Pietersen v. U.S. Dep't of State

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JUDITH JELTSJE PIETERSEN, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, et al., Defendants.

No. 22-cv-3544 (DLF)

United States District Court, District of Columbia

March 21, 2024

MEMORANDUM OPINION

DABNEY L. FRIEDRICH United States District Judge

Judith Pietersen, a Dutch citizen, seeks to enter the United States to marry her American fiance Daniel Brown. After several unsuccessful attempts to enter the United States, Pietersen twice applied for a K-1 nonimmigrant visa. Both K-1 visa applications were denied. In the First Amended Complaint Pietersen and Brown bring claims under the Immigration and Nationality Act, Due Process Clauses of the Fifth and Fourteenth Amendments, First Amendment, Mandamus Act, and Declaratory Judgment Act. They seek, among other things, an order from this Court vacating the K-1 visa denials and directing the State Department to readjudicate Pietersen's visa application. Before the Court is the defendants' Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Mot. to Dismiss at 1, Dkt. 11. For the reasons that follow, the Court will grant the motion and dismiss the First Amended Complaint under Rule 12(b)(6).

I. BACKGROUND

A. Statutory and Regulatory Background

The U.S. Visa Waiver Program permits citizens from 41 countries, including the Netherlands, to “travel to the United States for business or tourism for stays of up to 90 days without a visa.” U.S. Visa Waiver Program, U.S. Dep't of Homeland Sec., https://www.dhs.gov/visa-waiver-program [https://perma.cc/9MER-5XQC]; see Visa Waiver Program, U.S. Dep't of St., https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html [https://perma.cc/XLY4-USLE]. Using the Electronic System for Travel Authorization, a noncitizen can determine his or her eligibility to travel to the United States under the Visa Waiver Program. Frequently Asked Questions About the Visa Waiver Program (VWP) and the Electronic System for Travel Authorization, U.S. Dep't of Homeland Sec., https://www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visa-waiver-program-vwp-and-electronic-system-travel [https://perma.cc/TWB5-DBMC]. If, however, an “alien previously was admitted without a visa” under the Visa Waiver Program, “the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant.” 8 U.S.C. § 1187(a)(7). A failure to comply will require a noncitizen to apply for a nonimmigrant visa to travel to the United States. See Frequently Asked Questions, supra.

As relevant here, a noncitizen who “is the fiancee . . . of a citizen of the United States . . . and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission” may apply for a “K-1” nonimmigrant visa. 8 U.S.C. § 1101(a)(15)(K)(i). The process to obtain a K-1 visa, however, is “multistep.” Bagherian v. Pompeo, 442 F.Supp.3d 87, 90 (D.D.C. 2020). First, the noncitizen's American fiance(e) must submit a petition, known as a Form I-129F, to the Department of Homeland Security (DHS). See 8 U.S.C. § 1184(d)(1); I-129F, Petition for Alien Fiance(e), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/i-129f [https://perma.cc/S2TD-D7TY]. Second, after DHS approves the petition, it is forwarded to the National Visa Center (NVC). See Visas for Fiance(e)s of U.S. Citizens, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/family/family-of-us- citizens/visas-for-fiancees-of-us-citizens [https://perma.cc/M3FT-ZLQU]. Finally, the NVC forwards the visa application to a U.S. Embassy or consulate where the noncitizen fiance(e) intends to apply for a K-1 visa. Id. A consular officer is then responsible for interviewing the noncitizen fiance(e), reviewing the application, determining the couple's “bona fide intent to establish a life together,” and requesting any appropriate background check. Id.

After a noncitizen has “properly completed and executed” a “visa application” and interviewed, a “consular officer must issue the visa, refuse the visa, or, pursuant to an outstanding order . . . discontinue granting the visa.” 22 C.F.R. § 41.121(a). “No visa or other documentation shall be issued” if (1) “it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa . . . under section 1182 of this title, or any other provision of law”; (2) “the application fails to comply with the provisions of this chapter, or the regulations issued thereunder”; or (3) “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). As relevant here, under section 1182, a noncitizen “who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . a visa . . . or admission into the United States or other benefit provided” is inadmissible. Id. § 1182(a)(6)(C)(i).

B. Factual Background

Judith Jeltsje Pietersen is a citizen of Netherlands. First Am. Compl. ¶ 19, Dkt. 10. Pietersen is “a highly successful horse trainer and expert dressage rider,” and she has “traveled regularly to the United States” under the Visa Waiver Program. Id. ¶¶ 31, 32. “From time to time,” Pietersen visited the United States to conduct “horse-riding clinics” for which she “receive[d] some nominal compensation in exchange for her guidance.” Id. ¶ 34. Pietersen's fiance Daniel Brown is a U.S. citizen and “successful author and public figure.” Id. ¶¶ 20, 30.

Over the last few years, Pietersen has unsuccessfully attempted to enter the United States on four separate occasions. First, on February 18, 2020, Pietersen was denied entry for a skiing trip under the Visa Waiver Program. Id. ¶ 36. Upon her arrival at the Minneapolis-St. Paul International Airport, a U.S. Customs and Border Protection (CBP) officer showed Pietersen a “Facebook page [printout] reflecting her prior participation in [the] riding clinic” for pay, which constituted “unlawful employment” in violation of the Visa Waiver Program. Id. ¶¶ 36, 38. CBP revoked her Electronic System for Travel Authorization approval, which meant “she would need to secure a visa . . . before attempting any subsequent U.S. entry.” Id. ¶ 39. Given Pietersen lacked any such valid unexpired visa, she was refused entry and returned to the Netherlands. Id. ¶¶ 38, 40 (citing 8 U.S.C. § 1182(a)(7)(A)(i)).

Second, Pietersen unsuccessfully applied for a B-2 visa based on “previously scheduled medical appointments in the United States.” Id. ¶ 42; see 8 U.S.C. § 1101(a)(15)(B) (noting a B-2 visa is available to noncitizens “having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States . . . temporarily for pleasure”); 22 C.F.R. § 41.31(b)(2)(i) (defining “pleasure” to include “medical treatment”). Pietersen “brought a range of relevant documents” to her consular interview on February 21, 2020, but the “consular officer refused to accept or review any of these documents.” First Am. Compl. ¶ 45. The officer refused the visa application because Pietersen lacked “ties that will compel [her] to return to [her] home country after [her] travel to the United States.” Id. ¶¶ 46, 47; see 8 U.S.C. § 1101(a)(15)(B).

Third, Pietersen and Brown “decided to pursue” permanent residence based on their plans to marry and initiated a K-1 visa application. First Am. Compl. ¶ 49. On March 10, 2021, Brown submitted a Petition for Alien Fiance(e) (Form I-129F), and the petition was approved on February 2, 2022. Id. ¶ 51. On May 17, 2022, Pietersen went to a K-1 visa interview at the U.S. Consulate in Amsterdam. Id. ¶ 53. Pietersen brought supporting documentation, but “the consular staff refused to accept or review any of these critical documents.” Id. ¶ 55. After “a brief interview,” Pietersen received “another visa denial notice,” the basis of which was misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i). First Am. Compl. ¶ 56.

Finally, Pietersen applied for a second K-1 visa, but this too proved unsuccessful. On May 9, 2023, Pietersen “attended a second K-1 visa interview,” and four days before the interview, her lawyer provided the consulate “a detailed submission,” including a sworn statement and legal brief. Id. ¶ 60. At the interview, the “consular officer did not address or inquire about the additional supporting documents” and asked “why Ms. Pietersen was applying again after her previous K-1 visa had been refused.” Id. ¶ 62. Her second K-1 application was ultimately refused, again on misrepresentation grounds. Id. ¶ 63.

Pietersen and Brown sued the State Department, Secretary of State Antony Blinken, and Assistant Secretary Rena Bitter (Defendants). Id. ¶¶ 19-23. The plaintiffs principally contend that the defendants acted unlawfully by refusing to review information submitted in Pietersen's K-1 visa applications and by applying a “reason to believe” standard in adjudicating the misrepresentation ground of inadmissibility.^[1] Id. ¶¶ 112-132. They claim that this unlawful conduct violated the Immigration and Nationality Act (INA), Due Process Clauses of the Fifth and Fourteenth Amendments, First Amendment, Mandamus Act, and Declaratory Judgment Act. Id. As relief, the plaintiffs request, among other things, declaratory relief that Pietersen's K-1 visa application was denied through unlawful process, vacatur of her “recent visa refusals,” and an order “direct[ing]” the defendants to re-adjudicate Pietersen's visa application. Id. at 26. On July 6, 2023, the defendants moved to dismiss. See Mot. to Dismiss, Dkt. 11.

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