Labor & Employment Law Daily Wrap Up, IMMIGRATION—D.C. Cir.: Dutch dressage rider revives visa suit questioning application of ‘willful misrepresentation’ guidance, (Jun 2, 2025)

By Jason Albright, J.D.

She and her fiancé, a U.S. citizen, seek to marry and live together in the U.S.

A Dutch horse trainer and expert dressage rider may move forward with her suit against the State Department challenging its denials of her K-1 visa applications—to enter the U.S. and marry her fiancé, a U.S. citizen—based on her alleged “willful misrepresentation” that she was authorized to work while previously in the country, when she would occasionally assist a friend and colleague with horse-riding clinics in exchange for nominal compensation, the D.C. Circuit held. Reversing a federal district court’s holding that the doctrine of consular nonreviewability bars the applicant’s APA claim for prospective relief, the appeals court said it also has “real doubts regarding the viability of the State Department’s ‘reason to believe’ standard,” and especially the agency’s reliance on 8 U.S.C. § 1201(g) “to support the application of the standard in a case of this sort.” Judge Pan dissented (Pietersen v. United States Department of State, No. 24-5092 (D.C. Cir. May 30, 2025)).

A transatlantic relationship. This case concerns the ongoing saga of a Dutch citizen—a horse trainer and expert dressage rider—and her fiancé, an American citizen, who are trying to arrange for her to get a visa so that the two can get married and be together in the U.S.

Statutory background. A relevant statute, 8 U.S.C. § 1182, “defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa).” And among other things, the statute provides 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, 8 U.S.C. § 1201 governs consular officers’ issuance of visas. 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.” 8 U.S.C. § 1201(g).

Guidance in Foreign Affairs Manual. 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. The Manual provision at issue here offers guidance for finding a noncitizen ineligible based on the “willful misrepresentation” ground in 8 U.S.C. § 1182.

Specifically, the Manual explains that, to determine that a noncitizen made a misrepresentation at the time of the visa application or admission to the U.S., 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.”

Visa Waiver Program. The named plaintiff has regularly traveled to the U.S. under the Visa Waiver Program. Administered by the U.S. Department of Homeland Security, the program “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.” 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).

Horse-riding clinics. While in the U.S., she occasionally assisted a friend with horse-riding clinics in Utah and received nominal compensation for her work.

Entry denied in February 2020. In February 2020, she traveled to the U.S. for a ski trip. However, U.S. Customs and Border Protection (CBP) denied her entry into the country at the Minneapolis-St. Paul International Airport for alleged unlawful employment.

Social media post invoked. Specifically, CBP claimed that, based on a social media page showing her prior participation in the riding clinics, she had engaged in unlawful employment. As a result, CBP revoked her ESTA approval and denied her entry into the U.S. for a lack of a valid unexpired visa. Without that approval, she needed to obtain a visa for any future entries into the U.S.

B-1/B-2 application refused. Returning to the Netherlands, she first applied for a B-1/B-2 visa for travel to the U.S. for medical appointments. Ultimately, following an interview, a consular officer refused her application because she purportedly lacked ties that would compel her to return to the Netherlands.

K-1 visa route. She and her fiancé thus decided that she should pursue a K-1 visa. This visa permits entry to the U.S 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).

For the first step in the process, her fiancé submitted Form I-129F, Petition for Alien Fiancé(e), with USCIS in 2021. USCIS approved his petition in 2022, and she then attended an interview with a consular officer at the U.S. Consulate in Amsterdam.

Again refused. The consular officer refused her K-1 visa application on the grounds that she had allegedly committed a misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i). Then, on her second attempt for a K-1 visa, a consular officer again refused her application under the same section, stating that the consulate viewed her earning money as a visitor under the Visa Waiver Program as a misrepresentation.

Lawsuit. She and her fiancé then sued the State Department and State Department officials, alleging that the agency’s consular officers acted unlawfully by failing to review critical information that she 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.

The two further claimed that the State Department’s Foreign Affairs Manual allows consular officers to find noncitizens inadmissible simply if an officer has reason to believe that a noncitizen willfully misrepresented a material fact—which, in their view, contravenes the Immigration and Nationality Act (INA).

The two sought, inter alia, a declaration that the State Department’s failure to review her proffered evidence was unlawful, a declaration that the Manual’s instruction on the misrepresentation ground of inadmissibility is unlawful, vacatur of her visa refusals, and an order directing the State Department to reconsider her eligibility under the proper statutory standards.

Dismissal below. The federal district court below granted the agency’s motion to dismiss for lack of subject matter jurisdiction. It concluded that, although she had Article III standing, the consular nonreviewability doctrine barred the claims and none of the exceptions to the doctrine applied. The district court rejected appellants’ APA claim that the Foreign Affairs Manual’s “reason to believe” standard violated the INA, and it also rejected their argument that the INA’s delegation of the power to grant or refuse visas to consular officers violates the Constitution’s Take Care Clause.

Appeal. The two appealed, principally arguing that the Foreign Affairs Manual’s instruction to consular officers to base inadmissibility determinations on a “reason to believe” that an applicant made a willful misrepresentation is contrary to the INA.

Fair notice of claim. The appeals court first found that the appellants sufficiently raised a forward-looking APA challenge to the Foreign Affairs Manual guidance before the district court. Specifically, their amended complaint alleged that the agency violated the INA “by instructing its 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.” They also sought a declaration that the Manual instruction is unlawful.

Hallmark APA claim. Here, the appeals court found, the complaint gave the State Department fair notice of the appellants’ claim that the Manual’s guidance is contrary to statute—a hallmark APA claim. Indeed, in the appellants’ opposition to the State Department’s motion to dismiss, they made clear that they are also seeking prospective relief regarding the State Department’s future application of the guidance, in future visa applications.

Prospective relief and “consular nonreviewability.” Nor did the doctrine of consular nonreviewability foreclose their APA claim. “To the contrary,” observed the D.C. Circuit, “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.’” Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 801 (D.C. Cir. 1985). Rather than contesting particular visa determinations by a consular officer, here, the appellants confined their challenge to the lawfulness of the State Department policy. The D.C. Circuit thus reversed the district court’s holding on this ground.

“[R]eason to believe”? The appeals court additionally observed that it is “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 were necessary before a final decision could be reached.

Take Care Clause claim. Finally, the D.C. Circuit declined to address the appellants’ Take Care Clause challenge, having concluded that the consular nonreviewability doctrine does not preclude their APA claim about the Manual.

Dissent. Judge Pan, dissenting, argued that the appellants failed to preserve their APA claim for appeal. In opposing the government’s motion to dismiss, she said, the appellants mentioned the APA but did not properly raise or brief an APA claim.

The case is No. 24-5092.

Judge: Edwards, H.

Attorneys: Carl W. Hampe (Fragomen, Del Rey, Bernsen & Loewy) for Judith Jeltsje Pietersen. Cara Elizabeth Alsterberg, U.S. Department of Justice, for U.S Department of State.

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