Judith Jeltsje Pietersen and Daniel Gerhard Brown v. United States Department of State

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 2025 Decided May 30, 2025
No. 24-5092
J UDITH J ELTSJE P IETERSEN AND DANIEL GERHARD B ROWN,
APPELLANTS
v.
UNITED S TATES D EPARTMENT OF S TATE, 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: P ILLARD and P AN, Circuit Judges, and E DWARDS ,
Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
Dissenting opinion filed by Circuit Judge P AN .
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. B ACKGROUND
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

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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.

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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

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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

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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”

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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.

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P AN , 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

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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-

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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.

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