Nasser Mustapha Karouni v. Alberto Gonzales, Attorney General

Citations: 399 F.3d 1163; 2005 WL 517843Docket: 02-72651

Court: Court of Appeals for the Ninth Circuit; March 7, 2005; Federal Appellate Court

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Nasser Mustapha Karouni, a Lebanese citizen, petitioned for review of the Board of Immigration Appeals (BIA) decision that denied his asylum application and withholding of removal. The BIA affirmed an Immigration Judge's (IJ) ruling, which determined that Karouni did not demonstrate past persecution or a well-founded fear of future persecution. However, the Court of Appeals found that the evidence supported Karouni's well-founded fear of future persecution if returned to Lebanon. 

Karouni entered the U.S. in 1987 on a visitor visa and filed his asylum application in March 1998. Following the application, he was placed in removal proceedings due to overstaying his visa. At a hearing, he renewed his asylum claim, citing fears of persecution based on his homosexuality, AIDS status, and Shi'ite background. The IJ considered the socio-political climate in Lebanon, noting that the southern region, where Karouni is from, is dominated by Hizballah, which enforces Islamic law that punishes homosexuality severely, potentially with death. This context was critical in evaluating Karouni's fears about returning to Lebanon.

The excerpt outlines the oppressive environment for homosexuals in Lebanon, highlighting the Lebanese government's condemnation of homosexuality, which is supported by both Christian and Muslim religious leaders. Evidence includes Lebanon's boycott of the 1994 International Conference on Population Control due to its recognition of homosexuality, and statements from the Lebanese Embassy asserting that homosexuality is not accepted in Lebanon. The document references Karouni's personal experiences, including the systemic actions taken by local police against homosexuals, such as arrests and the establishment of 'rehabilitation programs' for those identified as gay.

Karouni recounts his lifelong identity as gay and describes traumatic events involving his cousin, Ramsey Khaleil, who faced violence and ultimately was killed, reportedly by Hizballah due to his sexual orientation. Karouni himself was threatened and interrogated by members of the Amal Militia, who attempted to arrest him for his sexual orientation. An armed friend intervened, preventing his arrest. The fate of Mahmoud, a man with whom Karouni had a relationship, ended tragically after he was arrested and later coerced into renouncing his sexuality.

Karouni's fear of persecution led him to flee Lebanon in 1987, but he returned twice for family reasons, each time feeling a strong fear of being targeted due to his sexual orientation. His account illustrates the pervasive danger and societal intolerance faced by homosexuals in Lebanon, contributing to his asylum claim based on a well-founded fear of persecution if returned to his home country.

Karouni, during his visits to Lebanon in 1992 and 1996, limited his public outings but attended a few private dinners with other homosexuals. After returning to the U.S., he learned that at least three of his friends, including Andre Baladi, faced severe consequences for their sexual orientation, such as arrest, beating, and even death. Baladi was interrogated by police and outed Karouni, which heightened Karouni's fear of persecution if returned to Lebanon. He also fears persecution due to his AIDS diagnosis, as there is a lack of treatment options in Lebanon, and seeking help would expose his sexual identity. Reports indicate that individuals with AIDS face discrimination and social stigma, often being ostracized or subjected to house arrest without treatment. Additionally, Karouni's family prominence increases his risk; his father was an influential businessman, and his great-uncle held a significant political position, making it difficult for him to remain anonymous. Since the 1975 civil war, wealthy Shi'ite landowners have been targeted by fundamentalists, heightening Karouni's danger due to his sexual orientation and family background. Despite the Immigration Judge (IJ) recognizing Karouni's credibility and evidence of persecution for homosexuality in Lebanon, the IJ denied his asylum request, concluding that Karouni did not prove past persecution or a well-founded fear of future persecution. Karouni was ordered removed from the U.S. on March 30, 1999.

Karouni failed to demonstrate past persecution, with the only evidence being an interrogation by Hizballah militia members in 1984. The Immigration Judge (IJ) determined that Karouni's fears of future persecution were based on speculation rather than concrete facts. Following an appeal to the Board of Immigration Appeals (BIA), which affirmed the IJ's decision without further opinion, Karouni filed a timely petition for review. The standard of review for the BIA's denial of asylum eligibility is whether it is supported by substantial evidence; findings of fact, including credibility, are upheld unless contradicted by compelling evidence. 

To qualify for asylum, an individual must show they are unable or unwilling to return to their home country due to persecution or a well-founded fear of persecution based on race, religion, nationality, social group membership, or political opinion. Persecution can occur at the hands of private individuals if the government is unable or unwilling to control them. An alien's fear must be both subjectively genuine and objectively reasonable, with credible testimony supporting the subjective aspect. To meet the objective requirement, Karouni must provide credible, direct, and specific evidence of past or future persecution.

Additionally, Karouni must establish that any feared future persecution would be on account of one of the five statutory grounds. While the Attorney General does not dispute that homosexuals qualify as a "particular social group" under the Immigration and Naturalization Act, Karouni must still prove the connection between the feared persecution and this status.

A "particular social group" is defined by voluntary association or an innate characteristic fundamental to its members’ identities, which they should not be compelled to change (Hernandez-Montiel v. INS). The BIA previously recognized that a Cuban gay asylum applicant belonged to such a group based on his homosexuality (Matter of Toboso-Alfonso), a precedent established by the Attorney General in 1994. In 1996, the INS acknowledged that individuals with HIV or AIDS could also form a particular social group and formally recognized homosexuals as such. The State Department supported this position, asserting in 2000 that persecution based on sexual orientation is unjustifiable under international law. 

In Hernandez-Montiel (2000), the court determined that gay men with female sexual identities in Mexico qualify as a protected particular social group under asylum law, thereby affirming that all alien homosexuals are part of a particular social group as defined by the INA. This conclusion clarified previous ambiguities in case law regarding the status of homosexuals under asylum provisions.

The Attorney General acknowledges that homosexuals are a 'particular social group' but contends that Karouni's feared future persecution in Lebanon would stem from potential future homosexual acts rather than his sexual orientation. The Attorney General argues that the Lebanese government arrests individuals for such acts, not for merely being homosexual. However, this argument is flawed; evidence suggests Karouni is already viewed as having engaged in homosexual acts, meaning he could face persecution regardless of future behavior, potentially meeting the threshold for asylum eligibility with even a ten percent chance of persecution. 

Moreover, the Attorney General's position presents Karouni with an unacceptable dilemma: return to Lebanon and risk persecution for future homosexual acts or live a celibate life. This stance undermines the fundamental nature of sexual identity and intimate relationships, protected under the Due Process Clause. The arguments presented imply that Karouni would be forced to alter a core aspect of his identity to avoid persecution, which the law does not require. Ultimately, the document asserts that there is no meaningful distinction between being persecuted for being homosexual and for engaging in homosexual acts, affirming that Karouni's fears constitute persecution based on his status as a member of a particular social group as defined by immigration law.

The Immigration Judge (IJ) determined that Karouni did not possess an objectively well-founded fear of future persecution, basing this on several findings that lack substantial evidence. The IJ specifically questioned Karouni's ability to corroborate that Hizballah militants were responsible for the shooting and subsequent murder of his cousin, Khalil, due to his homosexuality. Karouni explained the absence of newspaper accounts or police reports linking Hizballah or Khalil's sexual orientation to the incident, citing the cultural and legal context in Lebanon, which would likely prevent such public attribution.

The IJ's reliance on the lack of corroborative evidence is criticized, as asylum applicants can meet their burden solely through credible testimony. Karouni’s testimony, which was deemed credible, should suffice without the need for further corroboration. Additionally, Karouni provided significant evidence indicating Hizballah's military presence in his region, their enforcement of Islamic law, and the severe penalties for homosexuality, including death. He also presented evidence of abuses against suspected homosexuals by militia members, including a related BIA opinion detailing similar persecution.

Legal precedents established that asylum applicants do not need to pinpoint the exact motives of their persecutors; instead, they may use direct or circumstantial evidence to establish identity and motivation. This includes "obvious signs" that connect acts of persecution to the alleged perpetrators.

Shooting Khalil in the anus is viewed as strong evidence of persecution based on sexual orientation, indicating that the act was a brutal punishment for his perceived homosexuality. The court supports Karouni's assertion that Khalil was targeted and killed by Hizballah due to his sexual orientation, arguing that the circumstances alone suggest persecution tied to a protected ground. The court cites precedent stating that a lack of legitimate purpose for government harassment implies a motive based on protected characteristics.

Concerning whether Karouni had been "outed" to authorities, the Immigration Judge (IJ) mistakenly required corroborating evidence from friends, despite Karouni providing credible testimony that his name had been reported as homosexual by a friend. The IJ's demand for additional affidavits contradicts case law that states credible testimony alone suffices. Furthermore, an encounter with militia questioning Karouni about his sexuality undermines the IJ's assumption that he had not been identified as gay. 

Even if corroboration were necessary, Karouni presented a declaration from Dr. Mobassaleh, a Lebanese doctor, affirming that Karouni’s homosexuality is known in certain circles, which heightens the risk to his safety. The declaration implies that some individuals aware of Karouni's sexual orientation are those he would prefer remain uninformed, reinforcing his claim of being at risk for future persecution. The court concludes that Karouni faces a well-founded fear of persecution based on his sexual orientation.

Karouni's visits to Lebanon in 1992 and 1996, during which he attended to his dying parents, were deemed inconsistent with his claim of a well-founded fear of future persecution due to his sexual orientation. The Immigration Judge (IJ) argued that returning to a country where one fears persecution undermines credibility, referencing cases with differing outcomes based on the nature and context of the return. However, Karouni's returns were brief and motivated by familial obligations, as he cut short his 1992 visit out of fear and delayed his 1996 visit until after his mother's death.

The IJ's assertion that Karouni's actions indicated a lack of fear was criticized as personal conjecture rather than grounded in substantial evidence. Furthermore, Karouni's attendance at dinner parties with other homosexuals in 1992 was also deemed by the IJ to contradict his claim of fear. However, Karouni's testimony indicated that he limited his interactions due to fear of persecution and attended these gatherings only under the belief they were safe, as they were organized by a close friend. Thus, the evidence suggested that his attendance did not reflect an unreasonable fear of persecution. Overall, the findings indicated that the IJ’s conclusions lacked objective support and were based on assumptions rather than facts.

Karouni attended dinner parties with other homosexuals during his 1992 visit to Lebanon but refrained from doing so in 1996 due to fears of persecution after learning that attendees from 1992 had been arrested and his name was reported to authorities as a homosexual. During the 1996 visit, he avoided contact with others and stayed home, aligning with the IJ's speculation that a gay man fearing persecution would not socialize. The IJ also questioned Karouni's 1987 contact with an immigration lawyer, suggesting it was unusual since he did not seek asylum until ten years later, but this conclusion lacked substantial evidence and relied on speculation. Karouni explained he was unaware of his eligibility for asylum or derivative status through his brother, focusing instead on obtaining permanent residency through work. The IJ's suggestion that criminal convictions indicated doubt about Karouni's fear of persecution was similarly speculative, as no precedent supports that a person's criminal history can negate an objective fear of persecution. Ultimately, the IJ's conclusion that Karouni lacked a well-founded fear of future persecution is not backed by substantial evidence.

Karouni has demonstrated both a subjective and objective well-founded fear of future persecution due to credible threats from Hizballah militants and certain Lebanese government factions against homosexuals. He has been "outed" as gay in Lebanon and has connections to other homosexuals who have faced apprehension and interrogation, increasing his risk of persecution. His family's prominence and his AIDS diagnosis further complicate his ability to evade persecution if returned to Lebanon. The standard for establishing a well-founded fear allows for even a ten percent chance of persecution, which Karouni surpasses.

The Immigration Judge (IJ) assumed Karouni could not meet the higher standard for withholding of removal because he allegedly failed to demonstrate past persecution or a well-founded fear of future persecution. However, since Karouni is found statutorily eligible for asylum, the case is remanded to the Board of Immigration Appeals (BIA) to consider his eligibility for withholding of removal. The standard for withholding is higher than for asylum; if the BIA determines he meets this standard, withholding must be granted. 

The conclusion is that the petition for review is granted, the IJ's finding of no well-founded fear is reversed, and the case is remanded for further evaluation of Karouni's claims.

Karouni was convicted in 1988 for a hit-and-run incident and in 1994 for grand theft involving art books from a library. These convictions are not relevant to his removability in immigration proceedings, although the Immigration Judge (IJ) referenced them to suggest that an individual fearing future persecution would likely avoid such behavior. The Immigration and Naturalization Service (INS) ceased operations on March 1, 2003, being replaced by the Department of Homeland Security, but the case still refers to the INS due to the timing of the proceedings. Hizballah has been classified as a Foreign Terrorist Organization since 1997, with President George W. Bush highlighting them as a threat in his 2002 State of the Union Address. 

Karouni expressed concerns about revealing his sexual orientation to his family, fearing it would lead to their social ostracism and potential persecution due to societal and governmental discrimination against homosexuality. Following Israel’s invasion of Lebanon in 1982, radical elements of Amal formed Hizballah. Karouni's appeal is subject to the permanent provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) since his immigration proceedings began after April 1, 1997. He contends that the Board of Immigration Appeals (BIA) erred in affirming the IJ's decision without a detailed opinion, a claim rejected based on legal precedent. Karouni does not contest the IJ's finding of no past persecution, meaning he must demonstrate a well-founded fear of future persecution to qualify for asylum. From 1994 to 1999, the Attorney General granted asylum to approximately 300 LGBTQ individuals. Any reversal of previously established INS directives would require a compelling justification to avoid being deemed arbitrary or an abuse of discretion.

Agencies must adhere to their own procedures when individual rights are impacted, as established in Church of Scientology of Cal. v. United States. This principle applies to internal policies, such as those from the IRS. The Third Circuit has recognized homosexuals as a "particular social group," which the Eighth Circuit has also assumed in prior rulings. An Immigration Judge (IJ) noted conflicting evidence regarding the treatment of homosexuals in Lebanon, indicating that while individuals may face prosecution for homosexual conduct, mere homosexuality is not explicitly illegal. Evidence suggests that Karouni, a gay man, was targeted by armed militia, implying he had been "outed." Additionally, Karouni's asylum application highlighted that police dropped a case regarding a shooting incident because of his sexual orientation. Legal precedents indicate that a well-founded fear of future persecution is not diminished by an alien's continued presence in their home country prior to fleeing. Factors such as the compelling circumstances surrounding Karouni's situation, including his parents' impending demise, contribute to the legitimacy of his fear of persecution.