COMMUNITY LEGAL SERVICES IN No. 25-2808 EAST PALO ALTO; SOCIAL JUSTICE D.C. No. COLLABORATIVE; AMICA CENTER 3:25-cv-02847-AMO FOR IMMIGRANT RIGHTS; ESTRELLA DEL PASO; FLORENCE IMMIGRANT AND REFUGEE RIGHTS PROJECT; GALVESTON-HOUSTON IMMIGRANT ORDER REPRESENTATION PROJECT; IMMIGRANT DEFENDERS LAW CENTER; NATIONAL IMMIGRANT JUSTICE CENTER; NORTHWEST IMMIGRANT RIGHTS PROJECT; ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK; VERMONT ASYLUM ASSISTANCE PROJECT,

Plaintiffs - Appellees,

v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF THE INTERIOR; OFFICE OF REFUGEE RESETTLEMENT,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Araceli Martinez-Olguin, District Judge, Presiding Before: William A. Fletcher, Consuelo M. Callahan, and Lucy H. Koh, Circuit Judges. Order by Judge Koh Dissent by Judge Callahan KOH, Circuit Judge:

To protect unaccompanied children in immigration proceedings from the risks of “mistreatment, exploitation, and trafficking,” the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), 8 U.S.C. § 1232, directs that the Department of Health and Human Services (“HHS”) “shall ensure, to the greatest extent practicable,” that unaccompanied children in immigration custody receive legal representation. Id. § 1232(c)(5). To carry out this obligation, the Office of Refugee Resettlement (“ORR”) promulgated the “Foundational Rule” which states that “ORR shall fund legal service providers to provide direct immigration legal representation for certain unaccompanied children, subject to ORR’s discretion and available appropriations.” 45 C.F.R. § 410.1309(a)(4). Since 2012, and as recently as March 15, 2025, Congress has consistently appropriated funds to ensure compliance with the TVPRA’s statutory mandate. See Full-Year Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 119-4, Div. A Tit. I Sec. 1101(8), 139 Stat. 9, 11 (2025); Further Consolidated Appropriations Act, 2024, Pub. L. 118-47, Div. D Tit. I, 138 Stat. 460, 664–665 (2024); Consolidated Appropriations Act, 2012, Pub. L. 112-74, Div. F, Tit. II, 125 Stat.

2 786, 1077 (2011); S. Rep. 118-84, at 169. In this matter, the district court preliminarily enjoined Defendants HHS, ORR and the Department of the Interior (“DOI”) (collectively, the “Government”) from withdrawing government-provided funding for counsel to represent unaccompanied children in immigration proceedings. The Government appealed the issuance of the preliminary injunction and now moves to stay the injunction while this appeal is pending.

When deciding a motion for a stay pending appeal, the court considers “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the most critical,” and the court will address the last two factors only once the applicant has satisfied the first two factors. Id. at 434–35. “The party requesting a stay bears the burden of showing that the circumstances justify” issuance of the stay. Id. at 433–34.

We conclude the Government has shown neither a likelihood of success on the merits nor irreparable injury absent a stay and accordingly deny the

3 Government’s motion.1

I.

The Government offers two reasons why it believes it is likely to succeed on the merits. First, the Government argues the Tucker Act, 28 U.S.C. §