[00:00:00] Speaker 00: Case number 24-1592. [00:00:03] Speaker 00: Judy Yeltsin-Peterson and Daniel Gohard Brown, Appellants versus United States Department of State et al. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Newhampe for the Appellants, and Fosterberg for the Appellees. [00:00:16] Speaker 05: Good morning, Your Honors. [00:00:18] Speaker 04: Good morning, Mr. Hampy. [00:00:19] Speaker 05: Carl Hampy with the Fragonman Law Firm for Appellants Judith Peterson and Dan Brown. [00:00:24] Speaker 05: May it please the Court, Your Honors. [00:00:27] Speaker 05: This court can hear Ms. [00:00:29] Speaker 05: Peterson's challenge to the erroneous instruction in the Foreign Affairs Manual, the FAM. [00:00:34] Speaker 05: There's no authority to support the government's overly broad claim that it can draft an unlawful guidance insulated from judicial review simply because it'll end up in the hands of a consular officer and contrary authority supporting review from this circuit. [00:00:51] Speaker 05: The State Department's FAM instruction on the willful misrepresentation ground [00:00:56] Speaker 05: is clearly unlawful as the district court incorrectly applied an interim ground of consular review and its reasonably standard to the ultimate determination of admissibility, which requires willfulness. [00:01:10] Speaker 05: And finally, appellants ask that this court direct the State Department to correct its mistaken FAM instruction so that Ms. [00:01:19] Speaker 05: Peterson can have a fair shot at a future visa application. [00:01:24] Speaker 02: Where in your complaint do you challenge this spam policy? [00:01:28] Speaker 02: Because I read your complaint to just challenge the actual visa denial for Ms. [00:01:34] Speaker 02: Peterson. [00:01:35] Speaker 05: The complaint in a number of instances states that specifically in paragraphs 13, 15, 57 and [00:01:57] Speaker 02: To your honor. [00:01:59] Speaker 02: OK, well, can we slow down? [00:02:01] Speaker 06: You said yes. [00:02:14] Speaker 06: So I'm sorry, not 13th. [00:02:20] Speaker 06: Second habits here. [00:02:27] Speaker 05: If I may, your honor, let me just. [00:02:32] Speaker 02: So the reason I'm confused is because your prayer for relief says that you request the court hold that defendants inaccurate description of the willful misrepresentation rather than disability to be in in bad faith, not bona fide or face legitimate, and that it vacate Miss Peterson's recent visa refusals and direct the State Department to refrain from applying an improper standard of evidence. [00:02:55] Speaker 05: Yes, your honor. [00:02:55] Speaker 05: In the third paragraph in the prayer for relief, we ask that the court find and declare the defendant's inaccurate description of the willful misrepresentation ground and inadmissibility in its foreign affairs manual to be in bad faith and unlawful. [00:03:13] Speaker 05: And that was the relief. [00:03:15] Speaker 02: But there's no sort of APA or like cause of action or anything. [00:03:20] Speaker 02: It just seems that this complaint [00:03:22] Speaker 02: is really geared towards this specific visa application. [00:03:27] Speaker 05: When this complaint was filed, there's some procedural history that's important here, Your Honor. [00:03:32] Speaker 05: When this complaint was filed, the Munoz case hadn't even been accepted for cert by the Supreme Court. [00:03:37] Speaker 05: So a due process claim was still viable. [00:03:41] Speaker 05: As the subsequent oral argument in the district court showed, it no longer is. [00:03:45] Speaker 05: In the district court, we clarified that we still had a mandamus claim. [00:03:50] Speaker 05: to direct the Secretary of State to perform the duty he owed to Ms. [00:03:58] Speaker 02: Peterson and to Mr. Brown to properly influence the actual application as opposed to the general policy, isn't it? [00:04:08] Speaker 05: We made it very clear in post oral argument briefs before the district court that the mandamus claim also applied to what was our basis for challenging [00:04:18] Speaker 05: the secretary's failure to properly implement the statute by drafting an unlawful fam guide. [00:04:25] Speaker 02: But your appeal is not of the mandamus issue. [00:04:29] Speaker 05: Our appeal is of the fams. [00:04:33] Speaker 05: Our appeal does not challenge the consular officer's decision. [00:04:39] Speaker 05: Our appeal asks this court to [00:04:43] Speaker 05: exercise its authority that it did in the bricklayer's decision by looking at the fam instruction. [00:04:50] Speaker 02: I understand. [00:04:51] Speaker 02: I guess what I'm trying to understand is where you preserve that argument for appeal because your complaint does not appear to challenge the fam in that respect. [00:05:01] Speaker 02: And you just told me about the mandamus litigation, but you're not challenging the mandamus decision. [00:05:07] Speaker 02: I'm trying to understand how it is that this is properly before us as a challenge to the fam as a policy. [00:05:16] Speaker 05: Your honor, the immigration laws, section 1104A, charge the secretary of state with properly administering the immigration laws. [00:05:26] Speaker 05: That creates the duty that the mandamus act we submit [00:05:32] Speaker 05: It may be used by this court to encourage or to direct the executive to properly implement the immigration laws based on its responsibility in 1104A. [00:05:50] Speaker 02: I see, but you're again going back to the mandamus. [00:05:53] Speaker 02: Is that what's before us right now? [00:05:54] Speaker 02: You're asking us to issue a writ of mandamus? [00:05:58] Speaker 05: Yes, Your Honor. [00:06:00] Speaker 05: Your Honor, our conundrum was the following, which was after the Munoz decision was made and after the district court ruled, we normally would have just gone back to district court and amended to clarify everything, to have more clearly pled the APA, not merely as a jurisdictional basis, but also as a basis for relief. [00:06:25] Speaker 05: and shown how the mandamus claim would also apply. [00:06:29] Speaker 05: Unfortunately, the district court decision clearly set forth how futile that would have been by saying, look, the doctrine precludes me from even considering this case. [00:06:42] Speaker 05: And here's the way I read section 1201 G of the immigration laws to eliminate your argument to sustain the fam's reason to believe statute, reason to believe standard. [00:06:56] Speaker 05: We normally would have gone back. [00:06:58] Speaker 05: If it hadn't been futile to go back and amend, we would have. [00:07:02] Speaker 05: But the district court made clear that we couldn't. [00:07:06] Speaker 05: And so the relief we're asking for here in the alternative, if this court isn't comfortable with just directly striking the fam instruction that we submit is unlawful and that we submit this court through mandamus has the power to direct the secretary to strike the offending language, [00:07:25] Speaker 02: would be to allow us to- Is there a mandatory argument in your briefs? [00:07:28] Speaker 05: Yes. [00:07:29] Speaker 05: Yes, your honor. [00:07:33] Speaker 05: And it was fully put before the district court. [00:07:36] Speaker 05: The district court didn't decide it. [00:07:42] Speaker 05: These were in the post-oral argument briefing, we said, and that's on page two and page six, [00:07:55] Speaker 05: of our post oral argument briefs before the district court. [00:07:59] Speaker 05: We said, we believe the fam that court had authority. [00:08:02] Speaker 04: I'm talking about your brief before us. [00:08:04] Speaker 05: OK. [00:08:11] Speaker 05: I believe it's in our reply brief, Your Honor. [00:08:14] Speaker 02: You can't raise a new argument in your reply brief, can you? [00:08:19] Speaker 05: Um, we submit your honor was, it was not a new argument because mandamus was a part of our claim below mandamus was a part of our argument and the, um, the post argument, the post oral argument hearings before the district court. [00:08:39] Speaker 04: I think on page 19 of the blue brief mentions mandamus in the, um, [00:08:50] Speaker 04: Beginning that first paragraph, starting on page 19, the court has permitted mandamus actions, challenging delays. [00:08:56] Speaker 05: Yes, thank you, Your Honor. [00:08:58] Speaker 05: Page 19. [00:09:00] Speaker 05: Second, courts have clarified that future decision-making by a consulate does not trigger the doctrine, and this court has permitted mandamus actions, challenging delays in the process of issuing a consular decision on the grounds the consular non-reviewability does not attach until [00:09:17] Speaker 05: after a final decision has been made? [00:09:19] Speaker 04: I'm a little confused. [00:09:21] Speaker 04: Maybe it's the same issue. [00:09:22] Speaker 04: Maybe it's just a related issue. [00:09:23] Speaker 04: It struck me that this is really an APA challenge to the Foreign Affairs Manual. [00:09:29] Speaker 04: I'm not sure why. [00:09:31] Speaker 04: I mean, mandamus would be if you were challenging a specific piece of denial. [00:09:36] Speaker 04: But if you're looking for a declaration or relief that the Foreign Affairs Manual in this respect is contrary to the statute, [00:09:47] Speaker 04: Would that be a satisfactory approach? [00:09:52] Speaker 05: Yes, your honor. [00:09:54] Speaker 05: Certainly, if we had been able to go back, if the district court decision hadn't clearly cut us off from going back to amend in light of the Munoz decision, we would have gone back amended and [00:10:07] Speaker 05: and filed an APA cause of action with the district court. [00:10:11] Speaker 05: But the district court said, don't bother because the doctrine cuts you off. [00:10:16] Speaker 05: And don't bother because 1201G has the reason to believe standard, which we submit is clearly around us. [00:10:24] Speaker 04: So I think you didn't get a chance to finish your sentence. [00:10:26] Speaker 04: You said we should either [00:10:31] Speaker 04: invalidate the district court's reading of constitutional reviewability, or alternatively, and I thought you were going to say remand. [00:10:39] Speaker 05: Yes. [00:10:41] Speaker 05: In the alternative, this court could strike the district court holding that the 1201g reasonable standard applies to the actual inadmissibility determination and clarify that the doctrine doesn't preclude review of the FAM itself, and then remand with an opportunity for us to amend [00:11:00] Speaker 05: to as you point out. [00:11:03] Speaker 04: So on the merits of the challenge that the foreign affairs manual conflicts with the statute, I'm not sure I follow the argument because [00:11:17] Speaker 04: The statutory provision doesn't say anything about the quantum of evidence of misrepresentation that a consular officer needs to deem an applicant inadmissible under subsection 1182A6C1. [00:11:31] Speaker 04: It just doesn't, there's nothing in that that contradicts the manual's use of reason to believe. [00:11:37] Speaker 04: And then as the government argues under section 1201G, [00:11:46] Speaker 04: which categorically says that consular officers should not recognize an applicant as eligible if the officer knows or has reason to believe that they're not eligible. [00:12:02] Speaker 04: Sure, Your Honor, yes. [00:12:04] Speaker 04: I understand the expresio unies, that some of the other subsections explicitly use reason to believe. [00:12:11] Speaker 04: But you never point to anything in the act that provides an alternative standard, a higher standard. [00:12:18] Speaker 04: And it's really unclear from your briefing what standard you even think does apply and where you find it in the statute. [00:12:25] Speaker 05: The standard is willfulness, Your Honor. [00:12:27] Speaker 05: meaning elsewhere in 1182A, where the other grounds of inadmissibility are set forth, when Congress wanted a reasonable standard to apply, it said so for potential money laundering, for drug trafficking, for material support of terrorism. [00:12:46] Speaker 05: Otherwise, it is the words of the statute, and it said, [00:12:52] Speaker 05: You are inadmissible if by fraud or willful misrepresentation, you assert a fact or you omit a fact that's material to your visa application. [00:13:04] Speaker 04: But doesn't that mix, that's sort of apples and oranges. [00:13:07] Speaker 04: The question is reason to believe there's willfulness or [00:13:13] Speaker 04: of finding by the preponderance of the evidence that there's willfulness. [00:13:16] Speaker 04: I thought you were gesturing toward a different quantum of evidence. [00:13:20] Speaker 04: You're right that the merit standard that the consular officer should be thinking about is [00:13:25] Speaker 04: fraud or willful misrepresentation. [00:13:28] Speaker 04: But I thought you were challenging the standard of allegation or proof or quantum of. [00:13:39] Speaker 05: Yes, Your Honor. [00:13:40] Speaker 05: We're challenging two things. [00:13:41] Speaker 05: We're challenging the quantum because reason to believe is certainly below preponderance, which is the default standard in the immigration laws. [00:13:49] Speaker 05: But we also challenge the second part of the [00:13:56] Speaker 05: of the FAM instruction, which says, if an individual engages in conduct inconsistent with their non-immigrant status within 90 days of visa application or admission to the US, you may presume that the applicant made a willful misrepresentation, i.e. [00:14:14] Speaker 05: you may presume that the applicant's representations about engaging in only status compliant activity were willful misrepresentations. [00:14:24] Speaker 05: And it is those two parts of the FAM instruction taken together, the reason to believe, and then the presumption of willfulness simply by a fact pattern. [00:14:36] Speaker 05: Those two taken together. [00:14:37] Speaker 04: The presumption of willfulness is where? [00:14:39] Speaker 04: I'm sorry, you gave a citation, but I missed it. [00:14:43] Speaker 05: It's in that same FAM instruction on the willfulness representation ground of inadmissibility. [00:14:53] Speaker 05: It's a little further down, 9FAM 302.9. [00:14:58] Speaker 05: I think I have it here, the whole thing here. [00:15:11] Speaker 05: But we clearly, in our papers, and in our briefing, challenged both the reason to believe [00:15:23] Speaker 05: and the presumption. [00:15:24] Speaker 05: And the presumption just doesn't work with a willfulness standard. [00:15:30] Speaker 05: And particularly as we've pled it, Your Honor, we showed how Ms. [00:15:37] Speaker 05: Peterson fit precisely into the fact pattern for the presumption. [00:15:43] Speaker 05: So we submit, Your Honors, that this was the cause. [00:15:49] Speaker 05: And we certainly satisfied the causation requirements. [00:15:52] Speaker 04: Can you just, I think it's JA 171 onward. [00:15:59] Speaker 04: The language that you're referring to about you may presume that you're changing. [00:16:04] Speaker 04: Is this argument in your briefs? [00:16:06] Speaker 06: Yes, Your Honor. [00:16:06] Speaker 02: The challenge that you will presume? [00:16:08] Speaker 06: It is. [00:16:27] Speaker 06: My apologies. [00:17:11] Speaker 06: Your honors, we begin our discussion of this on page 12 of our opening brief, where we... Here. [00:17:37] Speaker 05: On page 12, [00:17:40] Speaker 05: We discussed the FAM provision here. [00:17:42] Speaker 05: 9FAM 302.9-4B3G1b. [00:17:48] Speaker 02: I know, but you're specifically arguing now that there's a provision about you will presume and that that's not appropriate. [00:17:54] Speaker 02: Yes. [00:17:54] Speaker 02: I don't remember seeing any argument about that. [00:17:56] Speaker 05: So I think we, I submit we did, Your Honor, but let me find that provision. [00:18:46] Speaker 04: Oh, here we go at the bottom. [00:18:49] Speaker 04: Yes. [00:18:50] Speaker 04: 206, page JA206, basically the last paragraph on page 206, if an individual engages in contact and consistent with their non-immigrant status within 90 days of visa application or admission, you may presume the application made a willful misrepresentation. [00:19:13] Speaker 04: No, I understand. [00:19:13] Speaker 04: I don't think it's in the brief. [00:19:15] Speaker 04: I don't think you can argue that. [00:19:16] Speaker 04: I believe it is, but I'm sorry I'm fumbling with papers and didn't have the precise... Yeah, I don't think it refers to this particular presumption, but the point is we understand the argument you're making now. [00:19:35] Speaker 04: You were in the process of responding to my question how there's a conflict between the terms of the INA and the use in the manual of the reason to believe standard. [00:19:47] Speaker 04: And you said that the default standard in the INA is preponderance. [00:19:59] Speaker 04: I don't see you citing anything for that, and I actually [00:20:03] Speaker 04: I may not have read carefully enough or I may be forgetting, but I didn't see that standard. [00:20:10] Speaker 05: Your honor, that I can say for certain, we didn't include that argument in our briefs because our view of this was that the reason to believe standard and the presumption combined to clearly make inoperative the willfulness standard. [00:20:26] Speaker 04: Well, presumption could be rebuttable. [00:20:29] Speaker 04: What is the evidence that Ms. [00:20:32] Speaker 04: Peterson was not willful in violation of the visa terms? [00:20:38] Speaker 05: Yes, Your Honor. [00:20:38] Speaker 05: And if I may just give a brief summary of what happened here. [00:20:45] Speaker 05: Ms. [00:20:46] Speaker 05: Peterson came in five years ago, presented herself for entry at the Minnesota Airport under the Visa Waiver Program as a visitor [00:20:57] Speaker 05: visa waiver as a visitor, CBP turned her around, did not find her inadmissible, but said, we're not convinced, because you've been here a lot, that you're eligible for the visa waiver visitor status. [00:21:11] Speaker 05: Go back and get a visa. [00:21:13] Speaker 05: So Miss Peterson went back to the consulate in Amsterdam. [00:21:17] Speaker 05: She applied for a visitor's visa. [00:21:19] Speaker 05: It was refused. [00:21:21] Speaker 05: She then, she and her, [00:21:23] Speaker 05: Appellant Dan Brown had been engaged, so she filed a fiancee visa. [00:21:29] Speaker 05: And at that point, the consular officer in Amsterdam first lodged an inadmissibility determination for misrepresentation. [00:21:38] Speaker 05: 1201G is an interim basis for a consular officer to make a decision. [00:21:46] Speaker 05: And that officer could have used that statute to say, hmm, [00:21:51] Speaker 05: You may fit a fact pattern here. [00:21:53] Speaker 05: I should cast the net broadly using the reason to believe standard and determine whether or not a ground of inadmissibility applies because that bar would be for life. [00:22:06] Speaker 05: The consular officer did not do that, but that's the function of 1201G. [00:22:11] Speaker 05: And that's why Congress had the reasonable leave standard to catch the wide net, cast the wide net. [00:22:17] Speaker 05: It's an interim basis for a decision, as the district court said. [00:22:20] Speaker 02: How do you know what kind of net they cast? [00:22:23] Speaker 05: I'm sorry? [00:22:24] Speaker 02: How do you know what kind of net they cast? [00:22:25] Speaker 02: Are you assuming they didn't resource this? [00:22:28] Speaker 05: The consular officer, in that instance, cast no net whatsoever. [00:22:32] Speaker 05: I was just explaining what. [00:22:34] Speaker 02: How do you know that? [00:22:37] Speaker 05: It was alleged in our complaint. [00:22:40] Speaker 05: She went. [00:22:41] Speaker 05: It was a quick interview. [00:22:42] Speaker 05: A 1201-G determination is usually followed up by, you are hereby in administrative processing. [00:22:49] Speaker 05: The State Department has a form. [00:22:51] Speaker 05: They check the administrative processing box. [00:22:53] Speaker 05: And under 1201-G. [00:22:55] Speaker 02: I'm just trying to understand your argument, because I guess you're saying that they didn't do enough work to understand why she's not eligible. [00:23:02] Speaker 02: But I thought there was a Facebook post that she was in a dressage. [00:23:06] Speaker 02: She worked. [00:23:07] Speaker 02: Yes, yes. [00:23:08] Speaker 02: She got money. [00:23:08] Speaker 02: And that's what. [00:23:09] Speaker 02: So they had that information. [00:23:11] Speaker 05: That is what the CBP officer used to say, what's going on here? [00:23:19] Speaker 05: She said, well, yes, I did. [00:23:21] Speaker 05: I did. [00:23:22] Speaker 02: I did do this on a wide net argument because it seems like they had a factual basis. [00:23:26] Speaker 02: And how do you know they didn't cast a wide net? [00:23:30] Speaker 05: Because she was never given an administrative processing determination. [00:23:35] Speaker 05: I was saying that Congress, in creating the reason to believe standard in 1201, allows a consular officer, in theory, casting a wider net to put somebody in administrative processing to determine whether or not a ground of inadmissibility applies. [00:23:52] Speaker 05: But when the determination is made, it's not made under a reason to believe standard. [00:23:58] Speaker 05: And we submit that the statute doesn't allow presumptions to apply. [00:24:01] Speaker 05: The consular officer has to say, well, you willfully misrepresented to that CBP officer that you were coming purely for visitor's purposes when she said she never denied that she came for impart dressage lessons. [00:24:18] Speaker 05: She said, yeah, I didn't know that was on law. [00:24:20] Speaker 05: She made no misrepresentation whatsoever. [00:24:23] Speaker 04: You're helpfully describing two different types of determination, a kind of provisional interim determination that is based on reason to believe and that triggers, as you say, a process where she could have an opportunity to make her case. [00:24:43] Speaker 05: It could, which didn't happen. [00:24:45] Speaker 04: Right, and that that would [00:24:47] Speaker 04: involve more opportunity to sort of clarify and get a determination. [00:24:53] Speaker 04: And so what you're saying is that they collapsed that interim decision and made it sort of final and lifelong. [00:25:02] Speaker 04: Did you say permanent? [00:25:03] Speaker 05: Yes. [00:25:03] Speaker 05: So there is no requirement that the consular officer issue an interim determination. [00:25:10] Speaker 05: But that explains why 1201 G has a reasonable standard. [00:25:15] Speaker 05: In this instance, the consular officer in Amsterdam looked at whatever the officer looked at and said, look, you're inadmissible. [00:25:25] Speaker 05: So went to the final determination. [00:25:27] Speaker 05: A 212A6C, 1182A6C determination is permanent. [00:25:38] Speaker 05: Unless Ms. [00:25:40] Speaker 05: Peterson can go back, and this is our request, that she be able to go back and apply for a new visa [00:25:45] Speaker 05: and convince a consular officer that she's not inadmissible, she is inadmissible permanent. [00:25:51] Speaker 05: Waivers are available, but they're under stricter standards of hardship, and they're completely discretionary. [00:26:00] Speaker 04: I guess if you're saying that the [00:26:08] Speaker 04: So you're saying the foreign affairs manual categorically misapprehends this scheme that you're describing where there's an interim determination and then a full-on permanent determination? [00:26:22] Speaker 04: Or that the CBP official misapplied it by treating what should be an interim determination as a final? [00:26:33] Speaker 05: There was only one mistake. [00:26:35] Speaker 05: The only one agency made a mistake here, Your Honor. [00:26:38] Speaker 05: CBP made no mistakes. [00:26:40] Speaker 05: It never found Ms. [00:26:42] Speaker 05: Peterson inadmissible. [00:26:43] Speaker 05: It simply said, we're not sure you qualify to enter as a visitor. [00:26:48] Speaker 05: Go back and get a visa. [00:26:50] Speaker 05: She did go back. [00:26:52] Speaker 05: When she applied for the visa, for the fiancee visa, [00:26:57] Speaker 05: the consular officer applied a ground of inadmissibility that required a willful, by statute, that she have willfully misrepresented to the CBP officer then, or during other admissions, that she was coming for a purpose other than her primary purpose and that she had done so willfully, knowingly, with intent to deceive, right? [00:27:24] Speaker 05: She did nothing of the sort. [00:27:26] Speaker 05: She said, I thought I always could. [00:27:27] Speaker 05: And the foreign affairs manual, which is what we seek the remedy for, which is what we seek the challenge. [00:27:39] Speaker 05: Where's the willfulness standard? [00:27:42] Speaker 05: Oh, any Ellen who willfully misrepresents a material fact is inadmissible in 1182A6C. [00:27:49] Speaker 05: And fraud, of course, [00:27:53] Speaker 05: deceit that requires the intent, willful misrepresentation of a material fact. [00:28:00] Speaker 05: The statute there is pretty clear. [00:28:01] Speaker 05: It's a permanent and onerous ground of inadmissibility. [00:28:07] Speaker 05: It shouldn't be entered into simply by a FAM instruction that says, well, go ahead and presume this. [00:28:14] Speaker 05: Because if someone does something inconsistent with the terms of their visa, [00:28:19] Speaker 05: category, you may presume that they made a willful misrepresentation. [00:28:25] Speaker 05: That's what the FAM instruction says. [00:28:28] Speaker 05: We submit that's clearly unlawful. [00:28:31] Speaker 05: We submit this court has jurisdiction notwithstanding the doctrine of consular non-reviewability to look at that FAM statute and instruct the State Department [00:28:42] Speaker 05: to correct it so that in the future, when Ms. [00:28:45] Speaker 05: Peterson applies again, because she will, because she's going to be married to a U.S. [00:28:50] Speaker 05: citizen, she at least has a level playing field upon which to establish her eligibility. [00:28:56] Speaker 01: How are you going to get a review of that in light of counsel and non-reviewability? [00:29:02] Speaker 01: I'm sorry, Your Honor? [00:29:02] Speaker 01: How are you going to get a review of that in light of counsel and non-reviewability the next time [00:29:09] Speaker 05: Your honor, if this court would strike the offending FAM instructions, we will take our chances. [00:29:18] Speaker 05: We submit this court can review the FAM instruction, notwithstanding the doctrine. [00:29:23] Speaker 05: We understand that we can't seek review of the prior refusals, and we can't seek review of a future refusal. [00:29:31] Speaker 01: Of a future refusal. [00:29:32] Speaker 05: Of a future refusal if it's, well, of a future refusal. [00:29:36] Speaker 05: Period. [00:29:37] Speaker 01: Yes, period. [00:29:38] Speaker 01: I'm not sure what the point of all this is. [00:29:41] Speaker 01: You're going to lose no matter what. [00:29:44] Speaker 05: Your honor, we submit we won't lose if the offending fam instruction isn't there, because then there will be no presumption that when she entered. [00:29:54] Speaker 01: How would you know that in light of the doctor? [00:29:56] Speaker 01: Your client is simply declined. [00:30:01] Speaker 01: It's not reviewable by us. [00:30:03] Speaker 05: A future refusal [00:30:06] Speaker 05: would not be reviewable if we get a future refusal. [00:30:10] Speaker 05: Your Honor, we submit that her injury here was the offending FAM instruction, which caused the prior refusals. [00:30:17] Speaker 05: And we submit the Secretary of State has a duty to administer the immigration laws consistently with a statute, including by having FAM instructions consistent with the laws. [00:30:30] Speaker 05: We'll take our chances going forward, but that would be meaningful relief. [00:30:34] Speaker 05: We submit, and that's how we've pled it. [00:30:46] Speaker 04: Okay, thank you. [00:31:18] Speaker 03: Good morning, Your Honors. [00:31:19] Speaker 03: You may please the court at Kara Alsthberg on behalf of the United States. [00:31:23] Speaker 03: Ms. [00:31:23] Speaker 03: Peterson has been found inadmissible by two different consular officials, and she cannot enter the United States. [00:31:30] Speaker 04: Can you just sketch for us the distinction between eligibility and inadmissibility? [00:31:36] Speaker 03: Here, she's been found inadmissible underneath 1182A6C1, which is that, as discussed with [00:31:47] Speaker 03: Council across the aisle was that she willfully made a material misrepresentation. [00:31:53] Speaker 03: And that was when she was on a tourist visa. [00:31:57] Speaker 03: She entered the country claiming to be within the country for tourist reasons when, in fact, she subsequently received payment for work. [00:32:06] Speaker 03: This was found in the Facebook group relating to the dressage. [00:32:10] Speaker 03: And even Ms. [00:32:11] Speaker 03: Peterson herself admitted in a declaration as part of the amended complaint [00:32:16] Speaker 03: that states that she did receive nominal compensation for work performed. [00:32:20] Speaker 04: OK, she admitted that she did it. [00:32:22] Speaker 04: But willfulness requires, at the time of entry on the visa, that you have an intent to do something that's prohibited by the visa. [00:32:31] Speaker 04: And there's no showing of that that I understand. [00:32:35] Speaker 03: We're already looking behind the veil of consular non-reviewability. [00:32:39] Speaker 04: Right. [00:32:39] Speaker 04: But I'm trying to understand how the process works. [00:32:42] Speaker 04: I fully appreciate. [00:32:44] Speaker 04: the consular non-reviewability, but in terms of the going forward issue, I'm just trying to understand the government's view of the basis of the non-reviewable determination of illness. [00:32:58] Speaker 03: So here, all that is required is that a consular official found her inadmissible pursuant to 1182A6C1. [00:33:07] Speaker 04: And that is a permanent bar. [00:33:10] Speaker 03: That is a bar that can be waived through an I-601 waiver, which is a form that allows non-citizens to immigrate to the U.S. [00:33:21] Speaker 03: when they're otherwise inadmissible. [00:33:23] Speaker 03: They must demonstrate their inadmissibility would cause difficulties for their family members. [00:33:29] Speaker 04: And I asked you what the difference is between eligibility and inadmissibility. [00:33:33] Speaker 04: And I gather eligibility is more episodic visa-specific, and ineligibility is a kind of categorical. [00:33:40] Speaker 04: Yes. [00:33:43] Speaker 03: So here, under a typical consular non-reviability, a typical case where a consular official looks at someone, a non-citizen trying to enter the United States on a visa, [00:33:53] Speaker 03: What's required is they have the interview. [00:33:55] Speaker 03: And then afterward, pursuant to 1182b, all that's required is a written denial or the determination and then a citation regarding what the reason for that denial was. [00:34:07] Speaker 03: And here, that was met. [00:34:09] Speaker 03: That's all that's needed. [00:34:10] Speaker 03: And technically, even if there was some type of exception, some type of constitutional exception, that meets the standard even under a facially legitimate and bona fide standard for what is required. [00:34:22] Speaker 03: And here we have even more information than that. [00:34:25] Speaker 03: We know what the problem is. [00:34:26] Speaker 03: The problem is that she came here on an ESTA and received payment. [00:34:30] Speaker 02: So even if we can't reach this because of consular non-reviewability, it seems like the facts are she earned some money doing this dressage thing, which violated the terms of the visa. [00:34:43] Speaker 02: But what's the reason to believe that it was willful? [00:34:47] Speaker 03: All that's required is that the consular officer [00:34:51] Speaker 03: You know, we don't know necessarily what they looked at to make that determination. [00:34:55] Speaker 03: That's also an assumption that's being brought in by appellants is that there was an assumption that there's a reliance on this spam guidance or, you know, upon information and belief. [00:35:07] Speaker 02: I understand we might not get to this because of constant non-reviewability, but if all the facts are is that she did something, [00:35:15] Speaker 02: And then she's not admitted because there's reason to believe that it was willful. [00:35:20] Speaker 02: I don't see how there's reason to believe that it was willful. [00:35:22] Speaker 02: If all you know is that she did it, you don't know what she was thinking when she did it. [00:35:28] Speaker 03: Well, to provide maybe a little more context, the fam does actually have standards for what a finding of fraud looks like and what a finding of willful misrepresentation looks like. [00:35:39] Speaker 03: That's nine fam 302.9 dash four capital B two. [00:35:44] Speaker 04: And what J.A. [00:35:45] Speaker 04: page to help us out? [00:35:47] Speaker 03: That might be in our... Right, in your addendum? [00:35:50] Speaker 04: Yeah. [00:36:03] Speaker 03: Oh, the fam's not in that one. [00:36:03] Speaker 03: That might be actually in the... To add fam sites at the end. [00:36:25] Speaker 02: Are you on 203, the INA misrepresentation? [00:36:28] Speaker 02: Or 207, inconsistent conduct? [00:36:34] Speaker 04: The interpretation. [00:36:42] Speaker 04: Of the term misrepresentation? [00:36:47] Speaker 04: Yes. [00:36:48] Speaker 04: Page 204 of the Joint Appendix? [00:37:25] Speaker 03: I just want to make sure. [00:37:27] Speaker 04: For example, 204, I'm looking at 302.9-4B3 Sub-regulation B. Necessary to distinguish between misrepresentation of information, information that was merely concealed, silence or the failure to volunteer information does not in itself constitute a misrepresentation. [00:37:53] Speaker 04: So it's unclear what [00:37:55] Speaker 04: She said that was a misrepresentation. [00:37:57] Speaker 04: I guess the form of the visa, the government's argument is the form of the visa was really tourist visa, and that's a representation. [00:38:05] Speaker 04: I'm only going to be there as a tourist. [00:38:07] Speaker 04: Yes. [00:38:08] Speaker 04: And is it not material to the government that the person doesn't realize that the nominal compensation that she got was inconsistent with tourism? [00:38:21] Speaker 04: Yes, just presume circling back to the so. [00:38:26] Speaker 04: So is it the government's position that this kind of misrepresentation determination is under the INA made under a reason to believe standard? [00:38:45] Speaker 03: I think the district court laid out the fact that 1201 G is the operating statute related to 1182 and that it was not completely out of left field that a reason to believe standard would find its way into the fam if I can't I can't hear you apology apologies that 1201 G is the operating statutory guideline related to [00:39:08] Speaker 03: the determinations that a consular officer will make. [00:39:11] Speaker 03: And that's what the district court also cited too to explain how when a consular knows or has reason to believe that is ineligible to receive a visa under section 1182. [00:39:24] Speaker 04: It seems a little bit bootstrapping, because this says you don't issue if you think the person is ineligible, if you have reason to believe that they're ineligible. [00:39:31] Speaker 04: But what we're talking about here is a determination of ineligibility in the first place. [00:39:39] Speaker 04: And I'm wondering what the process is, according to the government, for making a determination. [00:39:44] Speaker 04: This person has engaged effectively in visa fraud or visa misrepresentation. [00:39:50] Speaker 04: They've come under false pretext. [00:39:52] Speaker 04: We're going to keep them out of the United States. [00:39:55] Speaker 04: presumptively permanently, unless they get a waiver. [00:39:58] Speaker 04: And my question is, in making that determination, is it correct that the government does that, the consular officer, let's say, makes that permanent ineligibility determination based on a so-called reason to believe level of information allegations? [00:40:24] Speaker 03: That's in the FAM itself. [00:40:27] Speaker 03: Perhaps we can presume that that's something that the council officer looks at. [00:40:31] Speaker 04: Are you saying it's in the FAM at 1201G? [00:40:34] Speaker 03: Or it's in the FAM as to how to conclude there was a misrepresentation. [00:40:39] Speaker 03: So that's the 3029-4B3G1B. [00:40:42] Speaker 03: 4B3G1, like that. [00:40:54] Speaker 01: What do you mean here, reason to believe? [00:40:57] Speaker 01: Reason to believe what? [00:40:58] Speaker 01: That she engaged in fraud or that she entered the country alleging she was coming in as tourists, but she also did some work, which is not necessarily fraud? [00:41:16] Speaker 03: And that's why it's both fraud or a willful misrepresentation. [00:41:21] Speaker 01: I'm trying to give you the alternative of fraud and willful misrepresentation. [00:41:25] Speaker 01: She came in primarily on tourism and she didn't assume anything untoward about doing a little money making venture here or there. [00:41:36] Speaker 01: She didn't assume. [00:41:39] Speaker 01: So there was no way that anyone would in a real case say that that was evidence of fraud. [00:41:46] Speaker 03: And here, it's under the misrepresentation standard. [00:41:51] Speaker 03: While that subsumes both fraud and willful misrepresentation, it's someone who's sought to procure or has procured admission to the United States, such as entering on a tourist visa and then getting compensation for that. [00:42:06] Speaker 03: So the consular officer looks at a whole host of things, including the fam, including the statutory tax. [00:42:12] Speaker 01: Does that have to reach a level of fraud? [00:42:16] Speaker 03: That does not. [00:42:18] Speaker 04: It doesn't? [00:42:19] Speaker 04: It does have to reach a level of willful misrepresentation. [00:42:22] Speaker 04: Yes. [00:42:22] Speaker 04: Yes. [00:42:23] Speaker 04: And indeed, on JA206, the provision you were looking at, G1, if you look at B in boldface, the fact that an individual's subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in filing for another type of permit does not automatically mean [00:42:42] Speaker 04: that their intentions were misrepresented at the time of either the visa application or application for admission to the United States. [00:42:50] Speaker 04: And my question, which I don't think you've answered, but I think is really central to the government's position, is what is the level of the quantum of information that the consular officer needs to make a determination that someone is inadmissible [00:43:12] Speaker 04: based on a willful misrepresentation. [00:43:15] Speaker 04: Is it preponderance of the evidence? [00:43:18] Speaker 04: Is it reason to believe? [00:43:19] Speaker 04: Or is it some other standard? [00:43:25] Speaker 03: It's unclear from the record what that standard would be or what exactly a consular officer looks at. [00:43:30] Speaker 04: What is the position of the government as a matter of law? [00:43:32] Speaker 04: Right. [00:43:34] Speaker 04: That's a contested issue in this appeal. [00:43:38] Speaker 03: likely that such a, you know, the fam guidance is not inherently incorrect and that it did appropriately apply. [00:43:46] Speaker 04: It doesn't give us standard of proof. [00:43:48] Speaker 04: And so I wonder what you think the standard is. [00:43:52] Speaker 04: At least I don't see it. [00:43:54] Speaker 04: You know way better than I do. [00:43:55] Speaker 04: So you should point us to where it says reason to believe or preponderance of the evidence or [00:44:17] Speaker 04: OK, make a finding sufficient to meet the reason to believe standard. [00:44:26] Speaker 04: This is in the FAM. [00:44:28] Speaker 04: Now, what about in this statute? [00:44:30] Speaker 04: What's the best place to look? [00:44:35] Speaker 04: You see where I'm looking? [00:44:35] Speaker 04: Right after the bolded, it says, to conclude, there was a misrepresentation. [00:44:38] Speaker 04: And this is the part that I take it that Ms. [00:44:40] Speaker 04: Peterson is challenging, that here the FAM says, [00:44:45] Speaker 04: There only has to be evidence sufficient to meet the reason to believe standard. [00:44:49] Speaker 04: And the question is, is that consistent with the statute? [00:44:52] Speaker 04: And then you pointed me, I think, to 1201 G. And that's what your brief pointed us to, that if it appears to the consular officer that an alien is ineligible, [00:45:13] Speaker 04: or the consul officer knows or has reason to believe that the alien is ineligible. [00:45:18] Speaker 04: And I guess the question is, this seems to refer to a determination, maybe just facts showing ineligibility. [00:45:49] Speaker 04: So. [00:45:52] Speaker 03: But this from the government's perspective is also not a unique case about the standard of proof that was applied. [00:45:57] Speaker 03: This is just simply appellant's way to pierce through consular non-revealability because they disagree with the outcome of that decision. [00:46:05] Speaker 04: Well, let's say a party comes without a [00:46:11] Speaker 04: with an intention to come to the United States and brings an APA challenge to the Foreign Affairs Manual, arguing that it's inconsistent with the statute. [00:46:25] Speaker 04: And let's say that person says, of course, when you're determining someone ineligible for life based on something that isn't, what did the person say? [00:46:36] Speaker 04: some of these drug trafficking or things where there's a reason to believe standard for the ineligibility. [00:46:42] Speaker 04: And they say, well, look, some of these standards say that reason to believe is the ineligibility, sort of the burden of proof. [00:46:51] Speaker 04: And this one doesn't. [00:46:53] Speaker 04: And you say, well, no, it's reason to believe for all of them. [00:46:58] Speaker 04: And your site for that is 1201G. [00:47:01] Speaker 03: Or that it could capture that as well, that if we have to get to that question, which in this case is not broad. [00:47:07] Speaker 04: I understand you're not conceding that that is not this case. [00:47:10] Speaker 04: We're just trying to understand the nature of the claim and the nature of the government's position on it. [00:47:25] Speaker 06: All right. [00:47:29] Speaker 04: Did Mr. Hanpe reserve time for rebuttal? [00:47:34] Speaker 04: We'll give you two. [00:47:35] Speaker 04: I think we use more. [00:47:37] Speaker 05: Yeah, Your Honor. [00:47:38] Speaker 05: I'll talk fast. [00:47:38] Speaker 05: Thank you. [00:47:42] Speaker 05: Your Honors, we mentioned the presumption language in the FAM on pages four and 11 of our opening brief when we said on assumptions, [00:47:55] Speaker 05: The challenge FAM guidance allowed a finding of inadmissibility based on assumption. [00:48:01] Speaker 05: I concede we didn't quote the whole section, but we did refer to the FAM section that we were challenging in the brief. [00:48:09] Speaker 05: I would like to really underscore one point. [00:48:12] Speaker 05: The district court suggests that 1201G is the ultimate arbiter here because it is the source of the government's ability to find [00:48:24] Speaker 05: Ms. [00:48:25] Speaker 05: Peterson inadmissible. [00:48:26] Speaker 05: That is flat out wrong. [00:48:29] Speaker 05: The basis for Ms. [00:48:32] Speaker 05: Peterson's ineligibility is 1182A6C. [00:48:34] Speaker 05: 1201G is an interim determination by a counselor officer. [00:48:40] Speaker 05: A number of cases in the district court, such as Shoey v. Blinken, Vulupala v. Barr, Nine Iraqi allies. [00:48:49] Speaker 04: Did you cite those cases? [00:48:52] Speaker 05: I'm not sure we did, but- We won't find them. [00:48:56] Speaker 04: If you didn't cite them, we won't find them if you don't give us- Yes. [00:49:00] Speaker 05: Speak more slowly and give us some- Shoei, S-H-O-A-I-E, V-bling-bling. [00:49:11] Speaker 05: It's a Westlaw site. [00:49:12] Speaker 05: It's DDC, November 6th, 2024, number 124, CV. [00:49:20] Speaker 05: 01513. [00:49:24] Speaker 05: There's also Vulu Pala, V-U-L-U-P-A-L-A-V bar, 438 F sub third 93, a 2020 district court decision. [00:49:37] Speaker 05: There's a well-known one, nine Iraqi allies from 2009. [00:49:42] Speaker 05: All of these cases collect other cases showing that a 1201 G determination is not final [00:49:49] Speaker 05: and interim in nature. [00:49:52] Speaker 01: Did you make that argument? [00:49:54] Speaker 05: Yes. [00:49:54] Speaker 05: Yes, your honor. [00:50:03] Speaker 05: It all comes down to what does 1182A6C say? [00:50:08] Speaker 05: It says willfulness. [00:50:11] Speaker 05: The FAM instruction that we challenged [00:50:15] Speaker 05: so corrupted or so negatively affected the consular determinations that Ms. [00:50:24] Speaker 05: Peterson has experienced to date that she didn't get a fair hearing on whether she was inadmissible or not because she didn't misrepresent her purpose when she entered. [00:50:34] Speaker 05: She acknowledged she had worked. [00:50:35] Speaker 05: She said, I didn't know that was unlawful. [00:50:38] Speaker 05: She's in the dressage industry, and there's a complex exception to what horse trainers can do on a B visa that influenced her answer. [00:50:50] Speaker 05: But putting that aside, there's no need to go that deep into the facts. [00:50:54] Speaker 05: Simply, she didn't misrepresent her purpose when she entered. [00:50:58] Speaker 05: CBP never said she misrepresented herself when she went back. [00:51:03] Speaker 05: the consular officer in Amsterdam inferred presumed that she had misrepresented because she fit a fact pattern that the unlawful fam instruction placed before the consular officer. [00:51:16] Speaker 05: We submit that so thoroughly infected the adjudication and will critically will do so in the future that she [00:51:25] Speaker 05: and Mr. Brown are suffering ongoing harm going forward because she won't be able to get over this permanent inadmissibility if she isn't able to have a fair hearing absent the offending language and the fam instruction. [00:51:40] Speaker 05: And we've argued why bricklayers and a number of other cases here allow this court [00:51:45] Speaker 05: to look at the FAM instruction, we would be very satisfied if this court would want to remand for us to state that more clearly in an amended complaint, which we felt we didn't have the opportunity to do, but was required now in light of the Supreme Court's ruling in Munoz. [00:52:07] Speaker 00: Thank you. [00:52:08] Speaker 05: Thank you, Your Honors.