Salsabel ElHelou, an American citizen stuck in Gaza, wakes up every day to check her three children are still breathing. In August, an Israeli airstrike shattered her teenage son’s back – leaving him with an open and untreated wound. Her three children – 7-year-old Ayham, 12-year-old Banan and 15-year-old Almotasem – suffer from painful skin conditions caused by drinking and bathing in unclean water; their pus-filled wounds attract flies and mosquitoes. Two of them have lost their teeth due to malnutrition.
ElHelou is one of nine plaintiffs – a combination of US citizens, US permanent residents and Americans with immediate family trapped in Gaza – who the Biden administration sued on Thursday in an attempt to force the government to help the families leave. The Council on American-Islamic Relations and the law firm of Maria Kari argued that the US government violated the civil rights of these Palestinian Americans by abandoning them in a war zone.
The lawsuit, filed in federal court, emphasized that the US government has immediately evacuated other US citizens and their immediate relatives in similar, dangerous situations.
“There is absolutely no reason for us to have Americans or their immediate relatives remain on the ground.”
“There is a long history and precedent of the State Department and the Department of Defense working together to conduct evacuations out of conflict zones,” Kari said. It includes more recent operations in Israel and Lebanonas well as Afghanistan — after the fall of the Taliban in 2021 — and Sudan, after a civil war that broke out last year, closed the airport.
The lawsuit accused the administration of violating the plaintiffs’ collective constitutional rights to due process and equal protection under the laws.
“Defendants’ failure to extend similar evacuation efforts to Palestinian Americans has created a two-tiered system that sends a clear signal about the prioritization of its citizens, effectively supporting discriminatory policies that disproportionately disadvantage Palestinian Americans,” the lawsuit states.
All of the plaintiffs and their immediate family members have tried to leave and even received initial approval from the State Department, according to Kari. They signed up on an emergency intake form for evacuation assistance from the department and were told to monitor a Facebook page, which would post a final list of names and what day they could show up on Rafah crossing from Gaza to Egypt.
The respective plaintiffs and their family members, all of whom already had an initial State Department clearance, remained in Gaza because either their name or the name of their eligible immediate family member did not appear on the final border crossing list. In May Israel took the Rafah border — making it nearly impossible for civilians to exit through the crossing.
However, Rafah is not the only way civilians have left Gaza. The lawsuit notes that the United States has facilitated the evacuation of about 17 American doctors in May and some injured and sick children, along with their caregivers, since June, through the Kerem Shalom crossing.
“There is absolutely no reason for us to have Americans or their next of kin remain on the ground — and have the U.S. government wash its hands of the situation and say, ‘Oh, we don’t control who comes and goes from the Gaza Strip,’” Kari said. “That’s just not true, based on what we’ve seen happening — even since Rafah has closed.”
In ElHelou’s case, her name and her two youngest children’s names were on the official crossbreeding list, but her eldest son’s name was not. So she stayed in Gaza – unwilling to leave him behind. In a video message shared with The Intercept by Kari, ElHelou called on the US government to help evacuate her family through the Kerem Shalom crossing “as has been done for other humanitarian cases.”
“I’m asking for your help as an American mother to get my children and me to safety. Our lives depend on your swift action,” said ElHelou, staring into the camera and wearing a bright pink hijab. “I have a basic right to be protected by my government, especially in times of war. My children and I deserve to return to the safety of the United States without delay.”
United States Department of State and the military says it is official policy to minimize the number of US citizens, nationals and “designated other persons” who are “at risk of death” in combat zones. However, this policy does not spur any legally binding action – a challenge for lawyers who brought the case.
However, Kari noted that while there is no legal obligation to act, there is a precedent of others get help get out of war zones. This status quo creates the need for the government to act or face accusations, as it does in the latest lawsuit, that its selective inaction is discriminatory.
“Your constitutional protection does not end when you leave the country,” she said. “The U.S. government has a duty to citizens abroad.”
“Your constitutional protection does not end when you leave the country.”
The State Department could not provide current figures on how many US citizens, green card holders and immediate family members of Americans remain in Gaza. State Department spokeswoman Jessica Doyle said the agency believes the “vast majority” of U.S. citizens who were in Gaza and wanted to leave have done so, adding that the U.S. helped more than 1,800 U.S.-linked people leave Gaza before the Rafah- border closed. Doyle said the agency’s ability to currently confirm information about citizens in Gaza is “extremely limited due to the security situation.”
Doyle added that the US “does not control the border crossings or who is allowed to leave Gaza or enter other countries in the region.” She said the State Department will communicate “available withdrawal procedures from Gaza” with American citizens once the U.S. Embassy in Jerusalem receives information on how to do so.
The ElHelou’s aren’t the only family involved in the case dealing with an untreated medical condition or facing difficult decisions about whether to separate or stay together.
The State Department approved Khalid Mourtaga, a US citizen of Palestinian origin, to leave Gaza last December – along with his parents. However, only Mourtaga’s mother’s name appeared on the official crossbreeding list. She refused to leave without her son and husband.
Days before Israel took over the Rafah crossing, Mourtaga pleaded on CNN for the United States to evacuate them, according to the lawsuit.
Since then, he has contacted several US senators to help them leave but to no avail. Mourtaga has already fled for his life and been internally displaced at least seven times. Mourtaga and his parents lack clean water, and the little rice and flour available to them is often infested with worms. He has contracted hepatitis A.
Other medical conditions the plaintiff faces include diabetes, sciatica, potential amputation and a serious kidney condition.
Kari was among a group of lawyers across the country who filed similar lawsuits between October and December 2023 for Americans and their immediate family members stuck in Gaza; that team pressure resulted in the evacuation of about 60 to 80 people, they say.
Ghassan Shamieh, an immigration attorney and partner at the firm Shamieh, Shamieh and Ternieden, filed a similar lawsuit on behalf of two American citizens in the Bay Area on Nov. 1. He dropped the case about a week later because his clients were evacuated.
“I don’t think the timing was a coincidence,” he said. “A majority of those cases between October and December resulted in those people being evacuated, and I’m sure these trials had a role to play in that, because it puts pressure on the government to have to defend its position – and it’s a lot easier to evacuate them than to defend this discriminatory position.”
As the case plays out in the courts, the plaintiffs fear for their lives. While working on the case, Kari heard from one of them, Sahar Harara, that Israeli bombing had killed her father and badly injured her mother. Both are US permanent residents who were visiting Gaza to see family when Israel began its attack in the wake of the October 7 attack.
