USCA11 Case: 23-11644 Document: 24 Date Filed: 06/05/2023 Page: 1 of 9
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11528
____________________
STATE OF FLORIDA,
Plaintiff-Appellee
Cross Appellant,
versus
UNITED STATES OF AMERICA,
ACTING COMMISSIONER OF U.S. CUSTOMS AND BORDER
PROTECTION,
U.S. CUSTOMS AND BORDER PROTECTION,
DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION SERVICES,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
SECRETARY, et al.,
USCA11 Case: 23-11644 Document: 24 Date Filed: 06/05/2023 Page: 2 of 9
2 Order of the Court 23-11528
Defendants-Appellants
Cross Appellees.
____________________
No. 23-11644
____________________
STATE OF FLORIDA,
Plaintiff-Appellee,
versus
SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY,
CHIEF OF THE UNITED STATES BORDER PATROL,
UNITED STATES OF AMERICA,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket Nos. 3:21-cv-01066-TKW-ZCB,
3:23-cv-09962-TKW-ZCB
____________________
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23-11528 Order of the Court 3
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
The Department of Homeland Security1 (“DHS”) has filed a
motion to stay two orders pending its appeal in this case: (1) the
March 8, 2023, order that vacated DHS’s Policy on the Use of Pa-
role Plus Alternatives to Detention to Decompress Border Loca-
tions (the “Parole+ATD policy”); and (2) the May 16, 2023, order
enjoining DHS’s Parole with Conditions in Limited Circumstances
Prior to the Issuance of a Charging Document memorandum (the
“PWC policy”). After careful consideration, we deny DHS’s mo-
tion. 2
I. STANDARD OF REVIEW
When reviewing a motion to stay pending appeal, we con-
sider the “traditional” stay factors: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed on the
1 We refer to the Defendants in this case—the United States, U.S. Customs and
Border Protection, DHS, U.S. Immigration and Customs Enforcement, DHS
Secretary Alejandro Mayorkas, Troy Miller, Ur M Jaddou, and Tae D John-
son—collectively as DHS for ease of reference.
2 In denying this stay, we note that we write only for the parties’ benefit. “Be-
cause an ‘order[ ] concerning [a] stay[ is] not a final adjudication of the merits
of the appeal, the tentative and preliminary nature of a stay-panel opinion pre-
cludes the opinion from having an effect outside that case.’” League of Women
Voters of Fla., Inc. v. Fla. Sec’y of State,
32 F.4th 1363, 1369 n.1 (11th Cir. 2022)
(some alterations in original) (quoting New Ga. Project v. Raffensperger,
976 F.3d
1278, 1280 n.1 (11th Cir. 2020)).
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4 Order of the Court 23-11528
merits; (2) whether the stay applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially in-
jure the other persons interested in the proceeding; and (4) where
the public interest lies.” Nken v. Holder,
556 U.S. 418, 425–26 (2009)
(quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987)).
Among these four factors, the first and second “are the most
critical.” Id. at 434. “To satisfy its burden as to those [two] factors,
the party seeking the stay must show more than the mere possibil-
ity of success on the merits or of irreparable injury.” Democratic
Exec. Comm. of Fla. v. Lee,
915 F.3d 1312, 1317 (11th Cir. 2019); accord
Nken,
556 U.S. at 434–35. Indeed, “[a] stay is not a matter of right”
but rather “an exercise of judicial discretion,” Virginian Ry. Co. v.
United States,
272 U.S. 658, 672 (1926), and so the “[t]he party re-
questing a stay bears the burden of showing that the circumstances
justify an exercise of that discretion,” Nken,
556 U.S. at 433–34.
Where the balance of equities identified in the second, third, and
fourth factors weighs heavily in favor of granting the stay, “we re-
lax the likely-to-succeed-on-the-merits requirement” of the first fac-
tor. League of Women Voters, 32 F.4th at 1370; accord Garcia-Mir v.
Meese,
781 F.2d 1450, 1453 (11th Cir. 1986).
Moreover, “[i]n considering whether to stay a preliminary
injunction, we apply the usual standards of review governing our
review of the merits of the preliminary injunction.” Democratic
Exec. Comm.,
915 F.3d at 1317. Thus, we review legal conclusions
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23-11528 Order of the Court 5
de novo and findings of fact for clear error. Id.; accord Swain v. Junior,
958 F.3d 1081, 1088 (11th Cir. 2020).
II. ANALYSIS
In its motion to stay, DHS argues that it has satisfied all four
of the Nken stay factors as to both of the orders on appeal. We
disagree and deny the motion because DHS has not met its burden
to show that it will suffer an irreparable injury absent a stay. 3
As to irreparable injury, DHS argues that, if left in effect, the
district court’s orders will “undermine the Executive Branch’s con-
stitutional and statutory authority to implement its immigration
priorities and secure the border.” “The most immediate conse-
quence of the orders,” according to DHS, “will likely be [the] over-
crowding [of] CBP facilities during increases in border encounters,”
which would threaten the “health, safety, and security” of USBP
officers and aliens. DHS warns that the overcrowding of CBP fa-
cilities could cause it to have to release some aliens without ade-
quate monitoring measures and could, in the “worst-case sce-
nario,” prevent it from apprehending some aliens entirely. Each of
these potential consequences, DHS asserts, would have negative
downstream effects on public safety and national security.
3 Because we conclude that DHS has failed to meet its burden on establishing
irreparable harm, we need not address the other Nken factors, including
whether DHS has made a strong showing that it is likely to succeed on the
merits.
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6 Order of the Court 23-11528
Overall, we do not find this argument persuasive for the following
reasons.
To start, DHS’s claims of irreparable injury ring somewhat
hollow on this record, considering the department’s track record
of overstating similar threats in the underlying proceedings. For
instance, on January 12, 2023, DHS represented to the district court
that any vacatur of the Parole+ATD policy would result in “disas-
trous consequences” for the management of the border starting the
very next day. DHS made the same representation again on Feb-
ruary 16, 2023. But, in truth, CBP had stopped using the Pa-
role+ATD practices as of January 2, 2023, and DHS now admits
that it was able to “manage[] its detention capacity [since January]
using many other tools at its disposal.” The department’s ability to
ascertain future harm is uncertain at best. Given this record, we
take DHS’s latest claims of impending disaster if it is not allowed
to use either of the challenged policies with some skepticism.
Recent data from the border casts further doubt on DHS’s
irreparable-injury argument. Contrary to DHS’s catastrophic pre-
dictions, the number of daily encounters with aliens did not surge
in the days following the expiration of the Title 42 order on May
11, 2023, but instead fell significantly. Compare Doc. 13-1 ¶ 11 in
No. 23-cv-09962 (predicting a daily average of 12,000–14,000 en-
counters), with Doc. 28 at 4 in No. 23-cv-09962 (showing that the
number of encounters dropped from 9,649 on May 11, 2023, to
4,193 on May 14). DHS has neither explained how that data is con-
sistent with its representations nor provided any more recent data
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23-11528 Order of the Court 7
demonstrating a surge in illegal crossings at the border. This Court
will not find irreparable harm based on mere conjecture.
Lastly, the timing of DHS’s appeals and motion for stay un-
dermines the department’s assertions of irreparable injury. As dis-
cussed, the district court entered its order vacating the Pa-
role+ATD policy on March 8, 2023, but stayed the decision for
seven days “to allow [DHS] to seek appellate review.” Further, as
Florida points out, DHS has known since January 30, 2023, that the
Title 42 order would terminate on May 11. DHS, however, chose
not to initiate an appeal of the vacatur order until May 5, 2023—
almost sixty days after entry of the order. And, to be clear, USBP
did not issue the PWC memo—which the district court found to
be “materially indistinguishable from the Parole+ATD policy”—
until May 10, 2023, right before the Title 42 order expired. Given
that DHS stopped using the Parole+ATD policy in early-January
2023, DHS operated for approximately five months without either
of the challenged policies before seeking relief from this Court. In
this context, i.e., where DHS frames its concerns over its tools in
detaining aliens at the border in terms of national security, that de-
lay of several months greatly undermines the department’s posi-
tion. Cf. Wreal, LLC v. Amazon.com, Inc.,
840 F.3d 1244, 1248 (11th
Cir. 2016) (discussing the similar factors for injunctive relief and
noting that “[a] delay in seeking a preliminary injunction of even
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8 Order of the Court 23-11528
only a few months—though not necessarily fatal—militates against
a finding of irreparable harm”).
In sum, DHS has not carried its burden of showing that the
second factor under the “traditional” stay framework, i.e., irrepa-
rable injury, is met. Indeed, “simply showing some ‘possibility of
irreparable injury,’ fails to satisfy the second factor.” Nken,
556 U.S.
at 435 (citation omitted) (quoting Abbassi v. INS,
143 F.3d 513, 514
(9th Cir. 1998)). Because DHS therefore has failed to establish one
of the two “most critical” factors, id. at 434, we do not find a stay
pending appeal to be warranted as to either of the district court’s
orders.
III. CONCLUSION
For these reasons, the motion to stay is DENIED.
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23-11528 J. PRYOR, J., Concurring in Part, Dissenting in Part 1
J. PRYOR, Circuit Judge, concurring in part and dissenting in part:
I would grant the motion with respect to the Parole With
Conditions policy.
