The OFAC Sanctions List – Keys for Getting Removed

Office of Foreign Asset Control (OFAC) sanctions can have significant financial, reputational, and legal consequences. Individuals and organizations have no control over OFAC’s decision to issue sanctions; and, in many cases, individuals and organizations won’t learn that they are facing OFAC sanctions until it is too late.

But, while it may not be possible to proactively avoid OFAC sanctions, it is possible to get OFAC sanctions removed.

OFAC has established procedures and guidelines for seeking sanctions removal. For Specially Designated Nationals (SDNs) and other sanctioned parties, seeking OFAC sanctions removal is a multi-step process that requires a strategic approach and skilled legal representation. This article provides an overview of some of the key steps involved.

7 Steps Involved in Seeking OFAC Sanctions List Removal

If you (or your organization) is subject to OFAC sanctions, what are the keys for getting removed? Here are seven of the key steps involved in seeking OFAC sanctions list removal:

Step #1: Determine Why You (or Your Organization) is On the Sanctions List

One of the first steps you will want to try to take is to determine why you (or your organization) is on an OFAC sanctions list. OFAC places individuals and organizations on its SDN list and other sanctions lists for a variety of different reasons; and, in order to successfully seek removal, you need to know why you (or your organization) is listed.

One of the first places to look is your (or your organization’s) sanctions listing. This listing should specify the OFAC sanctions program under which you (or your organization) has been deemed “blocked.” In some cases, this will be all of the information you need; but, in others, it will be necessary to dig deeper.

Based on the circumstances surrounding your (or your organization’s) listing, your counsel may be able to discern why OFAC has imposed sanctions. If additional information is needed, your counsel may be able to request this information from OFAC informally before filing your removal application; and, if not, your counsel will be able to be able to obtain this information through the discovery process after filing.

Step #2: Determine What Grounds You Have to Seek Sanctions List Removal

Once you know why you (or your organization) has been sanctioned, then you can shift your focus to determining what grounds you have to seek sanctions list removal. OFAC’s regulations specify several grounds for removal, including:

• Mistaken identity or insufficient basis for inclusion on the sanctions list (i.e., you (or your organization) should not have been sanctioned)
• The justification for OFAC’s imposition of sanctions no longer applies
• Proposing remedial steps to negate the basis for OFAC’s sanctions
• Sale or divestiture of the business entity, division, or relationship that triggered OFAC’s sanctions (or death of an individual whose affiliation triggered OFAC’s sanctions)
• Good behavior that warrants removal from OFAC’s sanctions list

Proving each of these grounds for removal requires clear evidence that is sufficient to convince OFAC that the imposition of sanctions is no longer necessary to protect national security or promote the United States’ foreign policy objectives. While OFAC promotes its “willingness to remove persons from the SDN List [and other sanctions lists] consistent with the law,” protecting national security and promoting U.S. foreign policy are ultimately its top priorities. As a result, the burden rests with parties seeking OFAC sanctions list removal to prove that immediate removal is warranted.

Step #3: Work With Your Counsel to Prepare the Sanctions List Removal Petition

OFAC advises that any SDN or other sanctioned party seeking removal should “simply write to OFAC and request removal.” Of course, as a practical matter, seeking removal from an OFAC sanctions list is much more complicated. The process begins with sending a written petition to OFAC by mail or email. According to OFAC, a petition for removal should include:

• The sanctioned party’s name and contact information;
• The date of the relevant OFAC listing action; and,
• A request for reconsideration of OFAC’s designation (“including a detailed description of why the listed person should be removed”).

OFAC also accepts additional evidence as well as written arguments explaining why “an insufficient basis exists for the listing or that the circumstances resulting in the listing no longer apply.” While not required in order to submit a valid petition for removal, submitting supporting evidence and arguments will generally be necessary to convince OFAC that reconsideration of its listing determination is warranted.

Step #4: Work With (Rather Than Against) OFAC During the Process

When seeking removal from an OFAC sanctions list, it is generally advisable to try to work with (rather than against) OFAC. A cooperative approach will often prove beneficial, particularly when the grounds for removal are clear. Listed parties seeking removal have the right to take limited discovery if they need documentation from OFAC to prove the grounds for removal, and relying on your counsel to communicate with OFAC agents on your (or your organization’s) behalf can help to facilitate productive, good-faith discussions focused on ensuring that both you and OFAC are satisfied with the outcome of the process.

In many cases, OFAC will issue a questionnaire seeking specific information regarding a listed party’s request for removal. If you receive one of these questionnaires, it will be important to respond thoroughly and honestly. Apparent attempts to shield information from OFAC will raise red flags—and will frequently lead to denial of listed parties’ requests.

Step #5: Thoroughly Prepare for Your OFAC Hearing or Interview (if Applicable)

When you file your (or your organization’s) petition for removal with OFAC, you have the right to request a hearing or interview. While individual circumstances vary, it will often be prudent to reserve as many opportunities to communicate with OFAC’s agents as possible. If you request and schedule a hearing or interview, you will want to work with your counsel to prepare thoroughly. You should rely on your counsel to anticipate potential questions and concerns, formulate responses, and come up with a strategy for guiding the hearing or interview toward a favorable resolution.

While thorough preparation is critical, it is also important to attend the hearing or interview with your counsel present. This way, your counsel can clarify any ambiguities and interject if things start to go sideways. If you engage experienced OFAC counsel, your counsel should be familiar with the hearing and interview processes, and he or she should be able to assert control over the hearing or interview process.

Step #6: Respond to OFAC’s Requests and Follow Up as Necessary

Along with issuing a questionnaire, OFAC may issue various other requests for information when evaluating a listed party’s request for removal. It is important to respond to these requests promptly—and, again, as comprehensively and accurately as possible. Parties seeking removal from OFAC sanctions lists should also rely on their counsel to determine when follow-up is necessary, and to follow up on their behalf without engendering hostilities or frustrating the OFAC agents involved.

Ultimately, sanctioned parties seeking removal need OFAC to rule in their favor. This is critical to keep in mind. The easier a sanctioned party can make it for OFAC to rule in their favor, the more likely they are to have their sanctions lifted.

Step #7: Be Prepared to Face Challenges Even After Your OFAC Sanctions List Removal

Finally, for many individuals and organizations that are subject to OFAC sanctions, getting removed from OFAC’s sanctions list is not the end of the process. Even once an individual or organization has been removed, banks and other commercial parties may still be hesitant to conduct business.

Here, too, having experienced counsel is key. If your (or your organization’s) counsel can explain the removal process—and engage with banks and other commercial parties’ counsel as necessary—this can help facilitate the rebuilding of relationships and execution of transactions that may otherwise prove difficult. Due to the substantial risks of violating OFAC sanctions, compliance-conscious parties will understandably err on the side of caution. But, once a party has been removed from OFAC’s sanctions list, additional caution is no longer necessary.

Since seeking OFAC sanctions list removal is a process that takes time, if you are interested in seeking removal, it is in your best interests to speak with an experienced OFAC lawyer as soon as possible. Dealing with unnecessary OFAC sanctions can be both frustrating and costly, and eliminating unnecessary sanctions as quickly and efficiently as possible is generally the best path forward.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Speak with an OFAC Lawyer at Oberheiden P.C. in Confidence

If you would like to know more about the OFAC sanctions list removal process, or if you would like to discuss your (or your organization’s) eligibility for removal with an experienced OFAC lawyer, we invite you to get in touch. We represent SDNs and other listed parties throughout the United States and in jurisdictions around the world. To arrange a confidential and complimentary initial consultation at Oberheiden P.C., please call 888-680-1745 or tell us how we can reach you online today.