Karouni v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NASSER MUSTAPHA KAROUNI, 
Petitioner, No. 02-72651
v.
 Agency No.
A75-530-521
ALBERTO GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 1, 2004—Pasadena, California
Filed March 7, 2005
Before: Alfred T. Goodwin, Harry Pregerson, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Pregerson
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General. Fed. R. App. P. 43(c)(2).
2839
2842 KAROUNI v. GONZALES
COUNSEL
Douglas D. Nelson, San Diego, California, for the petitioner.
Luis E. Perez (argued), Deborah N. Misir (briefed), Office of
Immigration Litigation, Civil Division, Department of Justice,
Washington, D.C., for the respondent.
OPINION
PREGERSON, Circuit Judge:
Nasser Mustapha Karouni (“Karouni”), a native and citizen
of Lebanon, petitions for review of a decision of the Board of
KAROUNI v. GONZALES 2843
Immigration Appeals (“BIA”) that denied his application for
both asylum and withholding of removal. The BIA affirmed
without opinion a decision of the Immigration Judge (“IJ”)
that found that Karouni failed to show that he was persecuted
in the past, or that he had a well-founded fear of future perse-
cution.
Because the evidence compels the conclusion that Karouni
has a well-founded fear of future persecution if he were
removed to Lebanon, we grant Karouni’s petition for review.
I. BACKGROUND1
Karouni is a native and citizen of Lebanon, who first
entered the United States in 1987 on a multiple-entry, non-
immigrant visitor for pleasure visa.2 In March 1998, Karouni
timely filed an application for asylum with the Immigration
and Naturalization Service (“INS”).3 See 8 C.F.R.
§ 1208.4(a)(2) (requiring all applications for asylum to be
filed within one year after arrival in the United States or one
year after the Illegal Immigration Reform and Immigrant
Responsibility Act’s (“IIRIRA”), Pub. L. No. 104-208, 110
Stat. 3009 (Sept. 30, 1996), April 1, 1997, effective date,
1
The following facts are taken as true because the IJ found Karouni to
be credible, and the BIA made no findings of its own. See Rodriguez-
Matamoros v. INS, 86 F.3d 158, 159 (9th Cir. 1996).
2
In 1988, Karouni was convicted for a hit and run vehicle accident when
a motorcycle hit him from behind, but he left the scene. In 1994, he was
convicted of grand theft of property when he removed plates from art
books at a public library. Because these convictions are not the basis for
Karouni’s removability, they would be totally irrelevant to these proceed-
ings, except, as discussed below, the IJ found that they were examples of
behavior that an individual who feared future persecution would not likely
commit. See infra Part III(A)(3)(f).
3
The INS ceased to exist on March 1, 2003, when its functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. However, we
refer to the agency as the INS here because the proceedings in this case
were instigated before the transfer.
2844 KAROUNI v. GONZALES
whichever is later). On September 14, 1998, in response to
Karouni’s asylum application and because Karouni over-
stayed his visa, the INS placed Karouni in removal proceed-
ings by issuing a Notice to Appear.
At a November 30, 1998, hearing before an IJ, Karouni
conceded removability, renewed his application for asylum,
and additionally sought withholding of removal and voluntary
departure. On March 30, 1999, the IJ held an evidentiary
hearing at which Karouni testified and both Karouni and the
INS submitted documentary evidence. Karouni testified that
he feared that he would be persecuted if removed to Lebanon
because he is a homosexual, suffering from AIDS, and
Shi’ite.
To understand the context of Karouni’s testimony concern-
ing the persecution he fears if removed to Lebanon, we begin
with a discussion of the social, religious, political, and cul-
tural climate facing homosexuals in Lebanon as established
by the evidence in the record and considered by the IJ.
Karouni grew up in the southern Lebanese province of
Tyre. According to Karouni’s testimony and a July 1996
report from the United Nations High Commission Refugees,
the south of Lebanon, including Tyre, is largely controlled by
an Islamic paramilitary organization named “Hizballah.”4
“Hizballah applies Islamic law in areas under its control.”
Bureau of Democracy, Human Rights, and Labor, United
States Dep’t of State, 1997 Country Report on Human Rights
4
Since 1997, Hizballah has been designated a Foreign Terrorist Organi-
zation by the Department of State. See 62 Fed. Reg. 52650 (Oct. 8, 1997);
64 Fed. Reg. 55112 (Oct. 8, 1999); 66 Fed. Reg. 51088 (Oct. 5, 2001); 68
Fed. Reg. 56860 (Oct. 2, 2003). In his January 29, 2002, State of the
Union Address, President George W. Bush specifically mentioned Hizbal-
lah as part of a “terrorist underworld” that threatens United States inter-
ests. The State of the Union Address by the President of the United States,
148 Cong. Rec. H98-05 (daily ed. Jan. 29, 2002) (statement of Pres.
Bush).
KAROUNI v. GONZALES 2845
Practices — Lebanon (Jan. 30, 1998), available at http://
www.state.gov/www/global/human_rights/1997_hrp_report/
lebanon.html. Under Islamic law, homosexuality is “hadd” —
that is, according to Karouni, “punishable by death.” See, e.g.,
Jin S. Park, Comment, Pink Asylum: Political Asylum Eligi-
bility of Gay Men and Lesbians Under U.S. Immigration Pol-
icy, 42 UCLA L. Rev. 1115, 1143-44 (1995) (“The most
severe forms of punishment are found in countries that apply
the Islamic Law, Sharia, which impose the death penalty after
four convictions of consensual homosexual activity.”).
It is not entirely clear from the record whether the Hizbal-
lah operates beyond the Lebanese government’s control or
with its complicity. Nevertheless, the record is clear that the
Lebanese government condemns homosexuality. For exam-
ple, Karouni submitted Reuters and UPI news articles noting
that Lebanon boycotted the 1994 International Conference on
Population Control because the conference’s agenda recog-
nized homosexuality, which is “vehemently condemned by
the country’s Christian and Muslim religious leaders.”
Karouni also submitted an excerpt from a book on interna-
tional gay and lesbian liberation and oppression, which quotes
the Lebanese Embassy in the Hague as stating that “homosex-
uality is not accepted in Lebanon.” Even Karouni’s family,
who, except for his sister, does not know that he is gay,
“agrees that [homosexuality] is a ‘crime’ which deserves
strong punishment.”5
5
According to Karouni, he decided not to tell the rest of his family that
he is gay because, in addition to their belief that homosexuality is a crime,
he wishes to protect them from being ostracized. As Karouni stated in his
asylum application,
if someone outside the family learned of my homosexuality, then
my family might be socially ostracized, discriminated against by
fundamentalists and the government and any remaining protec-
tion or status due to their position in society would be lost. My
family would be forced to ostracize me in order to avoid persecu-
tion so that they do not lose standing in the government and soci-
ety.
2846 KAROUNI v. GONZALES
The record is also quite clear that the Lebanese govern-
ment, or at least local governments within Lebanon, attempt
to curb homosexual conduct through oppressive state action.
For example, Karouni submitted to the IJ six articles pub-
lished in the Lebanese newspaper “Nahar” between 1991 and
1993 which indicate collectively that various Lebanese police
forces had arrested dozens of young men for practicing homo-
sexuality. He also submitted a 1994 Reuters article in which
a Beirut Police Major was reported to have said that he was
leading a “moral brigade” and “combatting a wave” of homo-
sexuality in Beirut by placing homosexuals in “rehabilitation
programs.” Against this backdrop of systemic intolerance, and
on the basis of his own experiences and those of his homosex-
ual peers, Karouni fears persecution if removed to Lebanon.
Karouni stated in his asylum application that he has “al-
ways been gay.” As a youth in the late-1970s, Karouni and his
cousin, Ramsey Khaleil (“Khaleil”), spent time together
secretly meeting other gay men. Sometime between the late-
1970s and 1984, Khaleil’s family learned that Khaleil was gay
and ostracized him. In 1984, Khaleil was shot in the anus at
his apartment, apparently by the Hizballah because he was
gay. Khaleil survived the injuries but, in 1986, was shot to
death at his apartment, again apparently by the Hizballah.
Karouni has also been the subject of anti-gay animus. In
Fall 1984, two men armed with machine guns, “dressed in
militia garb,” and identifying themselves as members of the
Amal Militia,6 interrogated and attempted to arrest Karouni at
his apartment after they learned that Karouni had been
involved in a homosexual relationship with a man named
Mahmoud. Karouni stated in his asylum application, “I was
told to confess to the crime of homosexuality. They told me
6
After Israel’s 1982 invasion of Lebanon, radical members of Amal dis-
satisfied with many of Amal’s moderate practices formed the Hizballah.
See, e.g., Sami G. Hajjar, Hizballah: Terrorism, National Liberation, or
Menace? 5 (2002).
KAROUNI v. GONZALES 2847
to name other homosexuals. They asked me whether I knew
the names of other persons they suspected of being homosex-
ual. I was very frightened. . . . I nervously feigned ignorance.”
An armed neighbor and friend of Karouni’s interrupted the
encounter and prevented the militia-men from arresting
Karouni. According to Karouni’s asylum application, “The
men finally left yelling derogatory terms at me. They said that
the Koran condemns persons like me.”
Mahmoud was not as fortunate as Karouni: he was arrested
and beaten by Amal militia-men, and Karouni never saw him
again. According to Mahmoud’s cousin, Toufic, Mahmoud
“repented” to the authorities and “chose to follow God” by
returning to a heterosexual life. Karouni believes that Mah-
moud told the authorities that Karouni is gay. After Karouni’s
encounter with the militia-men at his apartment, he avoided
his apartment for a couple months and started “playing a
straight life” by dating women.
In 1987, shortly after Khaleil’s murder, Karouni finally fled
Lebanon for the United States because, in his words, “life was
intolerable” and he “was living in fear every moment of [his]
life.” Nevertheless, Karouni was compelled to twice return to
Lebanon. In 1992, Karouni returned to Lebanon to see his
father, who was dying of cancer, but out of fear of persecution
returned to the United States before the funeral. In 1996, he
returned to Lebanon to visit his mother, who was ill. He
delayed his trip out of fear of persecution and, by the time he
arrived in Lebanon, his mother had died.
Karouni generally avoided going out in public while in
Lebanon during his 1992 and 1996 visits but in 1992 attended
a handful of (i.e., three or four) private dinner parties,
arranged by Toufic, with other homosexuals. After Karouni
returned to the United States, he learned through his sister,
aunt, friends, and Lebanese newspapers that at least three of
the friends with whom he dined were arrested, detained,
beaten, and/or killed because they were gay. One of these
2848 KAROUNI v. GONZALES
friends, Andre Baladi, was arrested by Lebanese police
because he is gay. Baladi was jailed, beaten, and interrogated
for names of other homosexuals. He cooperated with the
authorities and told them what he knew. Karouni learned that
during the interrogation, Baladi “outed” Karouni as a gay
man. About five months after Baladi’s encounter with the
police, another one of Karouni’s friends, Hassan, was jailed,
beaten, and interrogated by the police. Karouni believes that
Hassan was outed to the police by Baladi. Thus, Karouni fears
that, if removed to Lebanon, he would be identified and perse-
cuted for having associated with these homosexual friends.
Indeed, Karouni testified that Toufic confirmed that Karouni’s
name was given to the Hizballah militants who persecuted his
homosexual friends, and a declaration from a Lebanese doctor
submitted by Karouni to the IJ confirmed that “Karouni’s
homosexuality is no secret among certain circles in Lebanon.”
Karouni also fears persecution because he has AIDS.
According to Karouni, there is functionally nobody in Leba-
non from whom he can seek treatment for his disease. Doing
so, according to Karouni, would require him to admit that he
is infected. Admitting that he is infected would, in turn, con-
firm suspicions that he is gay. According to a letter by another
Lebanese doctor submitted by Karouni to the IJ, “AIDS in
Lebanon is still looked upon as, firstly, a stamp of verification
of homosexuality, and secondly, as the deserved punishment
from God. . . . The unavailability of medical treatment . . . fur-
ther depicts the level of discrimination against individuals
with AIDS.” Additionally, Karouni testified that he has read
articles in the Lebanese press indicating that people who are
known to have AIDS are put under “house arrest” and receive
no treatment for their disease.
Finally, Karouni testified that he would be unlikely to live
in anonymity if returned to Lebanon because of his family’s
prominence and that this exacerbates his fear of persecution.
In particular, Karouni’s father was a successful international
businessman and landowner who had nightly meetings with
KAROUNI v. GONZALES 2849
the Lebanese Cabinet. Karouni’s great-uncle, Adel Osseiran,
was the head of the Lebanese Parliament and, akin to our own
John Hancock, is famous in Lebanon for signing the docu-
ments that gave Lebanon its independence from France in
1943. Karouni believes that his family name, “Karouni Ossei-
ran,” is so recognizable that it identifies him as both a mem-
ber of a prominent family and a Shi’ite. According to
Karouni, since the 1975 Lebanese civil war, many Islamic
fundamentalists view wealthy Shi’ite landowners as enemies
per se and target them for no reason other than that they are
Shi’ite and landowners. Being gay and a descendant of promi-
nent Shi’ite landowners, in Karouni’s view, is a double-edged
sword because the prominence of his family’s name would
make it much more difficult for him hide from his would-be
persecutors, who — the evidence strongly suggests — already
know that he is gay.
On March 30, 1999, the IJ denied Karouni’s request for
asylum, withholding of removal, and voluntary departure.
Karouni was ordered removed. The IJ found Karouni to be a
credible witness. The IJ also recognized that Karouni pre-
sented documentary evidence “to show that individuals in
Lebanon are prosecuted for homosexual conduct.” But the IJ
found that Karouni was, nonetheless, not entitled to relief
because he had not established that he was persecuted in the
past, and did not demonstrate a well-founded fear of future
persecution.
Specifically, the IJ found that Karouni had not established
that he was persecuted in the past because “[t]he only item of
possible past persecution . . . is . . . that in 1984 he was inter-
rogated by two armed men of the Hizballah militia.” With
respect to Karouni’s fear of future persecution, the IJ found
that Karouni’s testimony was “full of supposition and devoid
of supporting facts.”
Karouni timely appealed to the BIA, which on July 19,
2002, summarily affirmed the IJ. This timely petition for
review followed.
2850 KAROUNI v. GONZALES
II. STANDARD OF REVIEW7
We review the BIA’s decision that an alien has not estab-
lished eligibility for asylum or withholding of removal to
determine whether it is supported by substantial evidence.
Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir. 2003);
see also Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.
2003) (“We review the BIA’s findings of fact, including cred-
ibility findings, for substantial evidence and must uphold the
BIA’s finding unless the evidence compels a contrary
result.”). When, as here, the BIA affirms an IJ’s decision
without opinion, we review the IJ’s decision, which consti-
tutes the final agency determination. See He v. Ashcroft, 328
F.3d 593, 595-96 (9th Cir. 2003).8
III. ANALYSIS
A. Asylum
1. Statutory Requirements
[1] The Attorney General may grant asylum to an alien who
qualifies as a refugee — that is, one who is unable or unwill-
ing to return to their home country because of “persecution or
a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1).
Persecution is “ ‘the infliction of suffering or harm upon those
who differ (in race, religion, or political opinion) in a way
regarded as offensive.’ ” Prasad v. INS, 47 F.3d 336, 339 (9th
7
Karouni’s appeal is governed by the permanent provisions of the
IIRIRA because immigration proceedings were initiated after April 1,
1997. See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir. 1997).
8
Karouni argues that the BIA erred by affirming without opinion the
decision of the IJ. We reject this argument because it is foreclosed by Fal-
con Carriche v. Ashcroft, 350 F.3d 845, 849-50 (9th Cir. 2003), which we
decided after Karouni filed his opening brief.
KAROUNI v. GONZALES 2851
Cir. 1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27
(9th Cir. 1988)). “Persecution need not be directly at the
hands of the government; private individuals that the govern-
ment is unable or unwilling to control can persecute some-
one” for purposes of asylum. Singh v. INS, 134 F.3d 962, 967
n.9 (9th Cir. 1998) (citing Sangha v. INS, 103 F.3d 1482,
1487 (9th Cir. 1997)).
[2] “An alien’s ‘well-founded fear of persecution’ must be
both subjectively genuine and objectively reasonable.”
Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (citing
Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.
1999)). Karouni’s credible testimony satisfies the subjective
component. See Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th
Cir. 2004). To satisfy the objective component, an alien must
show that he has suffered from past persecution or that he has
a “ ‘good reason to fear future persecution by adducing credi-
ble, direct, and specific evidence in the record of facts that
would support a reasonable fear of persecution.’ ” Nagoulko,
333 F.3d at 1016 (quoting Duarte de Guinac, 179 F.3d at 1159).9
2. “On account of race, religion, nationality, membership
in a particular social group, or political opinion”
[3] As noted in the preceding section, to qualify for asylum,
Karouni must establish that the future persecution he fears
would be on account of one of the five statutory grounds:
“race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1). The Attorney General does not dispute that, as a
general matter, homosexuals constitute a “particular social
group” within the meaning of the Immigration and Naturaliza-
tion Act (“INA”). Indeed, it would be difficult for the Attor-
ney General to do so.
9
Karouni does not take issue with the IJ’s finding that he did not suffer
past persecution. As a result, Karouni may qualify for asylum only by
establishing a well-founded fear of future persecution. See Nagoulko, 333
F.3d at 1016.
2852 KAROUNI v. GONZALES
“[A] ‘particular social group’ is one united by a voluntary
association, including a former association, or by an innate
characteristic that is so fundamental to the identities or con-
sciences of its members that members either cannot or should
not be required to change it.” Hernandez-Montiel v. INS, 225
F.3d 1084, 1093 (9th Cir. 2000). In Matter of Taboso-Alfonso,
20 I. & N. Dec. 819 (BIA 1990), the BIA upheld an IJ’s deter-
mination that a Cuban gay asylum applicant had established
membership in a particular social group defined by the status
of being homosexual. See id. at 822-23. In 1994, the Attorney
General designated Taboso “as precedent in all proceedings
involving the same issue or issues.” Att’y Gen. Order No.
1895-94 (June 19, 1994).
[4] Two years later, the INS recognized that “in certain cir-
cumstances . . . persons with HIV or AIDS may constitute a
particular social group under refugee law.” Memorandum
from David A. Martin, INS Office of General Counsel (Feb.
16, 1996), reported in 73 Interpreter Releases 909, 909 (July
8, 1996). And shortly thereafter, the INS formally adopted the
“position . . . that homosexuals do constitute a particular
social group.”10 Memorandum from David A. Martin, INS
General Counsel, to All Regional and District Counsel (Apr.
4, 1996) (emphasis added), available at http://www.lgirtf.org/
newsletters/Fall96/FA96-14.html.11 The position of the State
10
According to the International Gay and Lesbian Human Rights Com-
mission, from 1994 to 1999, the Attorney General granted asylum to about
300 gays and lesbians. See Denise C. Hammond, Immigration and Sexual
Orientation: Developing Standards, Options, and Obstacles, 77 Interpreter
Releases 113, 118 (Jan. 24, 2000).
11
The Attorney General would be hard-pressed to retreat from the posi-
tion adopted by the INS’ April 4, 1996, memorandum without offering a
compelling reason to do so. “[I]f the INS departs from an announced rule
without explanation or an avowed alteration, such action could be viewed
as arbitrary and capricious, [or] an abuse of discretion.” Amanfi v. Ash-
croft, 328 F.3d 719, 728 (3d Cir. 2003) (internal quotations omitted)); see
also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of indi-
viduals are affected, it is incumbent upon agencies to follow their own
KAROUNI v. GONZALES 2853
Department appears to be in accord with the INS’ position. In
2000, the State Department asserted that “[n]othing in interna-
tional law can justify the persecution of individuals on the
basis of sexual orientation.” Statement of U.S. Ambassador
Nancy Rubin on Protection of Vulnerable Groups, Before
United Nations Commission on Human Rights, April 13,
2000, available at http://www.humanrights-usa.net/2000/
item14.html.
Later in 2000, in Hernandez-Montiel, we confronted for the
first time a variation of the issue whether homosexuals consti-
tute a “particular social group” within the meaning of the
INA. In that case, the “primary issue we . . . decide[d] is
whether gay men with female sexual identities in Mexico con-
stitute a protected ‘particular social group’ under the asylum
statute.” Hernandez-Montiel, 225 F.3d at 1087. We answered
that question in the affirmative, concluding “as a matter of
law, [that] the appropriate ‘particular social group’ is that
group in Mexico made up of gay men with female sexual
identities.” Id. at 1091, 1094-95. Though the issue presented
in Hernandez-Montiel was narrowly cast to encompass only
“gay men with female sexual identities in Mexico,” id. at
1087, 1091, Hernadez-Montiel clearly suggests that all alien
homosexuals are members of a “particular social group”
within the meaning of the INA.12 See id. at 1094 (stating that
procedures.”); Church of Scientology of Cal. v. United States, 920 F.2d
1481, 1487 (9th Cir. 1990) (noting that “an administrative agency is
required to adhere to its own internal operating procedures” and analyzing,
in this framework, an Internal Revenue Service (“IRS”) policy statement
in the Policies of the IRS Handbook); Nicholas v. INS, 590 F.2d 802, 806-
08 (9th Cir. 1979) (dealing with an INS operations instruction).
12
Since we decided Hernandez-Montiel, the Third Circuit has impliedly
recognized that homosexuals constitute a “particular social group.” See
Amanfi, 328 F.3d at 727-30. The Eighth Circuit has assumed, without
deciding, that “homosexuals are a particular social group.” Molathwa v.
Ashcroft, 390 F.3d 551, 554 (8th Cir. 2004) (citing Hernandez-Montiel,
225 F.3d at 1094).
2854 KAROUNI v. GONZALES
“sexual orientation can be the basis for establishing a ‘particu-
lar social group’ for asylum purposes”); cf. generally Reyes-
Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (remanding
to the BIA case in which the IJ applied incorrect legal stan-
dards to Convention Against Torture and withholding of
removal claims of El Salvadorian homosexual male with
female sexual identity). Thus, to the extent that our case-law
has been unclear, we affirm that all alien homosexuals are
members of a “particular social group.”
[5] While the Attorney General does not dispute the general
proposition that homosexuals constitute a “particular social
group,” the Attorney General nevertheless argues that the
future persecution Karouni fears would not be on account of
his status as a homosexual, but rather on account of him com-
mitting future homosexual acts. For example, the Attorney
General asserted at oral argument before us that “the govern-
ment of Lebanon arrest[s] people because they have engaged
in homosexual acts, but not[ ] . . . for merely being homosexu-
al.”13 There are significant problems with the Attorney Gener-
al’s argument. First, there is no guarantee that Karouni would
not be persecuted even if, upon his return to Lebanon, he
never again engaged in a homosexual act. If the Lebanese
authorities and the Hizballah already believe, as the evidence
in the record strongly suggests,14 that Karouni has already
13
The IJ posited, but did not rely on, a similar justification for denying
Karouni relief from removal. The IJ stated in his oral decision that
[t]here seems to be conflicting documentation concerning the cur-
rent conditions in Lebanon as they relate to homosexuals. The
respondent seems to indicate that Islamic law prevails in Lebanon
with regard to certain social aspects such as homosexuality.
There has been evidence to show that individuals are prosecuted
for homosexual conduct. [But t]here has been no evidence that
mere homosexuality is against the law in Lebanon.
14
For example, Karouni’s Fall 1994 encounter with armed Amal militia-
men in his apartment strongly suggests that Karouni has been “outed” as
a gay man. We can surmise no reason why, if Karouni was not suspected
of being a homosexual, armed Amal militia-men came to his apartment to
interrogate him about being a homosexual. We discuss other evidence that
Karouni has already been “outed,” infra, in Part III(A)(3)(b) of this opin-
ion.
KAROUNI v. GONZALES 2855
engaged in homosexual acts in the past, it does not matter
whether he engages in any homosexual acts in the future.
Karouni, as we discuss in greater detail below, see infra Part
III(A)(4), by virtue of his past homosexual acts alone, would
certainly face “at least a ten percent chance that he will suffer
persecution.” El Himri v. Ashcroft, 378 F.3d 932, 936 (9th
Cir. 2004) (noting that even a ten percent chance that the
applicant will be persecuted in the future is enough to estab-
lish eligibility for asylum).
[6] Alternatively, even if there were a guarantee that
Karouni would not be persecuted for his past homosexual
acts, the Attorney General appears content with saddling
Karouni with the Hobson’s choice of returning to Lebanon
and either (1) facing persecution for engaging in future homo-
sexual acts or (2) living a life of celibacy. In our view, neither
option is acceptable. As the Supreme Court has counseled,
“[w]hen sexuality finds overt expression in intimate conduct
with another person, the conduct can be but one element in a
personal bond that is more enduring.” Lawrence v. Texas, 539
U.S. 558, 567 (2003). This is but one reason why “the[ ] sex-
ual identities [of homosexuals] are so fundamental to their
human identities that they should not be required to change
them.” Hernandez-Montiel, 225 F.3d at 1094. By arguing that
Karouni could avoid persecution by abstaining from future
homosexual acts, the Attorney General is essentially arguing
that the INA requires Karouni to change a fundamental aspect
of his human identity, id., and forsake the intimate contact
and enduring personal bond that the Due Process Clause of
the Fourteenth Amendment protects from impingement in this
country and that “ha[ve] been accepted as an integral part of
human freedom in many other countries,” Lawrence, 539 U.S.
at 577; cf. United States v. Marcum, 60 M.J. 198, 208 (2004)
(recognizing that United States military “servicemembers
clearly retain a liberty interest to engage in certain intimate
sexual conduct”). We do not agree with the Attorney General
that the INA requires Karouni to change “an innate character-
istic . . . so fundamental,” Hernandez-Montiel, 225 F.3d at
2856 KAROUNI v. GONZALES
1094, or to relinquish such an “integral part of [his] human
freedom,” Lawrence, 539 U.S. at 577. Accordingly, we see no
appreciable difference between an individual, such as
Karouni, being persecuted for being a homosexual and being
persecuted for engaging in homosexual acts. The persecution
Karouni fears, regardless of how it is characterized by the
Attorney General, qualifies as persecution on account of . . .
Karouni’s membership in the particular social group of homo-
sexuals. See 8 U.S.C. § 1101(a)(42)(A).
3. The IJ’s Insufficiently Supported Findings
The IJ made a handful of findings on which he based his
determination that Karouni did not have an objectively well-
founded fear of future persecution. For the reasons below, we
believe that none are not supported by substantial evidence.
a. The Shooting of Khalil in the Anus and His
Subsequent Murder.
The IJ found that Karouni failed to provide evidence to cor-
roborate that Hizballah militants were responsible for shoot-
ing his cousin, Khalil, in the anus and later killing him.
Specifically, the IJ asked Karouni if he had proof that Hizbal-
lah militants were responsible or that Khalil was shot and
killed because he was gay. Karouni explained that there were
no newspaper accounts or police reports15 attributing Khalil’s
shooting and murder to the Hizballah or to Khalil’s homosex-
uality. Karouni also explained that in Lebanon’s cultural,
political, and legal climates, Khalil’s shootings were not
likely to be publicly attributed to Khalil’s homosexuality or to
the Hizballah.
[7] The IJ’s faulting of Karouni for his failure to provide
15
With respect to Khalil’s first shooting, Karouni specifically explained
in his asylum application that “[t]he police investigated but dropped the
case because he was gay.”
KAROUNI v. GONZALES 2857
corroborative evidence is not a substitute for substantial evi-
dence. “Because asylum cases are inherently difficult to
prove, an applicant may establish his case through his own
testimony alone.” Garrovillas v. INS, 156 F.3d 1010, 1016-17
(9th Cir. 1998) (internal quotation marks and citation omit-
ted); see also 8 C.F.R. § 1208.13(a) (“The testimony of the
applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.”). Once an applicant’s testi-
mony is deemed credible — as Karouni’s testimony was
deemed here — no further corroboration is required to estab-
lish the facts to which the applicant testified. See Kaur v. Ash-
croft, 379 F.3d 876, 890 (9th Cir. 2004).
Moreover, Karouni’s testimony that Khalil was likely shot
in the anus and later killed by the Hizballah because he was
gay finds support in the record. As discussed earlier, Karouni
submitted to the IJ a substantial amount of evidence establish-
ing (1) that the Hizballah has a military presence throughout
Karouni’s home region in the South of Lebanon; (2) that the
Hizballah applies Islamic law in that region; (3) that homo-
sexuality is punishable by death under Islamic law; and (4)
that the Hizballah and Lebanese state officials have arrested,
beaten, and in some cases killed known or suspected homo-
sexuals. See supra Part I. Karouni also submitted evidence
suggesting that Muslim militia-men in Lebanon regularly use
their firearms to sexually assault and torment suspected
homosexuals. In particular, Karouni submitted a BIA opinion
from a similar immigration case involving a Lebanese homo-
sexual, in which Muslim militia-men repeatedly forced the
barrel of a rifle into the homosexual asylum-seeker’s anus.
“We have repeatedly held that asylum applicants [do not]
bear . . . the unreasonable burden of establishing the exact
motives of their persecutors . . . .” Ali v. Ashcroft, 394 F.3d
780, 785 (9th Cir. 2005). For this reason, a persecutor’s iden-
tity and/or motivation may be established by direct or circum-
stantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478,
483 (1992). Circumstantial evidence may include, inter alia,
2858 KAROUNI v. GONZALES
“[o]bvious signs” connecting persecutory acts to the alleged
persecutors and suggesting the alleged persecutors’ motives.
See Deloso v. Ashcroft, 393 F.3d 858, 865 (9th Cir. 2005).
[8] In this case, we agree with Karouni that shooting Khalil
in the anus is essentially res ipsa loquitor evidence, see Peti-
tioner’s Opening Brief, available at 2003 WL 22724486, at
*20, or an “[o]bvious sign[ ],” see id., that Khalil was shot
because he was a homosexual. We can conceive of no expla-
nation why members of a society hostile to homosexuality
would shoot Khalil in the anus other than that the perpetrators
primitively and abhorrently believed that they were punishing
Khalil for his perceived sins by mutilating, as Karouni charac-
terized it, “the locus of Khalil’s homosexual sin.” Karouni’s
arguments and testimony, when read with the other evidence
in the record, support his conclusion that Khalil was likely
shot in the anus and later killed by the Hizballah because he
was gay. Cf. Navas, 217 F.3d at 657 (“In some cases, the fac-
tual circumstances alone may provide sufficient reason to
conclude that acts of persecution were committed on account
of . . . [a] protected ground[ ]. Indeed, this court has held per-
secution to be on account of [a protected ground] where there
appears to be no other logical reason for the persecution at
issue.” (internal citation omitted)); Ratnam v. INS, 154 F.3d
990, 995 (9th Cir. 1998) (“[I]f there is no evidence of a legiti-
mate . . . purpose for a government’s harassment of a person
. . . there arises a presumption that the motive for the harass-
ment is [on account of a protected ground].” (internal citation
omitted)).
b. Whether Karouni Has Been “Outed” to the
Authorities
The IJ faulted Karouni for failing to provide evidence to
corroborate that he had been identified as a homosexual to the
authorities by either his former homosexual partner, Mah-
moud, or the friends with whom he attended dinner parties in
Lebanon in 1992. This finding is not supported by substantial
KAROUNI v. GONZALES 2859
evidence either. First, Karouni did not speculate that he has
been identified to the authorities as a homosexual. Rather,
Karouni testified that his friend and Mahmoud’s cousin, Tou-
fic, told him that his name had been submitted to the authori-
ties as a homosexual. The IJ stated that Karouni should have
obtained affidavits from Toufic or other friends in Lebanon to
corroborate Karouni’s testimony. However, requiring Karouni
to obtain corroborating affidavits, as noted above, runs afoul
of our case law recognizing that, when an applicant presents
credible testimony — as Karouni did here — “[n]o further
corroboration is required.” Salaam v. INS, 229 F.3d 1234,
1239 (9th Cir. 2000) (internal quotations omitted).
Additionally, as we noted earlier, see supra note 14,
Karouni’s Fall 1984 encounter with armed Amal militia-men
in his apartment refutes the IJ’s suspicion that Karouni has not
been “outed.” We can surmise no reason why, if Karouni was
not suspected of being a homosexual, armed Amal militia-
men came to his apartment to interrogate him about being a
homosexual.
[9] Finally, even if corroborative evidence was required —
which it is not — Karouni did provide documentary evidence
that tends to corroborate his testimony that he had been identi-
fied by the Lebanese authorities as a homosexual. Karouni
provided a declaration from a Lebanese doctor, Dr. Mobas-
saleh, who attended the American University of Beirut with
Karouni and shared Karouni’s network of homosexual
friends. Dr. Mobassaleh’s declaration states that “Karouni’s
homosexuality is no secret among certain circles in Lebanon,
despite all his efforts to keeping it so.” For this reason, Dr.
Mobassaleh declared, “I very much fear for Mr. Karouni’s life
and safety in Lebanon.” While Dr. Mobassaleh’s declaration
is not clear as to precisely who knows of Karouni’s homosex-
uality, Dr. Mobassaleh’s remark that individuals know “de-
spite all [Karouni’s] efforts” indicates that at least some of
the individuals who know of Karouni’s homosexuality are
individuals who Karouni would not want to know of it. We
2860 KAROUNI v. GONZALES
find this ambiguity of little practical consequence because, as
the evidence in the record establishes, Karouni’s would-be
persecutors appear sufficiently capable of sleuthing-out their
victims. That Karouni’s homosexuality is “no secret” in Leba-
non places him sufficiently at risk of future persecution for his
fear to be well-founded.
c. Karouni’s Two Return Visits to Lebanon
The IJ also found that Karouni’s returns to Lebanon in
1992 to attend to his dying father and in 1996 to attend to his
dying mother “cut against” his claim of fear of future persecu-
tion in Lebanon because these actions “do[ ] not appear to be
the actions of an individual who fears persecution because he
is gay.” In certain cases, a petitioner’s return to the country
in which he or she fears persecution may undercut the peti-
tioner’s claim that his or her fear is objectively well-founded.
Compare Bereza v. INS, 115 F.3d 468, 474 (7th Cir. 1997)
(six- to seven-month return visit to Ukraine without incident
supported BIA’s finding that petitioner did not have a well-
founded fear of future persecution), with Damaize-Job v. INS,
787 F.2d 1332, 1336 (9th Cir. 1986) (two-year return to Nica-
ragua motivated by desire to assist uncle and sister who had
been arrested by Sandinistas not supportive of BIA’s finding
that petitioner lacked well-founded fear). This, however, is
not such a case.
Unlike Bereza, in which the petitioner experienced no
problems on his six- to seven-month return to Ukraine just one
year after fleeing to the United States, see Bereza, 115 F.3d
at 470, Karouni’s 1992 and 1996 return visits to Lebanon
lasted only approximately two months and one month, respec-
tively. In both instances, Karouni returned to Lebanon only
because his parents were dying. Out of fear of persecution,
Karouni cut short his 1992 visit and returned to the United
States before his father’s funeral. Likewise, out of fear of per-
secution, Karouni delayed his 1996 visit, and, by the time he
arrived in Lebanon, his mother had already died.
KAROUNI v. GONZALES 2861
[10] Faced with the difficult choice of returning to Lebanon
to see his dying parents or remaining in the safe haven of the
United States, we do not fault Karouni for his choice to return
to Lebanon to see his parents one last time. Accordingly, we
do not believe that Karouni’s two return visits to Lebanon
constitute substantial evidence that his fear of persecution was
not well-founded. See Damaize-Job, 787 F.2d at 1336.16
Rather, the IJ’s conclusion to the contrary was “personal con-
jecture” about what choice someone in Karouni’s unfortunate
position would have made. Paramasamay v. Ashcroft, 295
F.3d 1047, 1052 (9th Cir. 2002) (rejecting IJ’s hypothesis as
to what motivated the applicant’s departure from Sri Lanka).
“An immigration judge’s personal conjecture ‘cannot be sub-
stituted for objective and substantial evidence.’ ” Id. (quoting
Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000)).
d. Karouni’s Attendance at Dinner Parties with
Other Homosexuals
The IJ found that Karouni’s attendance at dinner parties
with other homosexuals in Lebanon in 1992 was inconsistent
with the actions of an individual who feared being “outed.”
Like so many of the IJ’s other findings in this case, we
believe that this finding also represents the IJ’s “personal con-
16
We also find support in the wealth of our case law recognizing that
a well-founded fear of future persecution will not be negated by an alien’s
continued presence in the country in which he or she fears persecution
before fleeing. See, e.g., Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996)
(noting that there is no “rule that if the departure was a considerable time
after the first threat, then the fear was not genuine or well founded”); Tur-
cios v. INS, 821 F.2d 1396, 1401-02 (9th Cir. 1987) (remaining in El Sal-
vador for several months after release from prison did not negate fear);
Damaize-Job, 787 F.2d at 1336 (two-year stay in Nicaragua after release
not determinative). For the purposes of evaluating an alien’s fear of future
persecution, so long as compelling circumstances motivated the alien’s
actions, we find little practical difference between an alien’s delay in
departing his or her home country and briefly returning home. In this case,
the impending demise of Karouni’s parents presents a sufficiently compel-
ling circumstance.
2862 KAROUNI v. GONZALES
jecture” as to what someone in Karouni’s situation would do.
Id.
Karouni’s credible testimony establishes that, during his
1992 visit to Lebanon, he limited his contacts and remained
at his parents’ home most of the time. He interacted with only
family and close friends for fear that his would-be persecutors
would learn of his presence and persecute him. The evidence
in the record strongly suggests that Karouni attended dinner
parties with other homosexuals only because he believed them
to be safe. In particular, Karouni testified that his friend and
Mahmoud’s cousin, Toufic, arranged the dinner parties, that
all of the attendees of the dinner parties were “very close
friends” of Toufic’s, and that “[t]hey’ve known each other for
years.” Accordingly, we find no support for the IJ’s conclu-
sion that Karouni, at the time that he attended the dinner par-
ties in 1992, had any reason to fear that his attendance would
place him at a greater risk of persecution or that his atten-
dance somehow evidences an objectively unreasonable fear of
future persecution.
Moreover, Karouni attended dinner parties with other
homosexuals during his 1992 visit to see his dying father but
not during his 1996 visit to attend his recently deceased moth-
er’s funeral. Karouni testified that, after his 1992 visit to Leb-
anon, he “started hearing [that] the people I associated with
. . . [in 1992 ha]ve been arrested and beaten.” Toufic told
Karouni that, following the arrests of the other dinner party
attendees, Karouni’s name “ha[d also] been submitted” to the
Lebanese authorities identifying him as a homosexual. For
that reason, during Karouni’s 1996 visit to Lebanon, he did
not attend any dinner parties with other homosexuals, “re-
mained at home as much as possible,” and “didn’t want to get
in contact with anybody.” Thus, to the extent that the IJ was
correct in speculating that a gay man in fear of being outed
and persecuted would not have attended dinner parties with
other homosexuals, Karouni’s actions during his 1996 visit
were entirely consistent with the IJ’s supposition.
KAROUNI v. GONZALES 2863
e. Karouni’s Contact with an Immigration Lawyer
in 1987
The IJ found that Karouni’s contact with an immigration
lawyer in 1987 to determine if Karouni could legalize his
immigration status was “somewhat unusual” because Karouni
did not seek asylum until a decade later and never attempted
to obtain derivative immigration status from his brother who
is a United States citizen. This finding is not supported by
substantial evidence either and again constitutes nothing more
than the IJ’s speculation and conjecture as to what someone
in Karouni’s position would have done.
Karouni testified that, in 1987, when he spoke with an
immigration lawyer, Karouni did not independently know,
and his lawyer did not tell him, that he could obtain derivative
legal resident status from his brother or that asylum was avail-
able to him. Karouni also testified that, in 1987, he focused
on obtaining lawful permanent resident status in the United
States through his work. That the IJ found it hard to believe
that an immigration lawyer would fail to explore all of
Karouni’s options for obtaining lawful status in the United
States is nothing more than the IJ’s generalization about what
a knowledgeable and thorough immigration attorney should
have done. Again, it is well-settled in this circuit that an IJ’s
speculation and conjecture cannot substitute for substantial
evidence. See, e.g., Paramasamy, 295 F.3d at 1052. And we
have already held that an IJ may not speculate as to why an
alien did not apply for asylum immediately upon entry to the
United States. See Guo v. Ashcroft, 361 F.3d 1194, 1201-02
(9th Cir. 2004). In any event, Karouni’s decade long delay in
seeking asylum is also reasonable, given that he was unaware
that he was even eligible for it and attempted to obtain lawful
immigrant status through other means — namely, his work.
f. Karouni’s Two Criminal Convictions
Finally, the IJ found that Karouni’s two criminal convic-
tions in the United States “demonstrat[e] doubt” about
2864 KAROUNI v. GONZALES
Karouni’s fear of future persecution because “[o]ne who fears
return to their home country would certainly shy away from
any criminal conduct in the United States.” Again, this find-
ing represents nothing more than impermissible speculation
and conjecture by the IJ. We have never — and as far as we
can tell, no court has ever — held that an alien’s objective
fear of persecution can be disestablished by the alien’s com-
mission of crimes — in Karouni’s case, two misdemeanors —
while in the United States. We decline to impose that condi-
tion on an alien’s fear of future persecution.
4. Karouni’s Well-Founded Fear of Future Persecution
[11] In sum, the IJ’s finding that Karouni lacked a well-
founded fear of future persecution is not supported by sub-
stantial evidence. To the contrary, the evidence establishes
that Karouni has both a subjectively and objectively well-
founded fear of future persecution. After all, “even a ten per-
cent chance of persecution may establish a well-founded
fear.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).
Here, the record demonstrates that Hizballah militants and
certain factions of the Lebanese and local governments are a
credible threat to homosexuals like Karouni. Karouni has
established that he has already been “outed” as a gay man in
Lebanon. Additionally, Karouni has established that, based on
his past contacts with other Lebanese homosexuals who have
already been apprehended and interrogated by the Hizballah
and various Lebanese state actors, he is particularly at risk of
being apprehended and persecuted for his homosexuality.
Finally, we find compelling the evidence that the prominence
of Karouni’s family name and Karouni’s infection with AIDS
would make it extremely difficult for Karouni to avoid his
would-be persecutors if returned to Lebanon. For these rea-
sons, we find that Karouni easily satisfies the “ten percent
chance of [future] persecution” for establishing a well-
founded fear. Id.
KAROUNI v. GONZALES 2865
B. Withholding of Removal
[12] The IJ assumed that, because Karouni failed to estab-
lish that he suffered past persecution or has an independently
well-founded fear of future persecution, he could not meet the
higher standard to prove that he is entitled to withholding of
removal. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th
Cir. 2004) (“Because Mansour was unable to meet his burden
to demonstrate that he is eligible for asylum he necessarily
fails to satisfy the more stringent standard for withholding of
removal.”). Because we hold that Karouni is statutorily eligi-
ble for asylum, we remand to the BIA to determine in the first
instance whether Karouni has established eligibility for with-
holding of removal. See Ali, 394 F.3d at 791 (holding that
petitioner established statutory eligibility for asylum, but
remanding for consideration of petitioner’s withholding of
removal claim).
While the grant of asylum is discretionary, withhold-
ing of removal is mandatory if the petitioner estab-
lishes that upon removal from the United States her
“life or freedom would be threatened” on account of
one of the five protected grounds. INA
§ 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A). The stan-
dard of proof required to establish eligibility for
withholding of removal is higher than the standard
for establishing eligibility for asylum. Compare INS
v. Stevic, 467 U.S. 407, 104 S. Ct. 2489, 81 L. Ed.
2d 321 (1984) (“clear probability” standard under
former withholding statute) with INS v. Cardoza-
Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 94 L. Ed.
2d 434 (1987) (asylum standard).
Id. Thus, if the BIA finds that Karouni satisfies this higher
standard, it must grant him withholding of removal.
CONCLUSION
For the reasons stated above, we GRANT Karouni’s Peti-
tion for Review, REVERSE the IJ’s finding that Karouni
2866 KAROUNI v. GONZALES
does not have a well-founded fear of future persecution, and
REMAND this case to the BIA. In a manner not inconsistent
with this opinion, the Attorney General shall exercise his dis-
cretion on Karouni’s asylum claim and evaluate Karouni’s
withholding of removal claim.