Unreported / Non-Citable
Background
Dmitrii Tropskii, a 47-year-old Russian national from Sochi, sought asylum in the United States after years of anti-government activism, including participation in rallies affiliated with opposition leader Alexei Navalny and a 2022 solo protest against Russia’s war in Ukraine. Following that protest, Russian authorities arrested him, convicted him of an administrative offense, and sentenced him to five days’ confinement. Police subsequently issued warning notices to him and visited his relatives to discourage his activism. In October 2022, he received a conscription notice from the Russian military. Fearing persecution and torture if returned to Russia, Tropskii applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
Despite these circumstances, Tropskii returned to Russia four or five times after initially departing for Armenia in September 2022, traveling without incident to visit his gravely ill mother. Russian authorities issued him a valid passport, and there was no evidence that authorities had searched for him or visited his relatives after his September 2022 departure. An immigration judge (IJ) found Tropskii credible but denied all relief, and the Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision. Tropskii timely petitioned the Fifth Circuit for review.
On appeal, Tropskii challenged the agency’s findings on all three forms of relief. He argued that his political activities, Navalny affiliation, and conscription resistance gave rise to a well-founded fear of persecution, and that harsh Russian prison conditions for political dissidents satisfied the CAT’s torture standard. He also contested the BIA’s ruling that he had forfeited a pattern-or-practice persecution claim by failing to raise it before the IJ.
The Court’s Holding
The Fifth Circuit denied the petition for review under the substantial evidence standard, concluding that the record did not compel a finding contrary to the agency’s conclusions. On the asylum claim, the court held that Tropskii’s fear of future persecution based on political opinion was not objectively reasonable. Key countervailing facts — including the Russian government’s issuance of his passport, his repeated uneventful returns to Russia, and the absence of any known efforts by authorities to pursue him — undermined any showing that the Russian government had the “inclination to punish” him. The court also affirmed the BIA’s forfeiture ruling on the pattern-or-practice claim, noting that Tropskii’s only record citations in support of having raised the claim below pointed to his BIA brief, not IJ proceedings.
On the conscription-related asylum claim, the court applied its precedent from Milat v. Holder, 755 F.3d 354 (5th Cir. 2014), reaffirming that punishment for violating laws of general applicability — like conscription — does not itself constitute persecution. The court found substantial evidence supported the agency’s conclusion that a potential two-year prison sentence for conscription evasion was not disproportionately severe on account of a protected ground, particularly given Tropskii’s uneventful visits to Russia after receiving his conscription notice. The court further held that Tropskii’s unequivocal stated intent to refuse military service meant he could not show he would be “required to engage in inhumane conduct as part of military service,” foreclosing the second route to conscription-based asylum eligibility.
Because the evidence did not compel a finding of a well-founded fear of persecution under the lower asylum standard, the court concluded Tropskii necessarily failed to meet the higher “clear probability” standard required for withholding of removal. On the CAT claim, the court found that past harm falling short of persecution necessarily fell short of torture, that generalized country-conditions evidence regarding Russian human rights abuses did not establish Tropskii’s personal risk, and that the prospect of torture based on his political activities and conscription resistance was speculative given his repeated incident-free returns to Russia.
Key Takeaways
- Voluntary return trips to one’s home country without incident are powerful evidence against both subjective and objective fear of persecution — the court cited Tropskii’s four or five uneventful visits to Russia as substantially undermining his claims across all three forms of relief.
- Under Milat, prosecution for conscription evasion under laws of general applicability does not constitute persecution; an applicant must show either that the punishment would be disproportionately severe on account of a protected ground, or that service would require inhumane conduct — and a stated intent to refuse service forecloses the inhumane-conduct route.
- A pattern-or-practice persecution claim not raised before the IJ is forfeited on appeal to the BIA and the circuit court; mere submission of country-conditions evidence and testimony about others’ treatment does not itself preserve the claim.
- Generalized country-conditions evidence of systemic human rights abuses — even credible and detailed State Department reporting — is insufficient on its own to establish a particular applicant’s personal risk for CAT purposes.
Why It Matters
This decision illustrates how fact-specific the well-founded fear inquiry remains even for applicants with documented histories of anti-government activism in repressive states. For practitioners, it underscores that conduct seemingly inconsistent with a claimed fear — particularly voluntary returns to the country of alleged persecution — can be dispositive, regardless of the broader human rights environment. Courts applying the substantial evidence standard will credit agency findings that a government lacks the “inclination to punish” a particular applicant when that government has, in practice, left the applicant alone.
The opinion also reinforces the narrow path for conscription-based asylum claims in the Fifth Circuit. Applicants who categorically intend to refuse military service face a difficult doctrinal bind: their refusal is evidence that they will not be compelled to commit inhumane acts, yet the punishment for that refusal is generally not treated as persecution unless it is disproportionate on account of a protected ground. Attorneys representing clients fleeing military conscription in countries with poor human rights records should carefully develop the record on both the proportionality of anticipated punishment and the applicant’s likely military role before the IJ.