Case: 21-40618 Document: 00516015057 Page: 1 Date Filed: 09/15/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 15, 2021 No. 21-40618 Lyle W. Cayce Clerk State of Texas; State of Louisiana, Plaintiffs—Appellees, versus United States of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Acting Commissioner, U.S. Customs and Border Protection, In his official capacity; United States Customs and Border Protection; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, In his official capacity; United States Immigration and Customs Enforcement; Tracy Renaud, Senior Official Performing the Duties of the Director of the U.S. Citizenship and Immigration Services, in her official capacity; United States Citizenship and Immigration Services, Defendants—Appellants. Appeal from the United States District Court for the Southern District of Texas USDC No. 6:21-CV-16 Before Southwick, Graves, and Costa, Circuit Judges. Case: 21-40618 Document: 00516015057 Page: 2 Date Filed: 09/15/2021 No. 21-40618 Gregg Costa, Circuit Judge: A district court issued a nationwide preliminary injunction preventing the United States from relying on immigration enforcement priorities outlined in memos from the Department of Homeland Security and Immigration and Customs Enforcement. The United States seeks a stay of that injunction pending appeal. For the reasons discussed below, we grant a partial stay. I. On Inauguration Day for the new President, the Acting Secretary of DHS issued a memo titled “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities.” Memorandum from David Pekoske (Jan. 20, 2021) (DHS Memo). It announced that the Department would undergo a comprehensive review of enforcement policies, announced the DHS’s interim enforcement priorities, and directed an immediate 100-day pause on removals. 1 This case is about the memo’s interim enforcement priorities. Noting DHS’s limited resources and inability to “respond to all immigration violations or even remove all persons unlawfully in the United States,” the memo announces the following civil enforcement priorities: 1. National security. Individuals who have engaged in or are sus- pected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national secu- rity of the United States. 2. Border security. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or 1 Texas initially brought a separate suit challenging the 100-day pause. The district court issued a temporary restraining order and eventually a preliminary injunction against enforcement of that pause. See Texas v. United States, -- F. Supp. 3d --, 2021 WL 2096669 (S.D. Tex. May 24, 2021). The United States did not appeal that ruling. 2 Case: 21-40618 Document: 00516015057 Page: 3 Date Filed: 09/15/2021 No. 21-40618 after November 1, 2020, or who were not physically present in the United States before November 1, 2020. 3. Public safety. Individuals incarcerated within federal, state, and lo- cal prisons and jails released on or after the issuance of this memo- randum who have been convicted of an “aggravated felony,” …
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