If you or your company has been added to the Specially Designated Nationals and Blocked Persons (SDN) List by the Office of Foreign Assets Control (OFAC) at the U.S. Department of the Treasury, it means that the United States of America has imposed economic sanctions on you. This can cripple your ability to do business, as U.S. persons – which includes U.S. citizens, U.S.-based companies, and any foreign company that has a physical presence within the U.S. – face huge penalties for associating with you.
Getting taken off the SDN list is extremely important, and may even be necessary for your company’s continued existence.
The OFAC lawyers at The Criminal Defense Firm advocate for foreign nationals and others who have been unjustifiably sanctioned by the U.S. With our savvy legal guidance and deep experience in this complex area of the law, The Criminal Defense Firm has a strong track record of successes in getting our clients cleared from the SDN list so they can reenter global trading markets.
It is Possible to Get Removed from the SDN List
One of the most important things to know about the process of getting removed from the SDN list – a process also known as clearance or officially as the Administrative Reconsideration Process – is that it does happen. OFAC is the federal agency that is charged with enforcing U.S. economic sanctions on foreign nationals. However, the agency is also aware that circumstances can change that eliminate the need for a party to be under embargo. Therefore, it has created a process for sanctioned parties to appeal their inclusion on the SDN list or to argue for their removal from it.
According to OFAC, this removal process leads to hundreds of individuals and corporations getting taken off the SDN list every year. However, the clearance process, which is found at 31 C.F.R. § 501.807, is opaque and removing a foreign national from the SDN list is largely up to OFAC’s discretion: There are so many factors that they consider when handling a removal request that they can justify virtually any decision that they make.
Unfortunately, OFAC’s decision is generally final. While you can appeal an adverse outcome in your removal case to federal court, judges are very hesitant to weigh in on international sanctions and will generally defer to OFAC’s decision.
Convincing OFAC that the sanctions against you are unjustified is critical.
Put our highly experienced team on your side
Brian J. Kuester
Former U.S. Attorney
Former DA
Amanda Marshall
Former U.S. Attorney
Local Counsel
Joe Brown
Former U.S. Attorney
& Former District Attorney
Local Counsel
John W. Sellers
Former Senior Trial Attorney
U.S. Department of Justice
Local Counsel
Linda Julin McNamara
Former Chief, DOJ Appeals
Local Counsel
Joanne Fine DeLena
Former Assistant U.S. Attorney
Local Counsel
Aaron L. Wiley
Former Federal Prosecutor
Local Counsel
Roger Bach
Former Special Agent (OIG)
Chris Quick
Former Special Agent (FBI & IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Ray Yuen
Former Supervisory Special Agent (FBI)
Dennis A. Wichern
Former Special Agent-in-Charge (DEA)
The 5 Keys for Getting Cleared
While each removal case is different, there are generally five important keys to success. They are:
- Determining why you were initially sanctioned
- Deciding what will be the best line of argument for your removal from the SDN
- Prepare and send the best application for removal that you can
- Effectively answer any follow-up questions that OFAC has for you
- Ace the interview, if necessary
The Criminal Defense Firm has OFAC lawyers who have helped clients in each of these steps to ensure the best possible outcome.
1. Figure Out Why You Are on the List
While it might seem obvious, reviewing the reason for your initial inclusion on the SDN list is an important first step to take. OFAC made a decision to impose sanctions on you, and persuading them that this decision was wrong or that it is no longer wise or necessary is what the removal process is all about.
While closely reading the press release announcing your sanctions is a good start, it is very important to think about whether there are any underlying motivations that may have been left unstated in the release: Economic sanctions are politically sensitive, so it is not uncommon for OFAC to be less than completely honest in its press release to the public. Even where it appears like the press release is the whole story, it can still be worth sending OFAC a Request for Administrative Record. This gives you access to the evidentiary memos that were created during the investigation that led to your sanctions, though there will likely be some redactions in them.
2. Determine the Best Grounds for Removal
Once you have ascertained why the sanctions were imposed, it can be easy to see what is going to be your best line of argument for being removed from the SDN. Some common ones are:
- Your inclusion on the SDN list is a result of mistaken identity
- You are no longer involved in the company that is sanctioned
- Your company has stopped the conduct that led to the sanctions being imposed
- The circumstances that supported the sanctions are no longer in play
Once you have selected the grounds that best support your removal request, you will need to gather evidence to back them up.
3. Prepare and Submit an Effective Application for Clearance
While the application for clearance is just the first official interaction that you will have with OFAC during the removal process, ideally it will also be the last one: The goal is to prepare and submit an application that is strong enough that it persuades OFAC to remove you from the SDN list without any further filings.
The application can be mailed or emailed to OFAC, and the agency typically acknowledges its receipt within seven business days, if it came via email, or within 15 business days, if it was sent by mail.
4. Answer Any Follow-Up Questions That OFAC Poses
If the application leaves any issues open or unresolved, OFAC will send a list of follow-up questions. Unfortunately, this can significantly delay the process. Generally, the questionnaire will be sent out within 90 days of the receipt of the application. For companies under economic sanction, that three month delay is huge. To make matters worse, if you do not adequately address the questions that OFAC has, there may be multiple rounds of questionnaires to handle before your removal request is finally resolved.
5. Win at the OFAC Interview
The removal process allows you to request a hearing with OFAC agents. In some cases, this can be a good right to invoke, as it gives you another opportunity to make your case for clearance.
Frequently Asked Questions About OFAC Removal and The Criminal Defense Firm
What if OFAC Rejects My Removal Application?
If you apply for removal from OFAC’s list of sanctioned foreign nationals but OFAC denies it, you have a few options.
One is to appeal the denial in federal court. However, federal judges are extremely hesitant to overrule OFAC’s decisions, as U.S. economic sanctions have national security interests and judges are wary of getting involved in something so political and international in scale.
A more common approach is to ask OFAC to reconsider their denial or to simply start the removal process over again. If you choose to restart the process, you will generally need to present new evidence to support your argument for removal, or change your tactics and adopt a new line of argument for clearance.
How Long Does the Removal Process Normally Take?
Most clearance applications take at least six months to get resolved by OFAC. However, poorly crafted applications for removal can significantly prolong the process, sometimes by multiple years, as they can take several rounds of follow-up questionnaires by OFAC to resolve. Getting skilled legal representation for the removal process can help you avoid delays and expedite the process.
If I Am Under Economic Sanctions, How Can I Hire a U.S. Lawyer?
When you are listed on the SDN, any U.S. person that does business with you is susceptible to steep penalties from OFAC. However, OFAC generally includes a specific license that allows you to get legal guidance for OFAC-related issues without exposing the law firm that you hire to those penalties. With that said, though, it is not uncommon for there to be issues with the payment, as financial institutions have shown a tendency to block transactions involving sanctioned parties regardless of a specific license in order to protect themselves from OFAC scrutiny or allegations of noncompliance. This is a situation that The Criminal Defense Firm is ready for.
Why Doesn't The Criminal Defense Firm Call Itself the Best OFAC Removal Firm in the States?
While The Criminal Defense Firm has a track record of successes in OFAC-related cases, including in getting foreign nationals cleared from the SDN so they can go back to business, and while our firm houses some exceptionally experienced lawyers, many of whom have prior experience within some of the same federal law enforcement agencies that investigate these cases, we still think that statements like these mean more when they come from our prior clients, rather than from us. You can read their testimonials here to get a better sense of the quality of our legal representation.
The Criminal Defense Firm: OFAC Lawyers for the Removal Process
Getting skilled and experienced legal representation for the removal or clearance process can drastically increase your odds of success and potentially shorten the amount of time that the application process takes. Call The Criminal Defense Firm at (866) 603-4540 or contact them online to get started on your removal case.