Noem v. Doe

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1 Cite as: 605 U. S. ____ (2025)
J
ACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 24A1079
KRISTI NOEM, SECRETARY, DEPARTMENT OF HOME-
LAND SECURITY v. SVITLANA DOE,
ET AL.
ON APPLICATION FOR STAY
[May 30, 2025]
The application for stay presented to JUSTICE JACKSON
and by her referred to the Court is granted. The April 15,
2025 order entered by the United States District Court for
the District of Massachusetts, case No. 1:25–cv–10495, is
stayed pending the disposition of the appeal in the United
States Court of Appeals for the First Circuit and disposition
of a petition for a writ of certiorari, if such a writ is timely
sought. Should certiorari be denied, this stay shall termi-
nate automatically. In the event certiorari is granted, the
stay shall terminate upon the sending down of the judg-
ment of this Court.
J
USTICE JACKSON, with whom JUSTICE SOTOMAYOR joins,
dissenting from the grant of the application for a stay.
When this Court evaluates whether or not to stay a lower
court’s order, the factors we apply are well established: The
applicant must show a fair prospect that we will grant cer-
tiorari and reverse, that the merits favor them, that irrep-
arable harm will befall them should we deny the stay, and,
in close cases, that the equities and public interest are on
their side. See Hollingsworth v. Perry, 558 U. S. 183, 190
(2010) (per curiam); Maryland v. King, 567 U. S. 1301, 1302
(2012) (R
OBERTS, C. J., in chambers); see also Nken v.
Holder, 556 U. S. 418, 434 (2009). In any given case, each
of these considerations bears on the appropriateness of the

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ACKSON, J., dissenting
requested intervention and is a prerequisite to obtaining re-
lief.
The Court has plainly botched this assessment today. It
requires next to nothing from the Government with respect
to irreparable harm. And it undervalues the devastating
consequences of allowing the Government to precipitously
upend the lives and livelihoods of nearly half a million
noncitizens while their legal claims are pending. Even if
the Government is likely to win on the merits, in our legal
system, success takes time and the stay standards require
more than anticipated victory. I would have denied the
Government’s application because its harm-related show-
ing is patently insufficient. The balance of the equities also
weighs heavily in respondents’ favor. While it is apparent
that the Government seeks a stay to enable it to inflict max-
imum predecision damage, court-ordered stays exist to min-
imize—not maximize—harm to litigating parties.
I
A
Nearly half a million Cuban, Haitian, Nicaraguan, and
Venezuelan noncitizens are presently in the United States,
after fleeing their home countries, by virtue of temporary
permission granted to them by the Department of Home-
land Security (DHS). Under the “CHNV” program, individ-
uals from these conflict-ridden countries receive “parole”
status for up to two years, which allows them to live in the
United States and, in some cases, work here lawfully. Pa-
role is discretionary by statute. DHS awards parole status
through a competitive and detailed application process that
involves a rigorous, individualized assessment of the appli-
cant’s circumstances.
On January 20, 2025, the President issued an Executive
Order that instructed the DHS Secretary to “[t]erminate all
categorical parole programs,” including CHNV. Exec. Or-
der No. 14165, §7(b), 90 Fed. Reg. 8468. DHS thereafter

3 Cite as: 605 U. S. ____ (2025)
J
ACKSON, J., dissenting
announced the termination of the lawful status of all CHNV
parolees in one fell swoop, through a single Federal Regis-
ter Notice. 90 Fed. Reg. 13611.
Respondents, who had already filed a putative class ac-
tion in the District of Massachusetts, amended their com-
plaint to challenge the DHS Notice. They alleged, as rele-
vant, that the Secretary had acted arbitrarily and
capriciously, contrary to law, and in excess of her legal au-
thority by prematurely terminating their parole. See Sec-
ond Amended Complaint in No. 1:25–cv–10495 (D Mass.),
ECF Doc. 68, p. 101, ¶4. The District Court temporarily
stayed DHS’s Notice; in its view, inter alia, the federal stat-
ute requires that parole terminations occur on a case-by-
case basis, rather than en masse. ___ F. Supp. 3d ___, ___
(Mass. 2025), App. to Application for Stay 36a (App.); see
also 8 U. S. C. §1182(d)(5)(A). The First Circuit declined to
disturb that decision pending appeal but invited “[a]ny
party intending to seek expedited briefing of the merits” to
“file an appropriate motion as soon as practicable.” App.
46a. Rebuffing the First Circuit’s invitation, the Govern-
ment filed a stay application with us.
B
The decision whether to stay a lower court’s order does
not reflect a back-of-the-napkin assessment of which party
has the better legal argument. Rather, “the dilemma [that]
stays historically addressed” was “what to do when there is
insufficient time to resolve the merits and irreparable harm
may result from delay.” Nken, 556 U. S., at 432. The cen-
tral question, then, is whether the applicant can be made to
wait until the conclusion of the litigation to vindicate their
purported legal rights, or whether irreparable harm will be-
fall the applicant in the interim such that the court must
act early to stave off that damage, for equity’s sake.
Consistent with this principle, this Court has long under-
stood that the “authority to grant stays” is only justified by

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ACKSON, J., dissenting
the “need ‘to prevent irreparable injury to the parties or to
the public’ pending review.” Ibid. (quoting Scripps-Howard
Radio, Inc. v. FCC, 316 U. S. 4, 9 (1942)). Hence, even if an
applicant is likely to succeed on the merits of their legal
claims, we also ask whether they have demonstrated irrep-
arable harm. Hollingsworth, 558 U. S., at 190. In addition,
the successful stay applicant must show that the harm they
would face from not receiving a stay is greater than the
harm that the opposing party would face if a stay were
granted, as well as that the requested stay is in the public
interest. See ibid.; Nken, 556 U. S., at 434. Where, as here,
the Government is a party, the balance-of-the-equities and
public-interest factors merge. Id., at 435.
Notably, if the court of appeals has already denied the
request for a stay, the applicant bears an “‘especially heavy
burden’” to receive a stay from this Court. Edwards v. Hope
Medical Group for Women, 512 U. S. 1301, 1302 (1994)
(Scalia, J., in chambers) (quoting Packwood v. Senate Select
Comm. on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist,
C. J., in chambers)). We have long viewed such an inter-
vention as “extraordinary.” Graves v. Barnes, 405 U. S.
1201, 1203 (1972) (Powell, J., in chambers) (explaining that
stays pending appeal from this Court “are granted only in
extraordinary circumstances”). Consequently, we have
deemed the irreparable-harm showing indispensable. Ibid.
Indeed, “[a]n applicant’s likelihood of success on the merits
need not [even] be considered . . . if the applicant fails to
show irreparable injury from the denial of the stay.”
Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1317 (1983)
(Blackmun, J., in chambers); see also, e.g., Rubin v. United
States, 524 U. S. 1301 (1998) (Rehnquist, C. J., in cham-
bers).
The bottom line is this: Our decision to issue a stay (or
not) involves more—much more—than merely forecasting
the eventual victor; after all, the underlying litigation is de-
signed for and dedicated to determining that. What stays

5 Cite as: 605 U. S. ____ (2025)
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ACKSON, J., dissenting
are about, at their core, is an equitable assessment of who
will be harmed, and to what extent, during the litigation
process, with the ultimate goal of reducing the real-world
consequences of the unavoidable, pending-case-related de-
lay.
II
In this case, the Government has plainly failed to satisfy
its burden of demonstrating irreparable harm. Nken, 556
U. S., at 433–434. DHS contends that the District Court’s
order prevents it from exercising its prerogatives with re-
spect to immigration and foreign policy, as a general mat-
ter. Application for Stay 24. But it does not establish an
urgent need to effectuate blanket CHNV parole termina-
tions now, before the courts can determine whether that en
masse agency action is lawful. For instance, the agency
does not identify any specific national-security threat or for-
eign-policy problem that will result from respecting extant
grants of CHNV parole while this case is pending. Moreo-
ver, as the Government admits, DHS retains the ability to
terminate CHNV parole on a case-by-case basis should such
a particular need arise, consistent with the District Court’s
order. Id., at 26. The lack of any concrete or irreparable
injury to the Government from having to wait to claim its
(assumed) victory is especially salient in light of the First
Circuit’s willingness to expedite its consideration of the
merits of this matter—an invitation that the Government
eschewed for more than three weeks.
The Government’s failure to show irreparable harm
should end the inquiry; its stay application fails on that ba-
sis alone. See Ruckelshaus, 463 U. S., at 1316–1317. But
an evaluation of the balance-of-the-equities factor provides
an additional reason why our intervention staying the Dis-
trict Court’s order is not appropriate.
Respondents have shown that tangible, imminent, and
significant harm is likely to befall them if this Court grants

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ACKSON, J., dissenting
the application and issues a stay. A stay would “immedi-
ately effectuate the en masse truncation of all parole grants
for approximately 500,000 current CHNV parole beneficiar-
ies in the United States.” Opposition to Stay 16. Many pa-
role recipients arrived here (at the invitation of the U. S.
Government) because their home countries were afflicted
by strife or they were otherwise subject to unsafe living or
working conditions. Parolees have sponsors here and, in
many cases, have integrated into American neighborhoods
and communities in the hopes of eventually securing long-
term legal status (e.g., asylum). No one disputes that social
and economic chaos will ensue if that many noncitizen pa-
rolees are suddenly and summarily remanded.
Respondents now face two unbearable options. On the
one hand, they could elect to leave the United States and,
thereby, confront “dangers in their native countries,” expe-
rience destructive “family separation,” and possibly “for-
fei[t] any opportunity to obtain a remedy based on
their . . . claims,” as the District Court found. App. 18a. On
the other, they could remain in the United States after pa-
role termination and risk imminent removal at the hands
of Government agents, along with its serious attendant con-
sequences. See id., at 19a (confirming that respondents
“may be subject to arrest and detention,” “will no longer be
authorized to work legally in this country,” and will lose
“opportunities to seek any adjustment of status”).
Either choice creates significant problems for respond-
ents that far exceed any harm to the Government, should
this Court decline the stay request. Both options might also
deprive this Court of jurisdiction to decide respondents’
pending claims. At a minimum, granting the stay would
facilitate needless human suffering before the courts have
reached a final judgment regarding the legal arguments at
issue, while denying the Government’s application would
not have anything close to that kind of practical impact.

7 Cite as: 605 U. S. ____ (2025)
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ACKSON, J., dissenting
* * *
With the stakes as high as they are in this case, measured
in terms of real harm to real people, one might reasonably
expect the Government to step up to equity’s scale with a
mountain of harm-related arguments, bolstered by evi-
dence. The Government bears the burden of showing why
it, or the public, will be irreparably injured should it be pre-
vented from exercising its policy preferences now—i.e.,
while the lawfulness of this agency action is being litigated.
This Court has repeatedly denied similar stay requests
from federal agencies in recent years, unmoved by the bald
contention that the Government is irreparably harmed
whenever its “substantial interest in carrying out the Pres-
ident’s policies,” Application for Stay 24, is burdened. See,
e.g., Application in Biden v. Texas, No. 21A21, p. 4 (arguing
that an injunction forcing the Government to comply with
Migrant Protection Protocols (MPP) “imposes a severe and
unwarranted burden on Executive authority over immigra-
tion policy and foreign affairs by ordering the government
to precipitously re-implement a discretionary program that
the Secretary has determined was critically flawed”); Biden
v. Texas, 594 U. S. ___ (2021) (denying the Government’s
application for a stay of the lower court’s MPP-related in-
junction); see also Application in United States v. Texas, No.
22A17, p. 38 (contending that the vacatur of a DHS Guid-
ance document “causes irreparable harm to [DHS] by inter-
fering with its authority to exercise [immigration] enforce-
ment discretion and allocate resources toward [the
Secretary’s] priorities” (internal quotation marks omitted;
some alterations in original)); United States v. Texas, 597
U. S. ___ (2022) (denying application for a stay).
The Government says no more than that today. Yet,
somehow, the Court has now apparently determined that
the equity balance weighs in the Government’s favor, and,
I suppose, that it is in the public’s interest to have the lives
of half a million migrants unravel all around us before the

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ACKSON, J., dissenting
courts decide their legal claims. Even assuming a likeli-
hood that the law permits the Government to terminate pa-
role grants in this fashion, I would let the courts decide that
highly consequential legal issue first—consistent with
standard stay practices and, especially, the necessary
harm-centered focus. Instead, the Court allows the Govern-
ment to do what it wants to do regardless, rendering con-
straints of law irrelevant and unleashing devastation in the
process.