it is not alone among federal departments that are reliant upon asset forfeiture to fund operations. According to ICE spokesperson Danielle Bennett, asset forfeiture is an important tool used by law enforcement, as it takes money and assets from large, criminal organizations. Asset forfeiture by ICE and other federal agencies is used as a sanction in many civil, administrative and criminal investigations.
But the leaked handbook authors seem to realize some of what they are doing is questionable. The handbook also acknowledges that civil asset forfeiture can be utilized by law enforcement to talk property from people even when there is not sufficient evidence for a criminal indictment. It states that there could be third party interest that can take precedence in a criminal case, but would not last long in a civil proceeding. This is what makes the civil proceeding so essential to asset forfeiture.
Until this handbook was leaked, HSI had managed to keep a very low profile, when compared to other federal agencies. The current presidential administration is focusing resources on deporting illegal immigrants, so the role of law enforcement and ICE is becoming more of a target for intense public debate. This has helped to pull HSI from the shadows. The handbook that the Intercept obtained has now shed much light onto how the department funds many of its investigations.