Summary
This D.C. Circuit opinion reviews a challenge to the State Department’s Foreign Affairs Manual guidance, which applies a “reason to believe” standard to find visa applicants inadmissible for willful misrepresentation. The court held that the consular nonreviewability doctrine does not bar forward-looking Administrative Procedure Act claims challenging agency policy. It reversed the district court’s dismissal and remanded for further proceedings to determine whether the Immigration and Nationality Act authorizes the challenged manual guidance.
Topics
Practice areas
Questions Presented
- Whether the consular nonreviewability doctrine bars an APA claim challenging the State Department's "reason to believe" guidance.
- Whether the INA authorizes the Manual's "reason to believe" standard for the willful misrepresentation ground of inadmissibility.
- Whether the plaintiffs have Article III standing to challenge the Manual.
Holdings
- The doctrine does not preclude forward‑looking APA challenges to agency policy; the district court's dismissal on that ground is reversed.
- The district court's holding that the Manual's standard is consistent with the INA is vacated and the matter is remanded for further determination.
- The plaintiffs have Article III standing because the American citizen fiancé suffers a concrete injury from the exclusion of his foreign fiancé.
Key quotations
“It is far from clear 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.” (*8)
Factual background
Judith Pietersen, a Dutch citizen and horse‑trainer, regularly traveled to the United States under the Visa Waiver Program. In February 2020 CBP denied her entry, alleging unauthorized employment. Subsequent attempts to obtain a B‑1/B‑2 visa and later a K‑1 fiancé visa were denied by consular officers who applied the INA's "willful misrepresentation" ground based on a "reason to believe" standard in the State Department's Foreign Affairs Manual.
Procedural history
The district court granted the State Department's motion to dismiss, holding that the consular nonreviewability doctrine barred the plaintiffs' claims and that the Manual's "reason to believe" standard was consistent with the INA. The appellate court reviewed the dismissal de novo.
Remand instructions
Remand for further proceedings to determine whether the INA authorizes the challenged Foreign Affairs Manual provision.