Unreported / Non-Citable
Background
On October 21, 2026, the court granted plaintiffs’ motion for a preliminary injunction enjoining defendants from conducting field operations involving U.S. citizens through Election Day in nine states where the Department of Homeland Security had focused surge operations. The injunction was stayed until October 23, 2026.
Defendants filed an ex parte motion to stay the injunction pending appeal on October 27, 2026 (Dkt. 90), and plaintiffs opposed the same day (Dkt. 91). The court now denies the stay motion.
The Court’s Holding
The court denied defendants’ motion to stay the preliminary injunction pending appeal because defendants failed to demonstrate irreparable harm, a necessary condition for a stay. The court rejected three asserted harms: (1) that the injunction’s oversight of DHS investigations violates separation of powers—compliance with the law is not a cognizable harm; (2) that a “chilling effect” on enforcement operations constitutes irreparable harm—the injunction mirrors the scope defendants themselves proposed and defendants represented their existing policies already comply; and (3) that the injunction prevents identification of noncitizens who might vote on November 3, 2026—defendants previously stated the operations investigate past voting, not the upcoming election, so any delay is brief and does not create exigency.
The court also noted defendants’ delay in seeking a stay (filing six days after the injunction order) undermines their urgency claim. Because irreparable harm was not shown, the court did not reach the remaining Nken factors.
Key Takeaways
- A stay pending appeal is an extraordinary remedy requiring a showing of irreparable harm; failure to meet this threshold is dispositive.
- Compliance with a court order enjoining allegedly unconstitutional conduct does not constitute legally cognizable irreparable harm.
- A party cannot claim irreparable harm from an injunction that matches the scope it advocated for and that its own policies already satisfy.
- Asserted harm from delaying investigations of past voting does not create exigency when the injunction expires after Election Day and lawful enforcement may continue.
- Unreasonable delay in seeking a stay undercuts claims of urgency.
Why It Matters
The order reinforces that the government cannot evade judicial review of election-period enforcement actions by invoking speculative or self-created harms. By holding defendants to their own representations about the scope and purpose of the challenged operations, the court ensures the preliminary injunction—narrowly tailored to prevent intimidation of U.S.
citizens during a sensitive pre-election window—remains in effect through the midterm elections while the appeal proceeds. The decision underscores the Ninth Circuit’s sliding-scale stay standard and the non-negotiable requirement of irreparable harm.
Because irreparable harm is an indispensable stay factor, the court stopped after rejecting the government’s three asserted injuries. It did not decide in this order whether defendants were likely to prevail on appeal, how the equities balanced, or where the public interest lay. The preliminary injunction therefore remained operative during the sensitive period through Election Day. The court also treated timing as evidence. Defendants waited six days after entry of an injunction covering only a short election window before seeking emergency relief, which undercut their assertion that immediate intervention was necessary. And because defendants had represented that the challenged investigations concerned past voting, the order reasoned that a brief delay would not prevent investigation of completed conduct. Practitioners seeking appellate stays should support each claimed injury with the record and move with urgency consistent with the asserted harm.