2017-03-15 / Featured / Front Page

Travel ban 2.0: Debra Dowd explains the new order

By Rich Griset

Last week, President Donald Trump signed a new executive order on travel that replaced the one released Jan. 27. It is scheduled to go into effect at 12:01 a.m. on March 16.

The first travel order – which took effect the moment it was issued – barred citizens from Syria, Iran, Iraq, Yemen, Sudan, Libya and Somalia from entering the United States for a period of 90 days and suspended the country’s refugee program for 120 days. The travel ban – which some have called a “Muslim ban” – caused an uproar, with travelers stuck at airports and immigration attorneys flocking to assist them. That executive order was soon met with a temporary suspension by a federal judge.

The new ban is similar to the first, though it’s narrower in scope and leaves Iraq off the list. Green-card holders and current visa holders won’t be affected, and unlike the previous order, Syrian refugees are not barred indefinitely, and refugees already scheduled to come to the U.S. won’t be turned away. Additionally, previous language prioritizing religious-minority refugees (which seemed to grant preference to Christian refugees) is absent from the current order.

As before, though, some states are challenging the ban’s legality, and have asked a federal judge to hear their case before the ban goes into effect Thursday.

To better understand the implications of the new travel order, the Observer spoke once more with Debra Dowd, lead business immigration attorney with Chesterfield-based Dowd & Company and special counsel to Virginia on immigration from 2002-2014.

Observer: What does this new travel ban do?

Dowd: Well, some of the differences include [that] Iraq is off the list, there’s a special exception for those holding resident status – a green card. There’s also a special exception for those holding current visas. … If you already hold a visa, then you’re not going to be part of the travel ban. It’s just going to be a ban for those who don’t yet have a visa.

I’ve heard it described as a pause, not a ban, because it’s only valid for 90 days, and if I recall correctly it doesn’t kick in and go into effect until March 16, so there’s a little bit of warning.

Observer: With the earlier ban, there was some criticism that the executive order could have been better coordinated with affected federal agencies. Does this version seem better coordinated?

Dowd: I think that the delayed implementation, taking it to March 16, the clarity with respect to who’s subject to it, who is not, is intended to address those issues that people had, because [the previous ban] was a disaster. The agencies didn’t know how to interpret it, they didn’t have guidance on what it meant, and the executive office seemed to be shooting from the hip a little bit as a question or issue or concern was raised, like “Hey, does this apply to green-card holders?” “Oh, no, no it doesn’t.”

But someone reading the first executive order might not have interpreted it that way. I think this is an attempt to address the implementation criticisms that occurred with the first one.

Observer: What problems do you see with this version of the ban?

Dowd: If you’re looking at it from the perspective of implementation, I think it is better, but you’re going to remain having the same concerns that everyone’s been having in the past: Is it fair? Is it a ban on Muslims, versus an actual response to credible concerns about terrorist activities? Is 90 days really going to be enough [time] to solve the problems that they’re expressing in terms of the basis for having the ban?

I personally don’t think that the concerns that they’ve raised to justify the bans will be fixed in 90 days. I’m not sure it’s going to accomplish any particular goal, other than to get people in an uproar again.

Observer: With the original ban, questions were raised about its legality, saying that favoring Christians was a violation of the First Amendment, for instance. Does this version stand the same risk of being challenged?

Dowd: It’s definitely going to be challenged, it’s going to be challenged the same way. I think it has a better chance of being upheld, but I’m certainly not willing to make a prediction on that front. I think you might get different answers from different courts on this one.

Observer: Is there anything else our readers should know about this version of the ban?

Dowd: Same thing [as] with the prior one: I think that anyone who is a foreign national – not a green-card holder – but anyone who is in process to apply for some U.S. immigration benefit, or someone who holds a temporary visa … should think very carefully before they travel outside the U.S. if you’re already here lawfully, and I think that they should consult with their immigration counsel before they travel and make certain that counsel is okay with their travel.

I’m getting those calls from all of my clients and I’m getting those calls from people who aren’t my clients. People just need to be smart about it, watch the news, talk to their counsel, and make very, very well-informed and cautious decisions about travel until this ban is over.

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