Homeland Security Secretary Markwayne Mullin, one of two cabinet officials 66 lawmakers asked to cancel the Afghan deportation flight. Official DHS portrait by Tia Dufour (public domain).
An Afghan deportation flight from Alexandria, Louisiana, to Pakistan was scheduled for Tuesday, Nov. 3, and 66 members of Congress have asked Secretary of State Marco Rubio and Homeland Security Secretary Markwayne Mullin to call it off. The flight would carry some of the nearly 200 Afghans that a U.S. official told CBS News are in ICE custody, and the government’s only public defense of the plan so far rests on one word: assurances.
“Illegal aliens being sent to a third country receive notice and assurances prior to their removal,” DHS told CBS News on Monday, while declining to discuss the flights, citing operational security. The department did not say whether any assurance from Pakistan covers what happens after the plane lands. That matters because a sworn declaration by an ICE supervisory deportation officer, filed Oct. 30 and reported by CBS, says the plane’s final destination is Pakistan “with further transport onward to Afghanistan.” That filing was the subject of earlier coverage of the ICE declaration; the new question is whether the government’s own safeguard reaches the second leg of the trip.
Why a Pakistan assurance may not reach Afghanistan
Diplomatic assurances have real legal force in a narrow setting. Under 8 C.F.R. 208.18(c), the Secretary of State may forward a foreign government’s assurance that a person will not be tortured there, and if the Attorney General finds it sufficiently reliable, the person’s torture claim is not considered further by an immigration judge. DHS’s third-country removal guidance from March 2025, which took full effect after the Supreme Court lifted a lower-court injunction in June 2025, likewise treats credible assurances from the receiving country as enough to proceed without further screening.
Both mechanisms are tied to a specific country. An assurance from Islamabad speaks to treatment in Pakistan. It says nothing about Taliban-run Afghanistan, which the United States does not recognize and from which no assurance could arrive through normal diplomatic channels. For an Afghan whose removal order names Afghanistan and who never won protection, the route is legally beside the point: a valid order can be carried out through any transit country. For anyone holding withholding of removal or Convention Against Torture protection as to Afghanistan, a transit-country assurance is likely to be a thin answer to a judge asking where that person will actually end up.
How many passengers fall into that second group is unknown, a point first raised when the Afghan flight to Pakistan surfaced on Oct. 30. Reuters, citing The New York Times, reported that more than 150 Afghans are expected to be deported; the government has confirmed neither that figure nor the CBS custody count. Many Afghans lost their main shield when DHS ended Afghanistan’s Temporary Protected Status effective July 14, 2025. The department’s Federal Register termination notice estimated about 11,700 Afghan TPS holders at the time, about 3,600 of whom had been approved for permanent residence as of April 7, 2025, part of a broader run of TPS terminations.
Congress writes, courts decide case by case
“Sending dozens of people back to one of the most dangerous countries on earth … is a death sentence,” the lawmakers wrote in Monday’s letter, Al Jazeera reported. CBS said the letter asks the administration to cancel removal flights for both Afghans and Iranians, and Human Rights First told Al Jazeera it had confirmed the Tuesday flight. Rubio, asked about the plan on Oct. 31, referred the question to DHS, according to CBS. A congressional letter carries no legal force; its weight is political.
The courts, meanwhile, are moving one detainee at a time. In Sadat v. Mullin, U.S. District Judge Michael Nachmanoff ordered officials to say whether the charter would fly straight to Afghanistan or stop in Pakistan, and CBS reported that Said Mansor Sadat was later taken off the flight list and released after a judge found his continued detention violated due process. In El Paso, Judge Kathleen Cardone denied another Afghan’s emergency request on Oct. 29, ruling the court lacked jurisdiction to halt his removal, and a Louisiana federal judge denied a third request on Oct. 30. That split reflects the tight limits federal law puts on district courts asked to stop the execution of a removal order; detention claims have proved easier to win than claims to stay off the plane.
The next signals are concrete: whether the charter departs, whether any passenger turns out to hold country-specific protection, how a judge rules on a second emergency motion that attorney Simon Sandoval-Moshenberg told CBS was still pending Monday night, and whether DHS ever describes in court what Pakistan agreed to. Past cases suggest courts look hard at unexpected destinations, as a Minnesota judge did in ordering the return of a man deported to the Central African Republic, but often only after the plane has landed.
This article is for general information and is not legal advice.
Sources: CBS News, ICE planning to deport Afghans through Pakistan (Nov. 2, 2026); Al Jazeera, US lawmakers ask Trump administration to stop deportation of Afghans (Nov. 3, 2026); Reuters, Trump administration plans to deport some Afghan immigrants to Afghanistan (Oct. 31, 2026); 8 C.F.R. 208.18, Implementation of the Convention Against Torture; DHS, Termination of the Designation of Afghanistan for Temporary Protected Status, 90 FR 20309 (May 13, 2025).
About the Author
