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
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

2842 KAROUNI v. GONZALES
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, nonimmigrant visitor for pleasure visa.2

 In March 1998, Karouni

timely filed an application for asylum with the Immigration

and Naturalization Service (“INS”).3See 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,

1The following facts are taken as true because the IJ found Karouni to

be credible, and the BIA made no findings of its own. See RodriguezMatamoros 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 proceedings, 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). 

3The 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. 

KAROUNI v. GONZALES 2843
whichever is later). On September 14, 1998, in response to

Karouni’s asylum application and because Karouni overstayed 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

4Since 1997, Hizballah has been designated a Foreign Terrorist Organization 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 Hizballah as part of a “terrorist underworld” that threatens United States interests. 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). 

2844 KAROUNI v. GONZALES
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

5According 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 protection or status due to their position in society would be lost. My

family would be forced to ostracize me in order to avoid persecution so that they do not lose standing in the government and society. 

KAROUNI v. GONZALES 2845
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 late1970s 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

6After Israel’s 1982 invasion of Lebanon, radical members of Amal dissatisfied with many of Amal’s moderate practices formed the Hizballah.

See, e.g., Sami G. Hajjar, Hizballah: Terrorism, National Liberation, or

Menace? 5 (2002). 

2846 KAROUNI v. GONZALES
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

KAROUNI v. GONZALES 2847
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, firstly, a stamp of verification

of homosexuality, and secondly, as the deserved punishment

from God. . . . The unavailability of medical treatment . . . further 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

2848 KAROUNI v. GONZALES
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 documents that gave Lebanon its independence from France in

1943. Karouni believes that his family name, “Karouni Osseiran,” is so recognizable that it identifies him as both a member 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 prominent 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 presented 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 interrogated 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. 

KAROUNI v. GONZALES 2849
II. STANDARD OF REVIEW7

We review the BIA’s decision that an alien has not established 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 credibility 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 constitutes 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 unwilling to return to their home country because of “persecution or

a well-founded fear of persecution on account of race, religion, 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

7Karouni’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). 

8Karouni argues that the BIA erred by affirming without opinion the

decision of the IJ. We reject this argument because it is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 849-50 (9th Cir. 2003), which we

decided after Karouni filed his opening brief. 

2850 KAROUNI v. GONZALES
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 government is unable or unwilling to control can persecute someone” 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 credible, 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 Naturalization Act (“INA”). Indeed, it would be difficult for the Attorney General to do so. 

9Karouni 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. 

KAROUNI v. GONZALES 2851
“[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 consciences 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 determination 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 circumstances . . . 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

10According to the International Gay and Lesbian Human Rights Commission, 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). 

11The Attorney General would be hard-pressed to retreat from the position 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. Ashcroft, 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 individuals are affected, it is incumbent upon agencies to follow their own

2852 KAROUNI v. GONZALES
Department appears to be in accord with the INS’ position. In

2000, the State Department asserted that “[n]othing in international 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 constitute 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 constitute 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). 

12Since 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). 

KAROUNI v. GONZALES 2853
“sexual orientation can be the basis for establishing a ‘particular social group’ for asylum purposes”); cf. generally ReyesReyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (remanding

to the BIA case in which the IJ applied incorrect legal standards 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 committing future homosexual acts. For example, the Attorney

General asserted at oral argument before us that “the government of Lebanon arrest[s] people because they have engaged

in homosexual acts, but not[ ] . . . for merely being homosexual.”13 There are significant problems with the Attorney General’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

13The 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 current 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. 

14For example, Karouni’s Fall 1994 encounter with armed Amal militiamen 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 opinion. 

2854 KAROUNI v. GONZALES
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 establish 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 homosexual 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[ ] sexual 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 characteristic . . . so fundamental,” Hernandez-Montiel, 225 F.3d at

KAROUNI v. GONZALES 2855
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 homosexuals. 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 wellfounded 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 corroborate that Hizballah militants were responsible for shooting his cousin, Khalil, in the anus and later killing him.

Specifically, the IJ asked Karouni if he had proof that Hizballah 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 homosexuality. 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

15With 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.” 

2856 KAROUNI v. GONZALES
corroborative evidence is not a substitute for substantial evidence. “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 omitted); 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 testimony is deemed credible — as Karouni’s testimony was

deemed here — no further corroboration is required to establish the facts to which the applicant testified. See Kaur v. Ashcroft, 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 establishing (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 homosexuality 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 homosexuals. 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 homosexual, 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 identity and/or motivation may be established by direct or circumstantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478,

483 (1992). Circumstantial evidence may include, inter alia,

KAROUNI v. GONZALES 2857
“[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 Petitioner’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 explanation 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 characterized 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 factual 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 persecution 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 legitimate . . . purpose for a government’s harassment of a person

. . . there arises a presumption that the motive for the harassment 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, Mahmoud, or the friends with whom he attended dinner parties in

Lebanon in 1992. This finding is not supported by substantial

2858 KAROUNI v. GONZALES
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, Toufic, told him that his name had been submitted to the authorities 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 militiamen 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 identified by the Lebanese authorities as a homosexual. Karouni

provided a declaration from a Lebanese doctor, Dr. Mobassaleh, 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 homosexuality, Dr. Mobassaleh’s remark that individuals know “despite 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

KAROUNI v. GONZALES 2859
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 Lebanon 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 persecution 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 petitioner’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 wellfounded fear of future persecution), with Damaize-Job v. INS,

787 F.2d 1332, 1336 (9th Cir. 1986) (two-year return to Nicaragua 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, respectively. 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 persecution, Karouni delayed his 1996 visit, and, by the time he

arrived in Lebanon, his mother had already died. 

2860 KAROUNI v. GONZALES
[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 conjecture” 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 substituted 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 con16We 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”); Turcios v. INS, 821 F.2d 1396, 1401-02 (9th Cir. 1987) (remaining in El Salvador 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 compelling circumstance. 

KAROUNI v. GONZALES 2861
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 conclusion that Karouni, at the time that he attended the dinner parties in 1992, had any reason to fear that his attendance would

place him at a greater risk of persecution or that his attendance 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 mother’s funeral. Karouni testified that, after his 1992 visit to Lebanon, 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, “remained 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.

2862 KAROUNI v. GONZALES
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 available 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 convictions in the United States “demonstrat[e] doubt” about

KAROUNI v. GONZALES 2863
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 finding 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 commission of crimes — in Karouni’s case, two misdemeanors —

while in the United States. We decline to impose that condition 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 wellfounded fear of future persecution is not supported by substantial evidence. To the contrary, the evidence establishes

that Karouni has both a subjectively and objectively wellfounded fear of future persecution. After all, “even a ten percent 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 reasons, we find that Karouni easily satisfies the “ten percent

chance of [future] persecution” for establishing a wellfounded fear. Id.

2864 KAROUNI v. GONZALES
B. Withholding of Removal 

[12] The IJ assumed that, because Karouni failed to establish 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 eligible for asylum, we remand to the BIA to determine in the first

instance whether Karouni has established eligibility for withholding 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, withholding of removal is mandatory if the petitioner establishes 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 standard 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. CardozaFonseca, 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 Petition for Review, REVERSE the IJ’s finding that Karouni

KAROUNI v. GONZALES 2865
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 discretion on Karouni’s asylum claim and evaluate Karouni’s

withholding of removal claim. 

2866 KAROUNI v. GONZALES