# Cite as 29 I&N Dec. 739 (BIA 2026)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Afe5d0156748a0ccc

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

Matter of R-A-N-, Respondent
Decided July 7, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Conscription does not serve as a standalone basis for asylum in the absence of a nexus
to a protected ground.
(2) Conscription that would require an alien to engage in inhuman conduct condemned by
the international community constitutes persecution only when the conscription or
required conduct is tethered to a protected ground. Matter of A-G-, 19 I&N Dec. 502,
506 (BIA 1987), clarified.
(3) International condemnation of the Russian military’s actions is insufficient to render
conscription persecutory; rather, the respondent must demonstrate that, if conscripted,
he himself would necessarily be required to engage in inhuman conduct on account of
a protected ground.
FOR THE RESPONDENT: Amir Naim, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Counsel

Mary Ellen Withrow,

BEFORE: Board Panel: HUNSUCKER and GOODWIN, Appellate Immigration Judges.
Concurring Opinion: MULLANE, Appellate Immigration Judge.
GOODWIN, Appellate Immigration Judge:

The Department of Homeland Security (“DHS”) appeals from the
Immigration Judge’s decision, dated November 19, 2024, granting the
respondent’s application for asylum under section 208(b)(1)(A) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(b)(1)(A) (2024).
The respondent, a native and citizen of Russia, opposes the appeal. We
received supplemental briefing from DHS, the respondent, and amici curiae. 1
Oral argument was presented in this case on February 10, 2026. We will
sustain the appeal and remand the record to the Immigration Court.
The respondent seeks asylum and related relief because of his
oppositional political views and fear of forced conscription in Russia. He
We have accepted and considered the brief submitted by Connection e.V. and Russian
America for Democracy in Russia as amici curiae.

1

page

739

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

testified that he fled to Turkey in October 2022 when military mobilization
and conscription orders intensified in Russia. 2 In March 2023, two men in
government uniforms went to the respondent’s registered address in Russia
and asked his mother about his whereabouts. The same men visited his
mother a week thereafter, this time stating the respondent was subject to
military service and required a medical examination in order to be deployed.
The respondent’s mother was visited a third time, in October 2023, by city
administrators who asked about his whereabouts. Finally, in September
2024, military personnel visited the respondent’s mother and gave her a
summons stating the respondent was obligated to appear for a medical
examination for purposes of military deployment.
The Immigration Judge determined that the respondent did not establish
past harm rising to the level of persecution and, therefore, did not establish
past persecution. The Immigration Judge found the respondent has a
subjective fear of future persecution due to his political opinion but
determined such fear is not objectively reasonable. The Immigration Judge
found the respondent did not demonstrate the requisite nexus between the
harm he fears and his political opinion or any other protected ground.
However, the Immigration Judge granted asylum on the basis that the
respondent has a well-founded fear of persecution on account of conscription
into an internationally condemned military.
To be eligible for asylum, an alien must establish that he is a “refugee”
as defined in section 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A)
(2024). INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A); Ponce v. U.S. Att’y
Gen., 141 F.4th 1214, 1215 (11th Cir. 2025). In relevant part, a “refugee” is
an individual who is (1) outside the country of his nationality, (2) unable or
unwilling to return to that country, and (3) unable or unwilling to avail
himself of that country’s protection, (4) because of persecution or a wellfounded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(2)(i)(A)
(2020). Persecution on account of one of these statutorily protected grounds
refers to persecution motivated by the victim’s protected ground, not the
persecutor’s. INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). Further, this
At the merits hearing, DHS raised a firm resettlement bar argument as a result of the
respondent’s relocation to Turkey. The Immigration Judge concluded that the respondent
was not firmly resettled in Turkey because the residence permit he received placed
“significant restrictions” on his residence. DHS does not challenge this determination on
appeal. We, therefore, deem the issue waived. See Matter of P-B-B-, 28 I&N Dec. 43, 44
n.1 (BIA 2020) (stating that arguments not raised on appeal are deemed waived).

2

page

740

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

nexus analysis requires the alien to provide direct or circumstantial evidence
that the persecutor would be motivated by the alien’s actual or imputed
protected ground. Id. at 483.
At issue on appeal is whether conscription serves as a standalone basis
for asylum in the absence of a nexus to a protected ground. We conclude
that it does not.
The decision of the Supreme Court of the United States in INS v. EliasZacarias, 502 U.S. at 478, is instructive on this issue. In that case, the Court
analyzed an alien’s forced conscription claim in the context of nexus to his
political opinion, not as a standalone claim. 502 U.S. 478, 482–83. Noting
that the refugee definition in the INA “makes motive critical,” the Court
emphasized that the burden is on the alien to establish he would be persecuted
“because of” his protected ground. Id. at 483. The parties have not pointed
to any case in which asylum was granted without the applicant establishing
a nexus to a protected ground. This includes Mohammed v. U.S. Att’y Gen.,
547 F.3d 1340 (11th Cir. 2008), on which the Immigration Judge relied to
grant asylum.
The Board and several Federal circuit courts of appeals have long held
that military conscription is not per se persecution. See, e.g., Mekhoukh v.
Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004) (noting that nations have the right
to enforce laws of conscription, and normal penalties for evasion of military
service generally are not considered persecution); Matter of Vigil, 19 I&N
Dec. 572, 578 (BIA 1988) (“It is a long-established principle of international
law that a sovereign government has the right to draft its citizens and
maintain an army for the purpose of self-defense.”); Matter of A-G-, 19 I&N
Dec. 502, 506 (BIA 1987) (“We hold to the long-accepted position that it is
not persecution for a country to require military service of its citizens.”).
We have held that refusing military conscription may give rise to a claim
of persecution in some very specific, exceptional circumstances, namely in
those cases where a “disproportionately severe punishment would result on
account of one of the five grounds enumerated in section 101(a)(42)(A)” of
the INA, “or where the alien would necessarily be required to engage in
inhuman conduct as a result of military service required by the government.”
Matter of A-G-, 19 I&N Dec. at 506. However, these exceptions do not create
a standalone covered ground. These exceptions must still be tethered to one
of the five grounds specified in the refugee definition: race, religion,
nationality, membership in a particular social group, or political opinion. See
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Absent a persecutory
intent connected to a covered ground, a claim of forced conscription will not
page

741

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

support a grant of asylum. See Matter of Canas, 19 I&N Dec. 697, 708–11
(BIA 1988) (concluding that asylum was not warranted where a
conscientious objector did not establish conscription laws were enacted or
applied to only those with religious objections); Matter of Vigil, 19 I&N Dec.
at 578-79 (conscription was not shown to be on account of one of the five
protected grounds); accord Matter of A-G-, 19 I&N Dec at 506. 3
These very rare circumstances are not present here because the
Immigration Judge found, without clear error, that the respondent “does not
have a well-founded fear of future persecution on account of a protected
ground.” Although the Immigration Judge went on to grant asylum finding
that Russia’s military is internationally condemned and that there is at least
a ten percent likelihood that the respondent will be conscripted, on de novo
review we conclude that the Immigration Judge’s analysis is legally
erroneous. Conscription is not a standalone, sixth covered ground in the
INA. The respondent has not established that he is a refugee because he has
not established a nexus to a protected ground. 4
We acknowledge that the United States Court of Appeals for the Ninth
Circuit has issued two unpublished decisions which suggest that a nexus to a
covered ground is not required when considering the exception for those who
would necessarily be required to engage in inhuman conduct. See Razzouk
v. Garland, 845 F. App’x 575, 576 (9th Cir. 2021); Cardoza-Herrera v. INS,
67 F.3d 305 (9th Cir. 1995) (unpublished decision referenced in the Federal
Reporter’s “Table of Decisions Without Reported Opinions”). In these
Federal circuit courts of appeals have held the same. See, e.g., Lopez Ordonez v. Barr,
956 F.3d 238, 244 (4th Cir. 2020) (requiring nexus to a covered ground when alien who
was conscripted into an internationally condemned military resisted participating in
inhuman conduct); Ghebrehiwot v. Att’y Gen. U.S., 467 F.3d 344, 353 n.7 (3rd Cir. 2006)
(noting that conscription did not, by itself, constitute persecution on account of the alien’s
religion); Pelinkovic v. Ashcroft, 366 F.3d 532, 538–39 (7th Cir. 2004) (holding aliens did
not show they would be punished more harshly on account of ethnicity for avoiding
conscription); Melkonian v. Ashcroft, 320 F.3d 1061, 1068–69 (9th Cir. 2003) (addressing
forced conscription on account of ethnicity and religion); Alvarenga v. INS, 9 F.3d 103 (5th
Cir. 1993) (per curiam) (affirming determination that conscription was not on account of
the alien’s membership in a particular social group).

3

The Immigration Judge’s alternative determination that the respondent is eligible for
asylum because he would be disproportionately punished if he refuses to serve in Russia’s
military is also in error because the Immigration Judge did not consider whether such
punishment would occur on account of a protected ground. See Matter of R-R-, 20 I&N
Dec. 547, 551 (BIA 1992) (requiring nexus to a protected ground for such claims). Draft
evasion, particularly in time of war, is punished harshly by many countries, including the
United States.
4

page

742

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

cases, the Ninth Circuit first determined there is no nexus for the severe
punishment exception and then considered the inhuman conduct exception
without mentioning nexus. The cases do not explicitly state, or explain how,
a respondent is eligible for asylum or withholding of removal based on the
inhuman conduct exception despite a finding of no nexus. The language in
these two cases appears to arise from the wording employed in Matter of
A-G-, 19 I&N Dec at 506, which could be read to require a nexus only as to
the severe punishment exception. We now clarify that, under Matter of A-G-,
the inhuman conduct exception must also be tethered to a covered ground, as
conscription alone is not persecution, and without a covered ground an
applicant does not meet the refugee definition required to be eligible for these
forms of relief. Thus, conscription that would require an alien to engage in
inhuman conduct condemned by the international community constitutes
persecution only when the conscription or required conduct is tethered to a
protected ground.
Accordingly, the Immigration Judge erred in determining that the
respondent’s conscription would be persecutory because the Russian military
is “an internationally condemned military.” International condemnation of
the Russian military’s actions is insufficient to render conscription
persecutory; rather, the respondent must demonstrate that, if conscripted, he
himself “would necessarily be required to engage in inhuman conduct” on
account of a protected ground. Matter of R-R-, 20 I&N Dec. at 551 (citing
Matter of A-G-, 19 I&N Dec. at 502).
The Immigration Judge cited Mohammed v. U.S. Att’y Gen., 547 F.3d at
1346, which the respondent argues sets forth a different standard than Matter
of R-R-, 520 I&N Dec. at 551. We do not agree that Mohammed or other
case law within the United States Court of Appeals for the Eleventh Circuit,
where this case arises, creates a different legal standard than Matter of R-Rand Matter of A-G-. Mohammed cites Mekhoukh v. Ashcroft, 358 F.3d at
126, for the proposition that being forced to join an internationally
condemned military amounts to persecution. Mohammed v. U.S. Att’y Gen.,
547 F.3d at 1346. Mekhoukh summarizes its holding on that issue as
requiring an alien to show that “if he returned to [his native country] he would
be drafted, assigned to combat duty, and become obligated to commit human
rights violations.” 358 F.3d at 128 (emphasis added). The respondent’s
argument relies on a commonly used simplification of the concept that does
not modify the full holding that conscription into an internationally
condemned military is persecutory only if the alien would be required to
engage in inhuman conduct. Indeed, Mohammed does not reach the latter
part of the analysis because it relies on the alien’s failure to meet his burden
to prove that he would be forced to join the military. 547 F.3d at 1347.
page

743

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

We thus conclude that the Immigration Judge legally erred in determining
that international condemnation of a government’s military actions, or
condemnation of some soldiers for inhuman acts, was sufficient to establish
an exception to the general rule that conscription does not constitute
persecution. Instead, the respondent is required to establish not only that he
“would necessarily be required to engage in inhuman conduct (that is,
conduct condemned by the international community as contrary to the basic
rules of human conduct) as a result of military service required by the
government” but also a nexus to a protected ground. Matter of R-R-, 20 I&N
Dec. at 551. This the respondent did not do.
Based on the foregoing, the respondent has not established eligibility for
asylum, and the Immigration Judge legally erred by treating conscription as
a protected ground for asylum separate from race, religion, nationality,
membership in a particular social group, and political opinion. See INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(2)(i)(A).
The lack of a nexus to a protected ground renders the respondent statutorily
ineligible for both asylum and withholding of removal under the INA. See
8 C.F.R. § 1208.16(b)(2) (2026); see also, e.g., Jathursan v. U.S. Att’y Gen.,
17 F.4th 1365, 1375 (11th Cir. 2021) (describing how nexus issue impacts
both asylum and withholding of removal). Because the Immigration Judge
did not reach the respondent’s alternative claim for protection under the
regulations implementing the Convention Against Torture (“CAT”), 5 we will
remand the record for adjudication of that claim. 6
Accordingly, the following orders will be entered.

ORDER: DHS’ appeal is sustained, and the Immigration Judge’s

November 19, 2024, decision granting asylum is vacated.

FURTHER ORDER: The record is remanded to the Immigration

Court to adjudicate the application for protection under the regulations
The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c) , 1208.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020).

5

The respondent has also filed a motion to remand. The respondent’s motion does not
show clear error in the Immigration Judge’s protected ground finding, nor otherwise
rehabilitate the legal error in the Immigration Judge’s determination that the respondent’s
conscription would constitute persecution. Thus, we deny the respondent’s motion. Our
remand is limited to the respondent’s claim for CAT protection.

6

page

744

Cite as 29 I&N Dec. 739 (BIA 2026)

Interim Decision #4215

implementing the Convention Against Torture consistent with the foregoing
opinion and for the entry of a new decision.
CONCURING OPINION: Hugh G. Mullane, Appellate Immigration Judge
I concur in the result reached by the majority. No party disputes the
Immigration Judge’s finding that respondent has not shown past persecution
or a well-founded fear of persecution on account of his political opinion (the
only asserted protected ground). The Immigration Judge’s legal error in this
case was her failure to properly apply the nexus requirement as set forth in
INS v. Elias-Zacarias, 502 U.S. 478 (1992). In that case, the Supreme Court
held: “The ordinary meaning of the phrase ‘persecution on account of . . .
political opinion’ in § 101(a)(42) is persecution on account of the victim’s
political opinion, not the persecutor’s.” Id. at 482. The Immigration Judge’s
conclusion that respondent met his burden of proof by merely showing a fear
of conscription in Russia is thus foreclosed by Elias-Zacarias. I would
reverse the grant of asylum on this basis alone and remand so respondent has
an opportunity to make a claim for protection under the Convention Against
Torture.

page

745

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Afe5d0156748a0ccc. Public record. Not legal advice.