Karouni v. Gonzales

• Citation: 399 F.3d 1163
• Decision Date: 07 March 2005
• Docket Number: No. 02-72651.,02-72651.
• Parties: Nasser Mustapha KAROUNI, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

399 F.3d 1163

Nasser Mustapha KAROUNI, Petitioner, v. Alberto GONZALES,^* Attorney General, Respondent.

No. 02-72651.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 1, 2004.

Filed March 7, 2005.

COPYRIGHT MATERIAL OMITTED

Douglas D. Nelson, San Diego, CA, for the petitioner.

Luis E. Perez (argued), Deborah N. Misir (briefed), Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: GOODWIN, PREGERSON, and TALLMAN, Circuit Judges.

PREGERSON, Circuit Judge:

Nasser Mustapha Karouni ("Karouni"), a native and citizen of Lebanon, petitions for review of a decision of the Board of 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 persecution.

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, 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 proceedings 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 concerning the persecution he fears if removed to Lebanon, we begin with a discussion of the social, religious, political, and cultural 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 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 Eligibility of Gay Men and Lesbians Under U.S. Immigration Policy, 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 Hizballah operates beyond the Lebanese government's control or with its complicity. Nevertheless, the record is clear that the Lebanese government condemns homosexuality. For example, Karouni submitted Reuters and UPI news articles noting that Lebanon boycotted the 1994 International Conference on Population Control because the conference's agenda recognized homosexuality, which is "vehemently condemned by the country's Christian and Muslim religious leaders." Karouni also submitted an excerpt from a book on international gay and lesbian liberation and oppression, which quotes the Lebanese Embassy in the Hague as stating that "homosexuality 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

The record is also quite clear that the Lebanese government, 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 published 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 homosexuality. 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 homosexuality 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 homosexual peers, Karouni fears persecution if removed to Lebanon.

Karouni stated in his asylum application that he has "always 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 to name other homosexuals. They asked me whether I knew the names of other persons they suspected of being homosexual. 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 Mahmoud 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 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 persecuted 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 Lebanon 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, confirm 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,...