Former top DHS lawyer shares perspective on Trump administration immigration policies

NINA MOINI: The US House is expected to vote today on a bill to fund the Department of Homeland Security. Senate Democrats have held up funding to push for restrictions on ICE and Border Patrol activity. One of the changes they want to see is a ban on federal agents entering homes without a warrant signed by a judge. A leaked Department of Homeland Security memo from last year told agents they can force entry with only what's called an administrative warrant.

Legal experts have said that guidance is illegal and that it violates the US Constitution. A group of former top DHS lawyers from Republican and Democratic administrations made this argument in a New York Times opinion piece. Kara Lynum is part of that group. She was acting DHS general counsel and deputy general counsel under former President Joe Biden. Before that, she was an immigration lawyer in Minnesota. She joins us on the line now. Thanks for your time this afternoon, Kara.

KARA LYNUM: Thank you for having me.

NINA MOINI: People might be familiar with some of the examples of this that have happened in recent months here in Minnesota. One was in the case of Garrison Gibson, who was detained after federal agents broke down his door with an administrative warrant, rather, again, than a judicial warrant. Can you briefly explain for our audience the difference?

KARA LYNUM: Yeah, certainly. So a judicial warrant is a warrant signed by a judge. In this case, usually, it would have been issued out of a federal court. The other type of warrant is an administrative warrant, which is a warrant that ICE itself issues that does not have the signature of a judge.

NINA MOINI: And why does forcing entry with only an administrative warrant violate the Constitution? How does it violate the Constitution?

KARA LYNUM: So it's a violation of the Fourth Amendment, which gives people, of course, the right to not have their door busted down by the executive branch. So it's long protected the sanctity of the home. And ICE itself issuing that warrant without a-- not without a neutral authority signing off on it is a violation of the Fourth Amendment.

NINA MOINI: The current top DHS lawyer, James Percival, wrote that what he called "deep state actors" had prevented federal agents from entering without judicial warrants in the past. He wrote that there were too many obstacles to enforcing immigration laws. What did you make of that argument?

KARA LYNUM: Yeah, being the acting general counsel at DHS, I was fortunate to work with the thousands of lawyers who work for DHS. And all of them took the oath to support and defend the Constitution. So I certainly would not call them the deep state to prevent ICE from entering homes without a judicial warrant. So it was upsetting to hear the career workforce of the DHS General Counsel's Office be referred to as the deep state.

NINA MOINI: Is that why you felt it was important-- you and others who were DHS lawyers-- to speak out about this? I mean, to do an op-ed in The New York Times, that isn't just going out to a couple people. I mean, you all really, it seems like, wanted to send a message. Why did you feel like it was important to do that right now?

KARA LYNUM: Yeah, I think that's the first time that a group of us like that has come together to put out that kind of piece, because it was important to state across party lines, across administrations, that speaking that way of the career workforce at DHS, while being a proponent of this violation of the Constitution, is a problem. So we were really proud to have that published.

NINA MOINI: Immigration law is separate from the criminal laws and justice system of immigration judges, and enforcement agents are part of the executive branch. And most immigration violations are civil offenses, not criminal ones. Obviously, you know this, but most everyday people are not familiar with the inner workings of these different systems and how they interact. And if they hear about enforcement, they might assume it's a criminal activity. How does this civil versus criminal impact the rights of people in immigration proceedings and enforcement officers and what they're entitled to? Or does it make a difference?

KARA LYNUM: I mean, I think it's a little bit-- the immigration context makes it a little bit confusing because-- especially as you've seen in Minnesota such significant enforcement, which looks on the street like it's criminal enforcement. But as you correctly pointed out, it is mostly civil enforcement that's happening. And the Constitution does not say it's only for criminal matters that the Fourth Amendment applies to these warrantless entries into homes. So ICE would be subject to the same restrictions in a civil context.

NINA MOINI: And the idea here is that without this due process and this higher standard from the judge, the judicial warrant, that there could be a case where government just arbitrarily gets to enter people's homes. What is the ultimate fear if this starts to become really common practice?

KARA LYNUM: Yeah, I think that's it. I think it's having a unitary branch, being able to decide when they can enter people's homes. Having that judicial signature on a warrant provides that check and balance that's really critical in something as important as the entry into someone's home.

NINA MOINI: What kind of feedback have you gotten after this op-ed?

KARA LYNUM: Yeah, it's been mostly supportive, folks being glad that those of us who can say something that have previously sat in that job can come forward and say that the Fourth Amendment does apply and that the career workforce there is not the deep state.

NINA MOINI: I know you spent time here in Minnesota working with people seeking asylum and on asylum cases. As I'm sure you know, there's been a large backlog in asylum cases for many years. Has the US been fulfilling the rights of people over the past few administrations, from your perspective? What is changing as it relates to the asylum system? Because we know the Trump administration has paused asylum applications late last year.

KARA LYNUM: Yeah, that's probably the largest change that's happened, the current pause on the issuance of decisions for asylum applications. So asylum remains a statutory right that people have under our existing laws that Congress passed, so they're still able to apply. But right now, they are not receiving any decisions. I believe that decision came down, of course, after a tragic shooting in Washington, DC. And I believe it's still in place. I'm not aware of an end date of that policy.

NINA MOINI: What do you think could be done to make the asylum system function better, besides just putting a pause on these applications?

KARA LYNUM: Yeah, I think the affirmative asylum system has a massive backlog. As of last week, USCIS said that there's 1.4 million cases in their backlog and only about 979 asylum officers. So that math just doesn't add up. So reducing that backlog so that people get their decisions in a timely manner, while also making sure the process is fair, I think that would go a long way towards fixing it. Right now, the backlog is just too large.

NINA MOINI: What do you wish people understood more about the way that DHS operates or what it is like to work within that agency?

KARA LYNUM: Yeah, I mean, DHS is enormous. I think there's about 260,000 people that work there and about 4,000 attorneys. The people that I worked with there spent every day working really hard to further DHS's mission. I, every day, was impressed with them. And I really have a lot of respect for the folks there.

NINA MOINI: All right, Kara, thank you very much for joining Minnesota Now. Really appreciate your time.

KARA LYNUM: Thank you for having me.

NINA MOINI: Kara Lynum is a consultant and former acting general counsel for DHS in the Biden administration. Before that, she was an immigration lawyer in Minnesota.