From the emergency motion, here is how DOJ explains why it will suffer “irreparable harm” absent a stay:
A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to remain in place pending appeal would also harm the interests of the public and of third parties, who will be deprived of the significant law enforcement and humanitarian benefits of prompt implementation of the Guidance. When these harms are weighed against the financial injuries claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully within their power to avoid.
DOJ also asks for a partial stay to limit the injunction to the state of Texas (the only party found to have standing).
Finally, Defendants request in the alternative a partial stay of the injunction to the extent that it purports to apply nationwide. The injunction vastly exceeds the relief necessary to redress the limited alleged harms the Court credited in its Opinion. Specifically, the injunction purports to extend beyond implementation of the Guidance in Texas (the only State whose claims of harm the Court credited) to States the Court did not find to have established any injury, and even to States that have informed this Court that they desire and expect to benefit from implementation of the Deferred Action Guidance. Thus, although a full stay is warranted, at the very least, the injunction should be stayed so that it applies only to the implementation of the Guidance in Texas.
I anticipated this move, though I thought it would come sooner. I explain here why a nationwide injunction is proper.
DOJ also explains that a temporary injunction cannot be issued merely to maintain the status quo, but to prevent an injury.
The Court’s assertion that the preliminary injunction merely preserves the status quo, Op. at 119, is not a sound basis for concluding that Defendants will not be irreparably harmed absent a stay pending appeal. The focus of the irreparable harm inquiry “must be on prevention of injury by a proper order, not merely on preservation of the status quo.” Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). By enjoining Defendants’ ability to implement guidance that the Secretary has determined is necessary in the exercise of authority vested in him by Congress to administer the immigration laws, the Order jeopardizes the efficiencies to immigration enforcement (and thus the protection of the Homeland) that the Guidance would otherwise be expected to provide, “making it more difficult [for the Department] to efficiently and effectively carry out its mission.” Saldaña Decl. ¶ 19. Defendants would thus unquestionably suffer irreparable harm if a stay is denied, regardless of whether the injunction is characterized as preserving or altering the status quo.
DOJ tells the court that absent a ruling by Wednesday, it will seek an emergency stay in the 5th Circuit.
In light of the immediacy of the harm to Defendants and the public in the absence of a stay of the Court’s Order, which prevents Defendants from complying with the timeline set forth in the Guidance for U.S. Citizenship and Immigration Services (“USCIS”) to begin accepting requests for deferred action, Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief from the Court of Appeals in order to protect their interests.
I suspect Texas will file a reply today or early tomorrow.