Afghan father who worked for US sues State Dept. to bring sons to safety

Mohammad calls when he can, although the connection from Afghanistan can be spotty at best.

But he says the calls to his sons, in the care of his brother and elderly mother, are almost as painful as their physical absence in his life, some 7,500 miles away in California.

"Are they going to kill us, Dad?" he says his nine-year-old "Salim" asked him recently.

His boy, he says, has seen too much already -- watching his mother die and his home take gunfire, essentially orphaned with his father unable to return because of Taliban death threats.

"Salim," his 11-year-old brother "Hamid," and their uncle and grandma move every few days, house to house, city to town, threatened by the Taliban, their father says, for his years of service to the U.S. government and the causes of Afghan women's and children's rights.

"They do not have any life actually," says Mohammad, whose full name and whose children's real names ABC News is not using for their safety. Unable to go to school or the doctor's, even to play with other children outside, he says, "every second they are living with fear because ... you know the Taliban, everyone knows."

Mohammad knows all too well. That fear, he says, forced him to seek asylum in August 2019 while visiting the U.S. for a work conference. After years of threats and constant moves for his family, the Taliban came to their residence on the second day of his trip to leave him a notice -- a death sentence for his advocacy work on projects funded by the U.S. Agency for International Development.

That fear also killed his "angel" - his wife of 12 years, he said. While he waited for his Special Immigrant Visa application to be processed, and his asylum case pended, he had his family moved again and again -- reassuring them that the U.S. would reward them for his work and grant them visas -- if they were patient.

But he says they were found by the Taliban in October 2020. Fleeing armed fighters at their door, he says, his wife suffered a heart attack and died. "Salim" and "Hamid" were just eight and ten years old, as "their mom lost her life in their arms," Mohammad says through tears. His brother and mother, who has been battling cancer, traveled at great risk across Afghanistan to take care of the boys.

"My life has been ruined. I lost my beloved one," he says. "Honestly, I'm cursing myself sometimes that because of me, she paid dearly. That's because of me. ... Because I provided services to the United States government."

In return for those services, however, Mohammad says he has not yet received an answer to his petition, seeking to bring his sons to safety.

So, he sued the government that he once worked with, that once used his face and voice to promote American values across rural Afghanistan. They broke their promise, he says, but what's worse, he says they've ignored his pleas - until this past week.

"Come on -- for God's sake, there is two minor children there alone without their parents!" he told ABC News, his voice rising with emotion. "But no one paid attention to that. ... They've not bothered themselves to respond."

A State Department spokesperson told ABC News they were aware of the lawsuit but declined to comment on pending litigation. The International Refugee Assistance Project, a New York-based legal advocacy group that represents Mohammad, said Friday that the government made contact about the lawsuit this week, although nothing has changed yet.

His story is similar to that of many Afghans, who worked for the U.S., spent years waiting for the Special Immigrant Visa, or SIV, they were promised, and have either been left behind by the U.S. withdrawal or seen family members trapped now under Taliban rule. Many now asking: what does the U.S. owe them and their families?

But Mohammad's case is also unique for the legal limbo he and his sons are in. This past January, he was granted chief of mission approval for his SIV, passed security vetting in the months afterwards, and in May, filed paperwork for the last step in the process - adjusting his legal status.

Despite filing to expedite his application, noting his sons were in "imminent danger," he says he only heard back this past week on that front as well, according to his representation. He now has an interview scheduled for mid-November.

In August, as the U.S.-backed Afghan government collapsed and President Joe Biden launched a massive evacuation operation, Mohammad says he had his sons, mother, and brother move to Kabul despite the risk. He says they pulled every lever they could to get them seats on a flight out, including contacting a local congressional office in California, where Mohammad has resided.

Instead, tens of thousands of Afghans were evacuated, but "the majority" of SIVs were left behind, a senior State Department official told reporters in September. Despite how close he was to a visa, Mohammad's sons were left behind.

But among the levers they pulled in August, he's still had his hands on one -- a novel legal approach to file a petition in federal court and require the State Department to bring his sons to safety.

Under the Afghan Allies Protection Act, which created the Special Immigrant Visa program, Congress directed the Secretary of State to make a "reasonable effort" to provide protection to Afghan applicants if the secretary determined they were in "imminent danger." Mohammad and IRAP filed in mid-August, hoping it would help get his family out.

The law has never been tested in this way, and for weeks the State Department did not respond to Mohammad's petition or the others filed by IRAP.

Earlier this month, IRAP and Mohammad sued the State Department to at the very least respond to their petitions. While the two sides are in contact as of this week, the case hasn't moved forward.

He's also filed for humanitarian parole, a temporary legal status to bring a foreigner into the U.S. for emergency reasons, for his sons, brother, and mother, who had stopped her cancer treatment in India to return to Afghanistan.

But advocacy groups say that the administration has not processed any humanitarian parole applications from Afghanistan since the withdrawal - despite receiving some 20,000 of them. U.S. Citizenship and Immigration Services, a division of the Department of Homeland Security that adjudicates parole applications, did not respond to questions about this from ABC News.

"I really don't know how can I convince the United States government that come on -- you are acting like you know nothing," says Mohammad, frustrated at the lack of movement.

While the State Department declined to comment on his case, the spokesperson told ABC News they continue their "diplomatic efforts regarding safe passage for U.S. citizens and for any Afghan partners or other foreign nationals who still want to leave Afghanistan."

"We are currently trying to facilitate the departure of Afghans to whom we hold special commitments because of their affiliation with the U.S. government, specifically our locally engaged staff and holders of passports with physical SIVs," they added.

But until Mohammad receives final SIV approval, that group cannot include his sons, and under current U.S. law, it will never include his mother and brother because they are not his dependents.

Even more, none of them will be able to receive physical visas because the U.S. embassy closed with the withdrawal. The agency is still "developing processing alternatives" to granting physical visas, the State Department spokesperson said, which "will take time and will depend on cooperation from third countries, as well as the Taliban."

In the meantime, Mohammad says he lives in agony, constantly dreading another call that his family has come face-to-face with Taliban reprisal again.

"Refraining from carrying out reprisals" is one of the United States's preconditions for the Taliban as it seeks international legitimacy and support, the State Department spokesperson said.

But those reprisals have been happening in recent months, including even before the militant group swept to power in a bloody campaign.

While the scheduled interview for his SIV has brought some hope, getting his boys out of Afghanistan will bring a fresh set of challenges, with flights from Kabul still severely limited and traveling over land across the border dangerous.

That's the reality for tens of thousands of Afghans who remain behind -- one that Mohammad was quick to acknowledge.

"I'm not selfish talking just about my kids - nobody is safe in Afghanistan," he says, with the return of the Taliban's brutal rule. "This is the pain that every person in Afghanistan who were working with the United States are suffering from that pain."

ABC News' Libby Cathey and Quinn Owen contributed to this report.