As an attorney who represents parties seeking to be delisted from the United States Department of the Treasury’s Office of Foreign Assets Control’s (“OFAC”) List of Specially Designated Nationals and Blocked Persons (“SDN List”) one of my most difficult tasks is understanding why a party was designated in the first place. In a majority of cases, the only guidance we have on a party’s designation comes from OFAC’s press release at the time of designation. These press release can be vague, and can include general statements such as “Mr. X is a well known drug trafficker who is involved in transporting narcotics all over the world.” Clearly, such general allegations do not give a party contesting their designation a lot to work with in terms of seeking to counter OFAC’s allegations.

In light of the foregoing, I have learned over the years of a variety of different areas that one needs to look at to successfully identify the cause of an SDN designation so that it may be properly addressed. Chief amongst these are the connections that the designated party may have to other people. If you think that sounds like a no-brainer, and a problem that is easily resolved by cutting ties, think again. The reason I say this is due to the fact that some OFAC SDN designations can be based purely on familial relationships, such as being the family member, spouse or dependent of a designated party.

To highlight what I mean, here is a list of Executive Orders pursuant to which the U.S. government can target a person for sanctions, and identify them OFAC SDN List, for merely being the family member, spouse, or dependent of an SDN:

1. Executive Order 13405-Belarus Sanctions Program: Basis of designation can arise from being a family member of a senior level government official who is determined to be engaged in public corruption;

2. Executive Order 13448-Burma Sanctions Program: Basis of designation can arise from being a spouse or dependent of party designated pursuant to Executive Order 13448;

3. Executive Order 13315-Iraq Sanctions Program: Basis of designation can arise being a family member of a senior official of the former Iraqi regime;

4. Executive Order 13441-Lebanon Sanctions Program: Basis of designation can arise from being a spouse or dependent child of any person designated pursuant to Executive Order 13441;

5. Executive Order 13348-Former Liberian Regime of Charles Taylor Sanctions Program: Basis of designation can arise from being an immediate family member of Charles Taylor;

6. Executive Order 13566-Libya Sanctions Program: Basis of designation can arise from being a spouse or dependent child of any person designated pursuant to Executive Order 13566;

7. Executive Order 13469-Zimbabwe Sanctions Program: Basis of designation can arise from being a spouse or dependent child of any person designated pursuant to Executive Orders 13288, 13391, or 13469; and

8. Executive Order 13391-Zimbabwe Sanctions Program: Basis of designation can arise from being, or having been, an immediate family member of a person designated pursuant to the Executive Order 13391.

So what is an SDN to do when their sole purpose for being placed on OFAC’s SDN List is their familial relationship to another SDN who does happen to be engaged in conduct warranting a designation? Well, obviously for the spouses the answer is simple: call a divorce lawyer if they really want to get off the list. Sure there is a trade-off with the whole ’til death do us part’ vow, and the fact that they may actually love the other SDN, but OFAC requires a change in circumstances to remove a party, and since the designation was based on marriage there’s only one way to end that.

For the children and other family members it is a little bit more difficult. One potential strategy could be demonstrating estrangement from the SDN designated party, however, that wouldn’t lead to an automatic extinguishment of the basis of designation. Indeed, even in certain programs, Zimbabwe for example, even if there was a definite way to remove a familial connection, the law allows for the designation of parties that were previously immediate family members of a person designated under Executive Order 13391, although I’m still not entirely clear on how one could previously be an immediate family, unless the country in which the party resides has some laws regarding emancipation from family members.

As such, OFAC retains broad discretion to list and remove parties from the SDN List even when the reason for placement on that list is the actions of another who they are related to, and from whom they cannot separate themselves. OFAC’s sanctions designations have always been touted as measures designed to compel a change in behavior, and not as punishment. Unfortunately, the way the law is written in some of these programs could lead to circumstances contrary to that policy. In OFAC’s defense, however, I will say that it has been my understanding that they will not use that designation criteria without some involvement by the family member in conduct that warrants designation outside of the mere familial relationship. That’s good to know, because if one were to go by the black letter of the law alone, there would be a number of new designees on the OFAC SDN List with no way out.