The scoop on “illegal” U.S. travel to Cuba

[1]

Today I was quoted at length in USA Today [2]’s article, “U.S. Tourist ordered to pay $6,500 for illegal Cuba trip.”

Laura Bly’s story relates to Zachary Sanders, a 38-year-old New Yorker who traveled to Cuba [3] in 1998 via The Bahamas [4] without the required license from the U.S. Treasury Department [5] for legal travel. Foolishly, Sanders brought Cuban cigars home as he tried to pass through U.S. Customs [6] in Nassau [7] (officials in Nassau go on alert when flights from Havana [8] arrive).

Two years later, Sanders received a questionnaire from Treasury’s Office of Foreign Assets Controls [9] (OFAC, which oversees financial dealings with Cuba) asking for details of his expenditures in Cuba. He didn’t return the form. In 2002, when the Bush administration [10] began cracking down on illegal travel, OFAC sent Sanders a “notification of intent to levy a fine” for his failure to return the form.

In 2008, an administrative law judge fined Sanders $1,000 for the form infraction. This, apparently, was capriciously raised to $9,000 by an over-zealous OFAC official, reasoning, says Laura Bly “that the original fine was too low to discourage people from ignoring OFAC forms.”

After a protracted to and from in which Sanders sued the U.S. government, last Wednesday he agreed to settle the case.

While writing her story, Laura contacted me to ask my take.

“What's interesting here is that (Sanders) is being fined for failure to return the form, not for actual travel to Cuba,” she quotes me as saying.

Indeed, to my knowledge, only two people have actually been fined for illegal travel to Cuba. True, thousands of others have paid up when they received a 'notification of intent to levy a fine' from OFAC, but this is a preliminary stage that can be challenged. Most importantly, no judges are in place to adjudicate any challenge, the sole exception being a brief tenure in 2004-2005 during the second Bush administration. The first-ever such fine was for US$5,250, slapped on a Michigan couple who had traveled in 2001 on a religious mission; the second penalty was for US$780. Both fines were reduced from the original notification to levy $7,500 apiece.

Persons subject to U.S. jurisdiction who travel to Cuba (which includes foreign-born U.S. residents) without a license bear a “presumption of guilt” and may be required to show documentation that all expenses incurred were paid by a third party not subject to U.S. law.

Very few people ever have trouble coming back. Nonetheless, if Uncle Sam decides to go after you as a perceived offender, you’ll first receive a questionnaire and, if OFAC believes the law has been broken, a “pre-penalty notice” listing the amount of the proposed fine.

Trading with Cuba illegally is good for up to a US$55,000 fine under provisions of the Helms-Burton Act [11], plus up to US$250,000 under the Trading with the Enemy Act [12], but most demands for fines for individuals have been US$7,500.

If issued a penalty notice, you have 30 days to appeal. If the case is not settled out of court, it ostensibly goes before an administrative law judge, who can uphold or dismiss the penalty. However, since no judges are in place to adjudicate, anyone receiving a pre-penalty notice can effectively kill the action dead by requesting a hearing. The case isn’t closed. It will merely gather dust along with thousands of similar cases until such a time as a right-wing president may choose to reappoint judges, or a more liberal change in the law puts an end to all this anti-democratic nonsense.

Or you can simply choose to negotiate the potential fine. OFAC has demonstrated a history of settling for a standard $1,000 (instead of $7,500) for first-time offenders.

Meanwhile, fortunately, under the Obama administration [13], OFAC has refocused to more urgent priorities… Which means less headaches for the thousands of U.S. travelers who continue to slip into Cuba through Canada [14] or Mexico [15] or other third countries to savor the frisson of the forbidden and thumb their nose at this unconstitutional restriction on every U.S. citizen’s right to unrestricted travel.

Individuals who choose to circumvent U.S. law do so at their own risk and the author and publisher accept no responsibility for any consequences that may result from such travel.

How to Defend the Right to Travel:

• The National Lawyers Guild [16] (132 Nassau St., Suite 922, New York, NY 10038, tel. 212/679-5100) has a Cuba subcommittee that can aid in defending against enforcement actions.
• The Center for Constitutional Rights [17] (666 Broadway, New York, NY 10012, tel. 212/614-6464) is the primary institutional clearinghouse for legal information about the Cuba travel regulations and represents those who have been accused of violating the ban.

For a complete break-down on licensing requirements for travel to Cuba, or if you excited and ready to visit this fascinating Caribbean island, buy my Moon Handbook Cuba [18]--the most information-packed, traveler-friendly guidebook out there.

For further information on Havana, buy Moon Spotlight Havana [18].

For a literary take on Cuba, buy an autographed hardback copy of Mi Moto Fidel: Motorcycling Through Castro's Cuba [19] direct from me, the author.

Looking for the perfect coffee-table book gift item? Buy an autographed hardback copy of Cuba Classics: A Celebration of Vintage American Automobiles [20] direct from the author.

Disclosure: I occasionally accept free or discounted travel when it coincides with my editorial goals. However, my opinion is never for sale. The opinions you see in Cuba & Costa Rica Journal are my unbiased reflection of the good, the bad, and the ugly.

Learn more about Christopher P. Baker [20].