Judith Pietersen v. DOS

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2025 Decided May 30, 2025

No. 24-5092

JUDITH JELTSJE PIETERSEN AND DANIEL GERHARD BROWN,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF STATE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-03544)

Carl W. Hampe argued the cause for appellants. With him

on the briefs were Daniel P. Pierce and Daniel D. Schaeffer.

Cara E. Alsterberg, Senior Litigation Counsel, U.S.

Department of Justice, argued the cause for appellees. With

her on the brief were Brian M. Boynton, Principal Deputy

Assistant Attorney General, at the time the brief was filed, and

David M. McConnell, Director.

Before: PILLARD and PAN, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Dissenting opinion filed by Circuit Judge PAN.

EDWARDS, Senior Circuit Judge: The Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., requires

“foreign nationals seeking entry into the United States [to]

undergo a vetting process to ensure that they satisfy the

numerous requirements for admission.” Trump v. Hawaii, 138

S. Ct. 2392, 2403 (2018). Typically, a noncitizen must obtain a

visa to be admitted to the United States. Dep’t of State v.

Muñoz, 144 S. Ct. 1812, 1818 (2024). The INA further

provides, in relevant part, that a noncitizen is inadmissible and

ineligible to receive a visa if that individual “by fraud or

willfully misrepresenting a material fact, seeks to procure (or

has sought to procure or has procured) a visa, other

documentation, or admission into the United States.” 8 U.S.C.

§ 1182(a)(6)(C)(i). The INA also grants consular officers

authority to review applications for visas. 8 U.S.C. § 1104(a).

And the State Department Foreign Affairs Manual (“Manual”

or “FAM”) instructs consular officers to base inadmissibility

determinations on a “reason to believe” that an applicant has

willfully misrepresented a material fact. See 9 FAM 302.9-

4(B)(3)(g)(l)(b).

This case concerns the ongoing saga of Judith Jeltsje

Pietersen, a Dutch citizen, and her fiancé, Daniel Gerhard

Brown, an American citizen (collectively, “Appellants”), who

are trying to arrange for Pietersen to get a visa so that she and

Brown can get married and be together in the United States.

Pietersen is a horse trainer and expert dressage rider. As part of

a visa waiver program, which authorizes citizens of

participating countries to travel to the United States as a visitor

for stays of 90 days or less without needing a visa, Pietersen

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has regularly traveled to the United States. While in the

country, Pietersen would occasionally assist a friend and

colleague with horse-riding clinics in Utah and receive nominal

compensation in exchange for her assistance. In February 2020,

however, U.S. Customs and Border Protection (“CBP”) denied

Pietersen entry into the United States. Although Pietersen told

CBP officers that her primary purpose for visiting the country

was a skiing trip in Colorado, CBP claimed that she had

previously engaged in unlawful employment while in the

United States. As a result, CBP denied Pietersen entry into the

country for a lack of a valid unexpired visa.

Pietersen and Brown have made several attempts to obtain

a visa for Pietersen. Their most recent request has been for a

“K-1” visa, which is available to individuals who seek to enter

the United States to marry a U.S. citizen. See 8 U.S.C.

§ 1101(a)(15)(K)(i). However, consular officers have denied

her K-1 visa applications based on the “willfully

misrepresenting a material fact” ground of inadmissibility

under 8 U.S.C. § 1182(a)(6)(C)(i). Essentially, consular

officers have claimed that Pietersen engaged in unauthorized

work while in the country under the Visa Waiver Program and

that this constituted willful misrepresentation proscribed by the

INA.

In November 2022, Appellants filed suit in District Court

against the U.S. Department of State and State Department

officials (collectively, “State Department”) to challenge the

denials of Pietersen’s visa applications and the Manual

guidance. They alleged, inter alia, that the consular officers

failed to meaningfully review Pietersen’s applications, that the

officers erroneously applied a “reason to believe” standard to

find her inadmissible, and that the “reason to believe” standard

contravenes the INA.

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The State Department moved to dismiss the complaint for

a lack of subject matter jurisdiction and for failure to state a

claim. The District Court granted the State Department’s

motion, holding that the consular nonreviewability doctrine

barred Appellants’ claims and that the claims were otherwise

meritless. See Pietersen v. U.S. Dep’t of State, No. 22-cv-3544,

2024 WL 1239706, at *5-8 (D.D.C. Mar. 21, 2024).

On appeal, Appellants principally argue that the Manual’s

“reason to believe” standard that was applied to deny

Pietersen’s visa applications contravenes the INA. They no

longer dispute that their challenges to Pietersen’s prior visa

denials are unreviewable under the consular nonreviewability

doctrine; instead, they focus their appeal on “the improper

future application of [the Manual’s] erroneous guidance.” Br.

for Appellants 18.

For the reasons explained below, we reverse and remand

the case for further proceedings. First, we reverse the District

Court’s holding that the doctrine of consular nonreviewability

bars Appellants’ Administrative Procedure Act (“APA”) claim

for prospective relief. When plaintiffs launch forward-looking

challenges to the lawfulness of regulations or policy governing

consular decisions, courts may review them “to assure that the

executive departments abide by the legislatively mandated

procedures.” Int’l Union of Bricklayers & Allied Craftsmen v.

Meese, 761 F.2d 798, 801 (D.C. Cir. 1985). Second, we have

real doubts regarding the viability of the State Department’s

“reason to believe” standard, and especially the Department’s

reliance on 8 U.S.C. § 1201(g) to support the application of the

standard in a case of this sort. Given the unsatisfactory briefing

of this issue by both parties, we vacate the District Court’s

alternative holding based on section 1201(g) and remand for

further proceedings to determine whether the INA authorizes

the challenged FAM guidance.

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I. BACKGROUND

A. Legal Background

“The Immigration and Nationality Act sets forth

conditions for foreign nationals to receive visas allowing entry

into the United States.” ITServe All., Inc. v. U.S. Dep’t of

Homeland Sec., 71 F.4th 1028, 1031 (D.C. Cir. 2023) (citation

omitted). Importantly, the political branches control visa

decisions. Muñoz, 144 S. Ct. at 1818. Specifically, Congress

establishes “the terms for entry [to the United States], and the

Department of State implements those requirements at United

States Embassies and consulates in foreign countries.” Id. As

relevant here, “Congress has streamlined the visa process for

noncitizens with immediate relatives in the United States.” Id.

This process consists of the citizen-relative filing a petition

with U.S. Citizenship and Immigration Services (“USCIS”) to

have the noncitizen designated as an immediate relative; the

noncitizen then applying for a visa if USCIS approves the

petition; and the noncitizen submitting written materials and

interviewing with a consular officer abroad. Id.

As noted above, the INA “grants consular officers

‘exclusive authority to review applications for visas,

precluding even the Secretary of State from controlling their

determinations.’’’ Baan Rao Thai Rest. v. Pompeo, 985 F.3d

1020, 1024 (D.C. Cir. 2021) (citation omitted); see 8 U.S.C.

§§ 1104(a), 1201. As such, “[i]n view of the political nature of

visa determinations and of the lack of any statute expressly

authorizing judicial review of consular officers’ actions, courts

have applied what has become known as the doctrine of

consular nonreviewability.” Saavedra Bruno v. Albright, 197

F.3d 1153, 1159 (D.C. Cir. 1999). That doctrine ‘‘shields a

consular official’s decision to issue or withhold a visa from

judicial review.’’ Baan Rao, 985 F.3d at 1024. That said, there

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are two “narrow exceptions” to the doctrine: (1) when judicial

review is expressly authorized by statute, or (2) if a

noncitizen’s exclusion burdens an American citizen’s

constitutional rights. Colindres v. U.S. Dep’t of State, 71 F.4th

1018, 1021 (D.C. Cir. 2023) (citation omitted). However,

judicial review is confined “to whether the officer gave a

‘facially legitimate and bona fide reason’ for denying a visa.”

Id. (quoting Kleindienst v. Mandel, 408 U.S. 753, 770 (1972)).

Moreover, 8 U.S.C. § 1182 “defines the universe of aliens

who are admissible into the United States (and therefore

eligible to receive a visa).” Trump, 138 S. Ct. at 2414. It

provides, inter alia, that a noncitizen is inadmissible and

ineligible to receive a visa if that individual “by fraud or

willfully misrepresenting a material fact, seeks to procure (or

has sought to procure or has procured) a visa, other

documentation, or admission into the United States.” 8 U.S.C.

§ 1182(a)(6)(C)(i). Relatedly, section 1201 governs consular

officers’ issuance of visas. See id. § 1201. In pertinent part, it

mandates that no visa shall be issued to a noncitizen if “the

consular officer knows or has reason to believe that such alien

is ineligible to receive a visa or such other documentation under

section 1182 of this title, or any other provision of law.” Id.

§ 1201(g).

Finally, the State Department’s Foreign Affairs Manual

“contains directives and guidance … based on U.S.

immigration law and regulations” for consular officers making

visa decisions, including the grounds of ineligibility for a visa.

9 FAM 101.1-1; see 9 FAM 302; 22 C.F.R. § 5.5 (2024)

(discussing the Manual). The Manual provision at issue in this

case offers guidance for finding a noncitizen ineligible based

on the willful misrepresentation ground in section 1182. See 9

FAM 302.9-4. It explains that, to determine that a noncitizen

made a misrepresentation at the time of the visa application or

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admission to the United States, a consular officer “must make

a finding that there is direct or circumstantial evidence

sufficient to meet the ‘reason to believe’ standard, which

requires more than mere suspicion and is akin to probable

cause.” 9 FAM 302.9-4(B)(3)(g)(1)(b).

B. Factual and Procedural Background

Pietersen, a citizen and national of the Netherlands, has

regularly traveled to the United States under the Visa Waiver

Program. The program, which is administered by the U.S.

Department of Homeland Security, “enables eligible citizens of

certain countries to travel to the United States for tourism or

business for stays of 90 days or less without obtaining a visa.”

Matar v. Transp. Sec. Admin., 910 F.3d 538, 541 (D.C. Cir.

2018) (citation omitted). To qualify for travel under the Visa

Waiver Program, individuals must receive travel authorization

through the Electronic System for Travel Authorization

(“ESTA”). 8 C.F.R. § 217.5 (2022); Matar, 910 F.3d at 541.

While in the United States, Pietersen has occasionally

assisted a friend with horse-riding clinics in Utah and received

nominal compensation for her work. In February 2020,

Pietersen traveled to the United States for a ski trip, but CBP

denied her entry into the country at the Minneapolis-St. Paul

International Airport for alleged unlawful employment.

Specifically, CBP claimed that, based on a social media page

showing her prior participation in the riding clinics, Pietersen

had engaged in unlawful employment. As a result, CBP

revoked her ESTA approval and denied her entry into the

country for a lack of a valid unexpired visa. Without that

approval, Pietersen needed to obtain a visa for any future

entries into the United States.

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When back in the Netherlands, Pietersen first applied for a

B-1/B-2 visa for travel to the United States for medical

appointments. This visa authorizes entry to the United States if

a noncitizen “ha[s] a residence in a foreign country which he

has no intention of abandoning and . . . is visiting the United

States temporarily for business or temporarily for pleasure.” 8

U.S.C. § 1101(a)(15)(B). Ultimately, following an interview, a

consular officer refused Pietersen’s application because she

purportedly lacked ties that would compel her to return to the

Netherlands.

Consequently, Pietersen and Brown decided that she

should pursue a K-1 visa. This visa permits entry to the United

States if a noncitizen “is the fiancée or fiancé of a citizen of the

United States … and … seeks to enter the United States solely

to conclude a valid marriage with the petitioner within ninety

days after admission.” 8 U.S.C. § 1101(a)(15)(K)(i). As the

first step in the process, Brown submitted Form I-129F,

Petition for Alien Fiancé(e), with USCIS in 2021, which

USCIS approved in 2022. Pietersen then attended an interview

with a consular officer at the U.S. Consulate in Amsterdam,

and that officer subsequently refused her K-1 visa application

on the grounds that she had committed a misrepresentation

under 8 U.S.C. § 1182(a)(6)(C)(i). On Pietersen’s second

attempt for a K-1 visa, a consular officer again refused her

application under section 1182(a)(6)(C)(i), stating that the

consulate viewed her earning money as a visitor under the Visa

Waiver Program as a misrepresentation.

Appellants subsequently filed an action in the District

Court against the State Department and State Department

officials for a variety of claims under the INA, Due Process

Clause of the Fourteenth Amendment, Mandamus Act, and

Declaratory Judgment Act. Specifically, they alleged that the

agency’s consular officers acted unlawfully by failing to

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review critical information that Pietersen submitted in support

of her K-1 visa applications, and by applying a “reason to

believe” standard to determine that she had committed a

misrepresentation. Appellants further claimed that the Manual

allows consular officers to find noncitizens inadmissible

simply if that officer has reason to believe that a noncitizen

willfully misrepresented a material fact – which, in their view,

contravenes the INA. As relief, Appellants sought, inter alia, a

declaration that the State Department’s failure to review

Pietersen’s proffered evidence was unlawful, a declaration that

the Manual’s instruction on the misrepresentation ground of

inadmissibility is unlawful, vacatur of Pietersen’s visa refusals,

and an order directing the State Department to reconsider

Pietersen’s eligibility under the proper statutory standards.

The State Department moved to dismiss Appellants’

complaint for a lack of subject matter jurisdiction and for

failure to state a claim. The District Court granted the motion

and dismissed the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). Pietersen, 2024 WL 1239706, at *1. The

District Court rendered the following holdings in support of its

decision.

First, the court held that Brown had Article III standing

because he suffered a concrete injury from the denial of

Pietersen’s visa applications – namely, Pietersen’s exclusion

from entering the country interfered with his relationship with

his non-citizen fiancée. Id. at *4. However, the court did not

reach Pietersen’s standing since she sought the same relief as

Brown and Brown had standing. Id.

Second, the court concluded that the consular

nonreviewability doctrine barred Appellants’ claims, and that

none of the exceptions to the doctrine applied. Id. at *5. In

particular, the court explained that the doctrine precludes

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review of Pietersen’s visa denials and related claims regarding

the consular officer’s failure to consider probative information

and erroneous application of the “reason to believe” standard

because those claims cannot be distinguished from the visa

decision itself. Id. With respect to the doctrine’s exceptions, the

court found that Congress had not expressly authorized judicial

review of Appellants’ claims, nor did the denial of Pietersen’s

visa applications impermissibly burden Brown’s constitutional

rights. Id. at *7.

Third, the court rejected Appellants’ APA claim that the

Manual’s “reason to believe” standard violated the INA. Id. at

*6. Specifically, it reasoned that Appellants failed to plead an

APA claim, and that the consular nonreviewability doctrine

also forecloses challenges to the validity of underlying

regulations. Id. Notwithstanding these issues, the court held

that the claim failed on the merits because “8 U.S.C. § 1201(g),

which renders § 1182(a)(6)(C)(i) operative, does contain

‘reason to believe’ language,” and, thus, the Manual’s standard

“tracks the statutory text.” Id.

Fourth, the court likewise rejected Appellants’ argument

that the INA’s delegation of the power to grant or refuse visas

to consular officers violates the Constitution’s Take Care

Clause. Id. The court found that Appellants failed to plead a

Take Care Clause claim, and that reviewing such a claim would

offend the consular nonreviewability doctrine. See id.

Appellants now appeal the District Court’s judgment.

However, they have abandoned their challenges to Pietersen’s

prior visa denials as foreclosed by the consular

nonreviewability doctrine. The crux of their appeal is that the

Manual’s instruction to consular officers to base

inadmissibility determinations on a “reason to believe” that an

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applicant made a willful misrepresentation is contrary to the

INA.

II. ANALYSIS

A. Standard of Review

We review a dismissal for failure to state a claim de novo.

Florio v. Gallaudet Univ., 119 F.4th 67, 73 (D.C. Cir. 2024).

To defeat a motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Id. (citation omitted). Put

differently, a complaint must “contain[] ‘factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’’’ Sanchez v.

Off. of the State Superintendent of Educ., 45 F.4th 388, 395

(D.C. Cir. 2022) (citation omitted).

In addition, under the APA, we set aside agency action that

is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). An

agency’s action is contrary to law “[i]n the absence of statutory

authorization for its act.” Hikvision USA, Inc. v. FCC, 97 F.4th

938, 944 (D.C. Cir. 2024) (citations omitted). In other words,

an agency cannot adopt regulations or policies “contrary to

statute, nor exercise powers not delegated to it by Congress.”

Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447, 1450 (D.C.

Cir. 1994).

B. Standing

As a threshold matter, the State Department argues that

Appellants lack standing to advance their APA claim because

their injury from the improper future application of the

12

Manual’s guidance is speculative and hypothetical. We

disagree.

To establish Article III standing, a plaintiff must show “(i)

that he suffered an injury in fact that is concrete, particularized,

and actual or imminent; (ii) that the injury was likely caused by

the defendant; and (iii) that the injury would likely be redressed

by judicial relief.” Jibril v. Mayorkas, 101 F.4th 857, 867 (D.C.

Cir. 2024) (quoting TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2203 (2021)). This case concerns the injury-in-fact

element. Where a plaintiff seeks declaratory or injunctive

relief, he must demonstrate either that he “is suffering an

ongoing injury” or that he “faces an immediate threat of

injury.” Animal Legal Def. Fund, Inc. v. Vilsack, 111 F.4th

1219, 1227 (D.C. Cir. 2024) (internal quotation marks and

citation omitted).

Here, Brown is suffering an ongoing injury from the

exclusion of his fiancée Pietersen from entering the United

States. Importantly, the Supreme Court has recognized that an

American citizen “who has ‘a bona fide relationship with a

particular person seeking to enter the country can legitimately

claim concrete hardship if that person is excluded.’’’ Trump,

138 S. Ct. at 2416 (cleaned up) (citation omitted). Furthermore,

Appellants claim that the State Department has and will

continue to apply the Manual’s guidance to Pietersen’s visa

applications; as such, it is apparent that Brown’s injury is

traceable to the challenged State Department guidance and that

his injury is likely redressable through a declaration that the

guidance is unlawful. That is so even if applying guidance

consistent with the INA does not make it likely that the State

Department will issue Pietersen a visa. See Summers v. Earth

Island Inst., 555 U.S. 488, 497 (2009) (noting that

redressability is relaxed for concrete injuries stemming from

procedural violations); accord Ctr. for Biological Diversity v.

13

EPA, 861 F.3d 174, 184 (D.C. Cir. 2017) (“Establishing

causation in the context of a procedural injury requires a

showing of two causal links: one connecting the omitted

procedural step to some substantive government decision that

may have been wrongly decided because of the lack of that

procedural requirement and one connecting that substantive

decision to the plaintiff's particularized injury.” (internal

quotation marks and alterations omitted)).

Because Brown has established standing and Pietersen

seeks the same relief as him, we decline to consider whether

Pietersen would separately have standing. See J.D. v. Azar, 925

F.3d 1291, 1323 (D.C. Cir. 2019) (“It is settled that in a case

involving joined, individual plaintiffs bringing a shared claim

seeking a single remedy, Article III’s case-or-controversy

requirement is satisfied if one plaintiff can establish injury and

standing.”).

Accordingly, Appellants clearly have standing to challenge

the Manual’s guidance as contrary to law.

C. APA Claim

Turning to the merits, Appellants contend that the District

Court erred in dismissing their APA claim as barred by the

consular nonreviewability doctrine, and by holding that the

Manual’s guidance comports with the INA based on 8 U.S.C.

§ 1201(g). We agree with Appellants on the first point, but we

will remand to allow the District Court to give further

consideration to the second point.

To start, Appellants sufficiently raised a forward-looking

APA challenge to the Manual guidance before the District

Court. Specifically, Appellants’ amended complaint alleges

that the State Department violated the INA “by instructing its

14

consular officers that they could find[] an alien inadmissible

based on such officer’s mere ‘reason to believe’ that such alien

had willfully misrepresented a material fact, when in fact the

statute requires a consular officer to find that the willful

misrepresentation had in fact occurred.” Joint Appendix

(“J.A.”) 47. Tellingly, Appellants also sought a declaration that

the Manual instruction is unlawful. These allegations readily

suffice under the notice pleading standard of Federal Rule of

Civil Procedure 8, which merely requires that a plaintiff’s

pleadings provide “the defendants fair notice of what the claim

is and the grounds upon which it rests.’’ Jones v. Kirchner, 835

F.3d 74, 79 (D.C. Cir. 2016) (citation omitted).

In this case, Appellants’ complaint gave the State

Department fair notice of their claim that the Manual’s

guidance is contrary to statute – a hallmark APA claim. Indeed,

in Appellants’ opposition to the State Department’s motion to

dismiss, they make clear that they are also seeking prospective

relief regarding the State Department’s future application of the

guidance in future visa applications. The District Court

addressed Appellants’ APA claim and rejected it as meritless.

Pietersen, 2024 WL 1239706, at *6. It is also noteworthy that,

in their briefs to this court, Appellants explicitly invoked the

APA and the State Department never doubted that Appellants’

action includes a claim under the APA.

Furthermore, the consular nonreviewability doctrine does

not foreclose Appellants’ APA claim. To the contrary, it is well

settled that when plaintiffs pursue forward-looking challenges

to the lawfulness of regulations or policies governing consular

decisions, courts may review them “to assure that the executive

departments abide by the legislatively mandated procedures.”

See Int’l Union of Bricklayers, 761 F.2d at 801 (citations

omitted) (determining that the plaintiffs’ claim that the

Immigration and Naturalization Service’s internal guidance

15

violated the INA was reviewable). As explained above, that is

the case here. Rather than contesting particular visa

determinations by a consular officer, Appellants confine their

challenge to the lawfulness of the State Department policy.

Therefore, we reverse the District Court’s holding on this

ground.

Moreover, as to the merits of Appellants’ claim, the District

Court’s discussion of the issue is spare and the briefing before

us does little to clarify the issue. In a nutshell, Appellants claim

that the Manual’s guidance impermissibly permits consular

officers to deem an applicant inadmissible and permanently

ineligible to receive a visa based on a “reason to believe” that

the applicant made a willful misrepresentation. They point out

that other provisions in 8 U.S.C. § 1182 expressly allow for

inadmissibility determinations based on a “reason to believe”

that a noncitizen has committed some action, while the willful

misrepresentation provision that is at issue here omits such

language. Compare 8 U.S.C. § 1182(a)(2)(C) (trafficking in

controlled substances); id. § 1182(a)(2)(H) (trafficking in

persons); id. § 1182(a)(2)(I) (money laundering), with id.

§ 1182(a)(6)(C)(i) (willfully misrepresenting a material fact).

On the other hand, the District Court and the State

Department believe that the Manual’s guidance is consistent

with the INA because they view 8 U.S.C. § 1201(g) as

containing a “reason to believe” standard which imposes that

standard on all inadmissibility grounds in section 1182,

including the contested willfully misrepresenting a material

fact ground. We are skeptical of this view.

It is far from clear that section 1201(g) reaches as far as the

District Court and the State Department suggest. First, by its

terms, section 1201(g) does not provide a cross-cutting

standard of proof applicable to all section 1182 grounds of

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inadmissibility; instead, it appears merely to refer to a consular

officer’s “reason to believe” that a noncitizen already “is

ineligible” under some subsections of 1182. See 8 U.S.C.

§ 1201(g) (stating that a consular officer cannot issue a visa to

a noncitizen if “the consular officer knows or has reason to

believe that such alien is ineligible to receive a visa . . . under

section 1182 of this title”). Put differently, it seems to require

a consular officer who suspects but has not yet verified that an

inadmissibility determination has been made under section

1182(a) – and according to the standard of proof specified

therein – to withhold a visa on that ground until the alleged

basis of ineligibility can be confirmed.

Second, other inadmissibility provisions of section 1182

undermine the State Department’s position because they

provide distinct ways in which certain grounds of

inadmissibility are to be established. See, e.g., 8 U.S.C.

§ 1182(a)(1)(A)(iii) (providing that some health-related

grounds of inadmissibility are to be determined by regulations

prescribed by the Secretary of Health and Human Services in

consultation with the Attorney General); id. § 1182(a)(2)(A)(i),

(B) (providing that some criminal-related grounds of

inadmissibility are to be determined by a criminal conviction).

Accordingly, it is plausible that section 1201(g) authorizes

a consular officer to pause and withhold a visa based on a

“reason to believe” that an applicant, for example, has a

hazardous health condition; yet it defies logic to conclude – as

the State Department’s position suggests – that section 1201(g)

allows that officer to determine section 1182(a)(1)

inadmissibility on that ground when another standard is listed

in that section. Indeed, the State Department fails to explain

how its view of section 1201(g) as supplying an overarching

standard for section 1182 inadmissibility harmonizes with

section 1182’s express provision of a “reason to believe”

17

standard to establish some grounds, different express standards

to establish others, and no specification as to some grounds.

In sum, we are not confident that Congress authorized a

consular officer unilaterally to deem a person to have made

willful misrepresentations and thereby trigger permanent

ineligibility for a visa based only on an implicit “reason to

believe” standard – especially considering its decision to make

that standard explicit for other categories of noncitizens posing

elevated risks to national interests. Given the parties’

unsatisfactory briefing on this issue, further evidence,

argument, and deliberation are necessary before a final

decision can be reached. We therefore vacate the District

Court’s alternative holding based on section 1201(g) and

remand for further proceedings.

D. Take Care Clause Claim

Finally, Appellants argue that the District Court’s

conception of the consular nonreviewability doctrine as barring

their Take Care Clause claim violates the Take Care Clause

because it insulates the Manual’s application from review by

the Secretary of State or the President. Notably, before the

District Court, Appellants asserted that the State Department

issued unlawful policies to its consular officers, which, in light

of the INA’s delegation of visa decisions to consular officers

without review, violates the Take Care Clause.

We decline to address Appellants’ Take Care Clause

challenge. Because we have concluded that the consular

nonreviewability doctrine does not preclude Appellants’ APA

claim about the Manual, there is no longer a basis for their Take

Care Clause challenge to the District Court’s reliance on the

doctrine.

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III. CONCLUSION

For the reasons set forth above, we reverse the District

Court’s judgment and remand for further proceedings to

determine whether the INA authorizes the challenged Manual

provision.

So ordered.

PAN, Circuit Judge, dissenting:

Appellants Judith Pietersen and her American fiancé,

Daniel Brown, filed a Complaint in the district court

challenging the State Department’s denial of Pietersen’s K-1

nonimmigrant visa applications. Although the doctrine of

consular nonreviewability generally shields visa denials from

judicial review, appellants claimed to fall within an exception

for denials that implicate the constitutional rights of an

American citizen and were “made in bad faith, not facially

legitimate, and not bona fide.” First Am. Compl. (“Compl.”)

¶ 25 (J.A. 31–32) (citing Kleindienst v. Mandel, 408 U.S. 753,

770 (1972)); see also Baan Rao Thai Rest. v. Pompeo, 985 F.3d

1020, 1024 (D.C. Cir. 2021) (“Consular nonreviewability

shields a consular official’s decision to issue or withhold a visa

from judicial review, at least unless Congress says otherwise.”).

The district court determined that the asserted exception

did not apply and dismissed the case based on consular

nonreviewability. My colleagues reverse that judgment and

remand for the district court to consider whether certain policy

guidance in the State Department’s Foreign Affairs Manual

(FAM) violates the Administrative Procedure Act (APA). I

respectfully dissent because I believe that appellants have not

preserved an APA claim for appeal. See Gov’t of Manitoba v.

Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent

exceptional circumstances, a party forfeits an argument by

failing to press it in district court.”).

Appellants’ Complaint brought claims under (1) the

Immigration and Nationality Act (INA), (2) “statutory and

procedural due process protections,” (3) the Mandamus Act,

and (4) the Declaratory Judgment Act. Compl. ¶¶ 112–32 (J.A.

46–50). It asserted no claim under the APA. The Complaint

referred to the FAM only to contend that the exception to

2

consular nonreviewability should be applied in Pietersen’s

case: The Prayer for Relief requested a declaration that the

“inaccurate description of the ‘willful misrepresentation’

ground of inadmissibility in [the] Foreign Affairs Manual [is]

in bad faith, not bona fide or facially legitimate, and therefore

unlawful.” Id. at 26 (J.A. 50) (emphasis added); see Mandel,

408 U.S. at 770. Moreover, the Complaint did not ask the court

to set aside any agency policy but instead focused on case-

specific relief for Ms. Pietersen. Id. at 26 (J.A. 50) (requesting

“vacat[ur of] Ms. Pietersen’s recent visa refusals,” and an order

directing the State Department to “redetermine her eligibility

based on the proper statutory standards”).

The government moved to dismiss the Complaint,

asserting consular nonreviewability. In opposing the motion to

dismiss, appellants mentioned the APA, but did not properly

raise or brief an APA claim. Instead, appellants argued that the

FAM guidance regarding “willful misrepresentation” was

unlawful as applied to Ms. Pietersen’s case, and that the court

should award relief “as to State Department’s future conduct as

to Plaintiff in the context of future visa interviews.” J.A. 105.

The entirety of appellants’ oblique reference to the APA was

as follows: “Even if this Court finds that it cannot correct the

error as to Plaintiff’s prior denials, striking erroneous guidance

and instructing the agency to comport with the law in the future

is a quintessential APA function that cannot plausibly be barred

by consular nonreviewability.” J.A. 108. Appellants thus did

not present the statutory argument thoughtfully analyzed by my

colleagues as an APA claim.

The district court understood that the Complaint

“contain[ed] no APA claim,” and noted that despite appellants’

passing reference to the APA in their briefing, the court would

not “entertain [appellants’] APA challenge to the ‘reason to

believe’ standard.” Pietersen v. Dep’t of State, No. 22-cv-

3

3544, 2024 WL 1239706, at *6 (D.D.C. Mar. 21, 2024). While

the district court nonetheless opined, without the benefit of

briefing, that “even if [appellants] had alleged such a claim,” it

would lack merit, the court’s decision turned on its view that

appellants did not plead an APA claim. Id. Although my

colleagues suggest that the brief statements of the district court

demonstrate that the Complaint gave the government fair

notice of an APA challenge to the FAM policy, Maj. Op. at 14,

appellants themselves acknowledge that they did not present an

APA claim: Appellants ask us to remand to the district court

“with instructions that that court allow Plaintiffs below to

amend their complaint to present their claims against the FAM

instruction.” Pietersen Br. 30 (emphasis added); see also id. at

7 (stating that appellants brought suit under the INA and Due

Process Clause, but “[i]n later briefing, the parties raised

issues concerning the Take Care Clause and the Administrative

Procedure Act” (emphasis added)).

Under the circumstances, I believe that appellants did not

bring an APA claim in the district court and have conceded as

much. Nor can I discern any “extraordinary circumstances”

that prevented appellants’ able counsel from properly making

the claim. Bernhardt, 923 F.3d at 179. I therefore would hold

that the APA issue is forfeited, and I would affirm the judgment

of the district court based on the doctrine of consular

nonreviewability. See Baan Rao Thai Rest., 985 F.3d at 1024.