Court says justice department must consider gay man’s argument of Hezbollah threat
A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled on March 7 that a gay man from Lebanon was entitled to be considered for asylum in the United States based on his reasonable fear of persecution if he were to return to his home country.
Chiding an immigration judge for ruling based on “personal conjecture” rather than the evidence in the record, the court ordered that Attorney Gen. Alberto Gonzales give appropriate attention to Nasser Karouni’s asylum petition, and, alternately, that he be given another chance to win an order simply blocking his deportation if Gonzales does not grant asylum.
Karouni, who filed an application for asylum in March 1998, presented an unusually detailed record supporting his claim that he would be persecuted if he returned to Lebanon, showing that the Tyre region, where his family lived, was under the domination of the Hezbollah, a militant Muslim fundamentalist group that strictly enforces the Sharia, under which homosexual acts are a capital offense. Karouni testified that he had been interrogated about his sexuality in his apartment by two armed militants in the fall of 1984, that gay friends and acquaintances had been persecuted and killed and that his sexual identity was widely known in Lebanon.
Karouni presented newspaper articles detailing the oppression of gay people in Lebanon, and a letter from a physician friend confirming that he was known to be gay in Lebanon. As a member of a prominent Shi’ite family, Karouni argued that it would be impossible for him to hide in his home country, where a gay, wealthy Shi’ite would be a tempting target for Hezbollah.
Karouni also suffers from AIDS, and he presented abundant documentation that he would be unable to obtain adequate medical care in Lebanon. A doctor acquaintance attested to the fact that people with AIDS are considered marked as sinners and are isolated and deprived of treatment in that country.
Despite all this documentation, the immigration judge decided that Karouni had failed to meet his burden of showing a reasonable fear of persecution in Lebanon. The judge asserted that Karouni’s testimony was based on conjecture, that he had not personally been persecuted in the past, that he did not know for sure that his homosexuality was known to others in Lebanon and that two brief trips home to visit dying parents, during which he attended a private gay dinner party, belied any fear of persecution.
The Board of Immigration Appeals affirmed the judge’s rejection of Karouni’s asylum petition, and of his alternative petition to stay deportation on grounds that he would be in imminent danger if he were forced to return to Lebanon.
The Ninth Circuit court’s opinion by Judge Harry Pregerson, without being explicit, seems aimed at stemming an attempt by the Department of Justice to back away from the pro-gay asylum rulings under the Clinton administration. Former Attorney Gen. Janet Reno issued a finding that gay people constitute a “particular social group,” a term of significance in asylum law, where the applicant must show that he fears persecution because of his membership in a “particular social group.” Under Reno, several hundred gay applicants were granted asylum, but most recent reported asylum rulings show a pattern of rejecting such applications.
To judge by the discussion in Pregerson’s ruling, the Ashcroft justice department in Pres. Bush’s first term was backing away from that practice, even though it has been accepted by several federal appeals courts. “To the extent that our case-law has been unclear, we affirm that all alien homosexuals are members of a ‘particular social group,’” Pregerson wrote.
Ashcroft’s attorneys attempted to counter the viability of the particular social group claim by arguing, “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.” In other words, the justice department argued that a gay person could lead a totally celibate life and thereby avoid any persecution.
Pregerson rejected this argument forthrightly.
“First,” he wrote, “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 Hezbollah already believe, as the evidence in the record strongly suggests, that Karouni has already engaged in homosexual acts in the past, it does not matter whether he engages in any homosexual acts in the future.”
But Pregerson challenged the justice department even more directly.
“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,” he wrote. “In our view, neither option is acceptable.”
Pregerson went on to quote from Lawrence v. Texas about the central role that sexual expression plays in human identity.
“By arguing that Karouni could avoid persecution by abstaining from future homosexual acts,” wrote Pregerson, “the Attorney General is essentially arguing that the INA requires Karouni to change a fundamental aspect of his human identity, 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 ‘have been accepted as an integral part of human freedom in many other countries,’” again quoting from Lawrence.
The appeals court concluded that the immigration judge’s finding that Karouni “lacked a well-founded fear of future persecution is not supported by substantial evidence,” and that in fact the evidence in the record supported the opposite conclusion. The immigration judge thought that Karouni’s participation in a private gay dinner party on one trip home undercut his argument about fear of persecution, but Pregerson pointed out that Karouni also testified that several other guests at that dinner party had since been persecuted by Hezbollah, including at least one execution.
Asylum applicants are required to show that one’s “life or freedom would be threatened” if returned to their country. The court found that the immigration judge’s ruling on asylum had virtually precluded Karouni from proving he qualified for withholding of removal. Asylum is discretionary on the part of the government, but a finding of “withholding of deportation” is mandatory if the burden of proof is met. Thus, the next step in the case is two-fold. Either Attorney Gen. Gonzales can grant Karouni’s asylum petition, or Karouni can attempt to meet the higher standard to earn withholding of deportation. The Court of Appeals’ order affords him the opportunity to attempt both.
San Diego Attorney Douglas D. Nelson represented Karouni in appealing the denial of his applications to the federal appeals court.