Karouni v. Gonzales, Slip No. 02-72651 (9^th Cir. March 7, 2005).

Petitioner is a native and citizen of Lebanon, and sought asylum in the United States because he fears that if returned to Lebanon, he will be persecuted for being homosexual, suffering from AIDS, and being a Shi'ite. This fear is based upon that fact that Hizballah, an Islamic paramilitary organization, largely controls the southern region of Lebanon where the Petitioner is from. Hizballah applies Islamic law in areas under its control, and Islamic law considers homosexuality punishable by death. Furthermore, the Lebanese government also vehemently condemns homosexuality.

In the late 1970's, the Petitioner and his cousin were close friends, and spent time together meeting other homosexual men. In 1984, the Petitioner's cousin was confronted at the cousin's apartment by Hizballah, and was shot in the anus as punishment for being a homosexual, but survived the injury. Later in 1984, a man that the Petitioner had a relationship with was arrested and beaten by militiamen. The Petitioner never saw him again, but believed that the man told the authorities that the Petitioner was also gay. Shortly after the man's apprehension, two armed militiamen with machine guns came to the Petitioner's apartment, interrogated him about being a homosexual, and attempted to arrest him. A neighbor interrupted the encounter and the militiamen left.

In 1986, the Petitioner's cousin was again confronted, but this time was shot and killed. The Petitioner fled Lebanon for the United States shortly thereafter. He returned to Lebanon in 1992 to see his father who was dying of cancer, but returned to the United States prior to the funeral out of fear of persecution. He returned a second time in 1996 to see his mother who had fallen ill. He delayed his trip out of fear of persecution, and his mother had died by the time that he arrived. He refrained from going out in public during these visits, but did attend a few private dinner parties with other homosexuals during his visit in 1992. After returning to the U.S., the Petitioner learned that three of the friends with whom he had attended the dinner parties with had been arrested, detained, beaten, and/or killed because they were gay. One of the friends had been arrested by the Lebanese police, and had been beaten and interrogated for names of other homosexuals. This friend "outed" the Petitioner and another man. The other man was jailed and beaten by the police. The Petitioner fears that if he were removed to Lebanon, he would be identified and persecuted for having associated with these homosexual friends.

Additionally, the Petitioner fears persecution because he has AIDS. He cannot seek treatment in Lebanon for his disease, because if he sought treatment, it would confirm suspicions that he was gay. Reports indicated that Lebanese AIDS sufferers are often placed under house arrest and denied treatment. Furthermore, the Petitioner's family is very prominent, and it is very unlikely that he could live in anonymity.

The Immigration Judge found that the Petitioner was credible, and that he had established that individuals in Lebanon are persecuted for homosexual conduct. However, the Immigration Judge determined that the Petitioner had only suffered an interrogation at the hands of militants, and such did not give rise to a level of past persecution. Also, the Immigration Judge agreed with the Attorney General that the Petitioner's fear of persecution was not on account of his status as a homosexual, but on account of committing future homosexual acts. The Petitioner appealed to the Board of Immigration Appeals, who affirmed the Immigration Judge's decision. Petitioner then petitioned for review to the Ninth Circuit Court of Appeals.

The Ninth Circuit Court of Appeals held that if the Lebanese government and Hizballah believe that the Petitioner engaged in homosexual acts in the past, it does not matter whether he engages in any acts in the future. They found that by virtue of his past acts alone the Petitioner faces at least a ten percent chance of persecution in the future. The Court further stated that even if he were to not be persecuted for his past acts, the Petitioner is faced with two unacceptable options: either face persecution for future acts, or live a life of celibacy. It is noted that the sexual identities of homosexuals are so fundamental to their human identities, that they should not be required to change them. The Ninth Circuit held that there is no appreciable difference in persecution on account of being a homosexual and being persecuted for engaging in homosexual acts, and that the persecution that the Petitioner fears qualifies as persecution on account of membership in a particular social group.

The Immigration Judge found that the Petitioner was credible. Based on this credibility finding, the Ninth Circuit stated that no further corroboration was required to establish the facts to which the Petitioner testified. His testimony established that he had been "outed" as a gay man based upon his past contacts with other Lebanese homosexuals who have already been apprehended and persecuted, and that the interrogation that he suffered was probably a result of the apprehension and questioning of his contacts. It was established that militant groups and certain factions of the Lebanese and local governments are a credible threat to homosexuals, and that it was likely that he would be persecuted again based on this status in the future. Furthermore, the record indicated that the prominence of the Petitioner's family name and his infection with AIDS would make it extremely difficult for him to avoid his persecutors if returned to Lebanon.

The Immigration Judge also contended that the Petitioner's returns to Lebanon undercut his claim that his fear is objectively well founded. The Ninth Circuit stated that his two return trips were of short duration, that his 1992 trip was cut short out of fear, his 1996 trip was delayed due to fear, that he should not be faulted for returning to see his dying parents, and found that the trips did not undercut the Petitioner's claim. They held here, and additionally in response to other concerns held by the Immigration Judge, the Immigration Judge's speculation and conjecture cannot substitute for substantial evidence.

The Ninth Circuit held that the Petitioner was statutorily eligible for asylum as had established that he had a well-founded fear of future persecution, but remanded to the BIA to determine whether he had established eligibility for withholding of removal.