Judge, with government’s consent, holds ICE to statement that no Afghan deportation flights are planned through Saturday

U.S. District Judge Valerie Caproni of the Southern District of New York on Tuesday, Nov. 3, issued a temporary restraining order, with the government’s consent, directing federal officials to abide by their statement to the court that no chartered or commercial flights are planned or confirmed to deport Afghan nationals to Afghanistan or Pakistan. The case is Project Rousseau, Inc. v. Venturella, No. 1:26-cv-09602.¹²

The order expires Saturday, Nov. 7, at 11:59 p.m. unless extended or dissolved. The defendants must respond to the emergency motion by Thursday, Nov. 5, at 9 a.m.¹ As read Wednesday afternoon, the docket showed no response and no hearing date. The case was assigned Nov. 4 to Judge Victor Marrero.²

What the order says

Caproni’s order recounts what government counsel said at a Nov. 3 conference, relaying Christopher George, an ICE deputy assistant director: ICE had no such flights “at least through the end of this week” and arranges charter and commercial travel “weeks in advance.” She wrote that the government “has effectively represented that no Afghanistan nationals will be deported from the United States to Afghanistan or Pakistan this week.”¹

Its terms refer to Afghan nationals, not only to the plaintiff’s clients. It makes no finding on whether the removals would be lawful.¹

Project Rousseau’s proposed order would have barred removing its clients from the country and required notice and a chance to raise fear-based claims.³ Those terms are not in the signed order.¹

The suit

Project Rousseau, a nonprofit providing free legal services, sued Nov. 2. The defendants are acting ICE Director David J. Venturella, Homeland Security Secretary Markwayne Mullin, Todd Blanche, named in the complaint as attorney general, and Secretary of State Marco Rubio.²⁴ Its motion defines the clients as people “subject to a final removal order to Afghanistan who may be deported to Pakistan.”⁵ The complaint brings a due process claim under the Accardi doctrine and a claim under the Administrative Procedure Act.⁴

Project Rousseau’s supervising attorney declared that advisories in a habeas case and communications from ICE told the group in late October that clients could be removed as early as Nov. 3.⁶

What each side said

The complaint says the plan rests on “the fragile assumption” that Pakistan will carry out its own removal to Afghanistan, and calls that step “a transfer between two warring parties” creating “additional grave risk of persecution, torture, and death.” It says there is “no public record” of diplomatic assurances from Pakistan.⁴

The government’s position on the record so far is what the order recounts.¹

Other reports

The Associated Press reported Nov. 4 that advocates and attorneys said more than 80 detained Afghans had contacted them after ICE notices, and quoted Shawn VanDiver, president of AfghanEvac, calling the order “a reprieve, not a resolution.”⁷ USA TODAY reported Nov. 3 that about 150 Afghans had been slated for a Nov. 3 deportation flight.⁸

What the records do not show

• The docket has no transcript of the Nov. 3 conference or sworn statement from George; his statements are known here through the order.²
• We could not open El Paso Matters’ pages; the Associated Press story was read as published by The News Minute.⁷ We did not open ABC News’ or CBS News’ reports, or the records of the habeas case the declaration mentions.⁶
• The filings do not say how many clients Project Rousseau represents. Counts of people affected come from reporting.⁴
• The complaint’s account rests on public reporting and “information and belief.” No record we opened shows any arrangement with Pakistan.⁴
• The order does not say whether flights will be booked after Nov. 7.¹