"A factual determination by the BIA that an alien is statutorily ineligible for asylum or withholding is reviewed under the substantial evidence test." Perlera-Escobar v. Executive Office forImmigration, 894 F.2d 1292, 1296 (11th Cir. 1990) (per curiam). This means that the reviewing court must affirm the BIA's decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole."
INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987). See Perlera-Escobar, 894 F.2d 1292, 1296 (11th Cir. 1990) (although "questions of statutory interpretation [are reviewed] de novo," the court is "obliged . . . to defer to the BIA's interpretation of the applicable statute if that interpretation is reasonable") (citation omitted). Deference to the agency's interpretation is called for particularly when Congress incorporates into the statute terms of "some ambiguity . . . like 'well-founded fear' which can only be given concrete meaning through a process of case-by-case adjudication."
We review de novo the statutory interpretation finding by the Board that Barreto filed a frivolous asylum application under Section 1158(d)(6). See Perlera-Escobar v. EOIR, 894 F.2d 1292, 1296 (11th Cir. 1990); Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992). This plenary review, however, is tempered with deference to the Board.
We have explained that "[t]he fact that the government and [a revolutionary group] are fighting to achieve political objectives does not imbue every act committed by them with political significance." Perlera-Escobar v. Exec. Office for Immigration , 894 F.2d 1292, 1299 (11th Cir. 1990). And the BIA has interpreted the meaning and scope of the phrase "persecution ... on account of ... political opinion" to exclude "harm and threats that may incidentally result from behavior meant to achieve a political objective, be it the overthrow of the existing government or, alternatively, the defense of the government against armed insurrection."
And to the extent that the BIA interpreted a statutory term, we defer to the BIA's interpretation if it is reasonable. See Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1296 (11th Cir. 1990) (citing Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)). We review the BIA's factual determinations for substantial evidence.
If an INA term or provision is undefined or ambiguous, and the BIA has interpreted that term or provision in a published, precedential decision, we defer to the BIA's interpretation under Chevron, as long as it reflects a permissible construction of the INA statute. See Negusie v. Holder, 555 U.S. 511, 516โ17, 129 S.Ct. 1159, 1163โ64, 173 L.Ed.2d 20 (2009) ; PerleraโEscobar v. Exec. Office for Immigration, 894 F.2d 1292, 1296 (11th Cir. 1990).B. Crime of Child Abuse
However, general civil strife does not create eligibility for relief, even if the applicant's life is clearly threatened, unless the applicant proves the relationship between his fear of harm and a statutorily enumerated ground. Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1297-99 (11th Cir. 1990). The standard for withholding of removal "is more stringent than the "well-founded fear of future persecution' required for asylum.
If the threat of violence equally affects all people in a country, without regard for their membership in a group or class recognized by the INA, then that general threat of violence "will not support a finding of a well-founded fear of persecution." Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir. 2005); see Perlera-Escobar v. Exec. Office for Immigration, 894 F.2d 1292, 1297 (11th Cir. 1990) (discussing whether petitioner's fear of harm from both sides of a civil war constituted persecution or "civil strife outside the intended reach of the [INA]"). Upon reviewing the record, substantial evidence supports the BIA's decision that Etienne was not entitled to asylum under the INA based on a well-founded fear- of future persecution.
The BIA's factual determination that Mazariegos is removable and not entitled to asylum must be upheld if it is supported by substantial evidence. See, e.g., INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1296 (11th Cir. 1990) (per curiam) ("[a] factual determination by the BIA that an alien is statutorily ineligible for asylum or withholding is reviewed under the substantial evidence test"); cf. 8 U.S.C. ยง 1252(b)(4)(B) (administrative findings of fact supporting order of removal "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"). We have described the substantial evidence test as "deferential," and have emphasized we may not "re-weigh the evidence" from scratch.
Factors bearing on whether a political offender can be considered a refugee include "the nature of the law on which the prosecution is based." UNHCR Handbook at paragraph 86, cited in Dwomoh v. Sava, 696 F. Supp. 970 (S.D.N.Y. 1988); see also Perkovic v. I.N.S., 33 F.3d 615 (6th Cir. 1994); Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292 (11th Cir. 1990). Addressing a somewhat analogous issue, we have held that prosecution for a crime can constitute persecution, when the underlying law being enforced is contrary to internationally accepted principles of human rights.