Introduction

Russia’s February 2022 invasion of Ukraine and the ensuing war caused many people from both Russia and Ukraine to flee abroad and seek protection. We have seen and dealt with many cases of Russian citizens applying for asylum based on the fear of being forced to join the Russian military and participate in its brutal War against Ukraine.

In this article, we will explore the relevant statutes, regulations, and case law governing asylum claims by people seeking to avoid compulsory service in a military that has been condemned by the international community for ongoing war crimes or other forms of inhuman conduct. Note, as we will explain, that these sorts of conscientious objector claims are distinguishable from conscientious objector claims raised by people who oppose all military service as a general matter for moral, political, or religious reasons.

General Overview for Asylum

In order to be eligible for asylum, an alien must establish that he or she has a well-founded fear of persecution on account of one of five protected grounds: Race, Religion, Nationality, Membership in a particular social group, or Political opinion. In theory, a compulsory military service claim can be related to any of the five protected grounds. While religion and political opinion may be the most obvious grounds on which such a claim may be based, we have dealt with cases wherein ethnic minorities in Russia assert a well-founded fear based on evidence that Russia has singled out ethnic minorities for compulsory military service and the worst assignments on the battlefield.

We note again that this article deals with a very specific type of conscientious objector to military service claim – objections based on serving in a military condemned by the international community for committing inhuman acts. While the precedents sometimes differ, these claims will generally require the alien to establish the international condemnation of the military or campaign in question, that he or she would be sufficiently likely to be pressed into service and forced to participate in or commit the acts condemned by the international community, and that he or she would likely face persecutory harm for evading or otherwise refusing military service. It is important to note that this is not the only possible asylum claim related to compulsory military service. For example, an alien can in theory show that he or she is being singled out on account of a protected characteristic in the context of compulsory service,but this article focuses only on claims involving an internationally condemned military and campaign.

Case Law

Neither the statutes nor regulations specifically address asylum claims based on resistance to compulsory military service. Thus, we turn to case law – precedential decisions rendered in actual cases – to understand the general guidelines for raising compulsory military service asylum claims. Before we begin discussing specific cases, we should understand the significance of the cases.

We will discuss decisions of the Board of Immigration Appeals and various United States Courts of Appeal. Decisions of the Supreme Court of the United States have precedential value nationwide. Precedential decisions of the Board of Immigration Appeals are binding on immigration judges and adjudicators, but not necessarily on courts. Decisions of the United States Courts of Appeal are binding where those courts have jurisdiction. For example, decisions of the United States Court of Appeals for the Second Circuit are binding in all matters arising in New York, Connecticut, and Vermont. Decisions of the Third Circuit are binding in matters arising in Pennsylvania, New Jersey, and Delaware. We discussed the appellate jurisdiction of the courts of appeals in a separate article.

Relevant Decisions of Board of Immigration Appeals

“[T]he motivation of an alleged persecutor is a relevant and proper consideration when analyzing an alien’s eligibility for asylum.” Matter of Canas, 19 I&N Dec. 697, 707 (BIA 1988). In raising a claim as a conscientious objector, the alien must show that “the conscription laws were enacted or are applied in a persecutory matter, e.g., with only those with religious objections being punished for their refusal to join the military.” Matter of Canas, 19 I&N Dec. 697, 708 (BIA 1988). That is, a state attempting to enforce compulsory military service on an individual who opposes military service does not necessarily result in a colorable asylum claim. “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 Vigil, 19 I&N Dec. 572, 578 (BIA 1988).

Some cases fall outside the ambit of traditional conscientious objector claims. Prior to publishing Matter of Canas and Matter of Vigil, the Board published an important decision in Matter of A-G-, 19 I&N Dec. 502 (BIA 1987). Therein, while the Board noted that countries may require military service of their citizens and that compulsory military service does not, without more, constitute persecution, “[e]xceptions to this rule may be recognized in those rare cases where a disproportionately severe punishment would result on account of [a protected ground], 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 (emphasis added). In 1992, the Board restated the inhuman conduct exception to the ordinary principles for adjudicating military service objector claims and defined the term “inhuman conduct” as meaning “conduct condemned by the international community as contrary to the basic rules of human conduct.” Matter of R-R-, 20 I&N Dec. 547, 551 (BIA 1992).

The language of the Board’s decision not only cuts to the different bases of traditional conscientious objector claims and claims based on opposition to serving in a specific military based on its conduct, but also what an alien needs to prove in order to prevail. The ordinary conscientious objector must show that he or she would be singled out for persecutory treatment on account of at least one protected ground. For example, someone who objects to compulsory military service on account of religious objections may try to establish that he or she is being denied a generally applicable exemption to conscription because of his or her religion and that he or she would be singled out for persecutory harm on the same basis. That is, the persecution in that case is not necessarily the military service per se, but instead that the asylum applicant is being singled out for mistreatment in the form of conscription on account of a protected ground. Conversely, in the case of someone who resists compulsory military service because the military in question engages in inhuman conduct, the service itself may constitute persecution – although that does not relieve the applicant of needing to show that he or she has a well-founded fear of suffering persecution for refusing to serve.

The Board has not published anything substantive about this particular issue since Matter of R-R-. However various Federal circuit courts have weighed in on the issue and articulated their own rules and addenda to Matter of R-R- for adjudicating what we will describe as objections to engaging in inhuman conduct claims. Below, we will work through the most important federal circuit court precedents on the issues.

Before continuing, it is worth covering a tangentially related decision of the Board in Matter of Salim, 18 I&N Dec. 311 (BIA 1982). Here, the Board found that an Afghan alien who deserted to avoid being forced into service in the Soviet military wherein he would have to fight against his fellow Afghans satisfied his burden of establishing that his deportation to Afghanistan should be withheld. Id. at 313. The Board addressed Matter of Salim in Canas in stating that it was significant that the respondent “did not object to performing military service for his own government, but instead for an army that was under a foreign government’s control.” Matter of Canas, 19 I&N Dec. at 709.

United States Court of Appeals for the FIRST Circuit

Jurisdiction: Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico.

The First Circuit has recognized that “[e]ven though a sovereign nation enjoys the right to enforce its laws of conscription, and normal penalties for evasion are generally not considered persecution; however,” … “an alien is eligible for asylum if ‘the alien would be associated with a military whose acts are condemned by the international community as contrary to the basic rules of inhuman conduct.’” Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004); Vujisic v. INS, 224 F.3d 578, 580 (7th Cir. 2000); Mojsilovic v. INS, 156 F.3d 743, 746 (7th Cir. 1998). Concurring with the Seventh Circuit (discussed below), the First Circuit held that any punishment for desertion or draft evasion when the alien seeks to avoid serving in such a military may constitute persecution. Mekhoukh, 358 F.3d at 126; Vujisic, 224 F.3d at 581.

Regarding the burden of proof, the First Circuit has held that the alien has the burden of proving that upon removal, he or she would likely be drafted, assigned to combat duty, and obligated to commit human rights violations in the course of combat duty. Mekhoukh, 358 F.3d at 128. An alien in this circumstance must prove “that there is a reasonable possibility that the alien will have to serve or be punished for refusing to serve.” Mekhoukh, 358 F.3d at 127; Mojsilovic, 156 F.3d at 747.

Mekohoukh is a notable decision in that it highlights that the alien must do more than establish that the military he or she refuses to serve in due to its engaging in inhuman conduct and that it has been condemned by the international community for such conduct. The alien must also establish that there is a realistic probability that he or she would be pressed into service, that there is no alternative to service that would require him or her to engage in inhuman conduct, and that he or she would be punished for refusing to serve. The First Circuit concluded in the case before it that the alien did not satisfy his burden on these points based on the evidence in record – specifically noting that the alien failed to prove that it would have been futile for him to request an exemption from combat duties.

United States Court of Appeals for the SECOND Circuit

Juristiction: Connecticut, New York, and Vermont.

The Second Circuit has recognized that while “[t]ypically, compulsory military service does not provide asylum seekers with adequate cause for claiming persecution,” there are exceptions. Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir. 2005). One of the two exceptions involves a case where the alien “is fleeing to avoid punishment for refusing to join a ‘military force condemned by the international community.’” Islami, 412 F.3d 396; Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000). The Second Circuit went a step further than the Board and some of its sister circuits in holding additionally that “for those individuals who seek to avoid serving in a military whose brutal and unlawful campaigns are directed at members of their own race, religion, nationality, or social or political group, the requirements for stating a persecution claim are met at a significantly lower threshold of military wrongdoing than would be required if the objections are simply a matter of conscience.” Islami, 412 F.3d at 397.

Islami is to the best of our knowledge the only significant precedent which definitively takes the position that an alien’s burden of proving that he or she would be forced to serve in a military condemned by the international community for inhuman conduct is lower – with respect to establishing the military’s inhuman conduct – if the military is campaigning against a population with a protected characteristic shared by the alien raising the asylum claim. While Islami is only binding precedent in the Second Circuit, its extension to the generally applicable conscientious objector claims may be instructive to adjudicators in other jurisdictions. (The Seventh Circuit does approach the same idea in the context of evaluating the alien’s reasons for refusing to serve in a condemned campaign and his likelihood for punishment in Mojsilovic v. INS, 156 F.3d 743, 747 (7th Cir. 1998)). Practitioners would be advised to examine whether out-of-Circuit citations to the Islami extension may also be supported in specific cases by the Board’s precedent in Matter of Salim, 18 I&N Dec. 311 (BIA 1982). For example, one could imagine a hypothetical case where the situation of a Crimean individual who resists compulsory service in the Russian military may be described by both Matter of Salim and Islami.

United States Court of Appeals for the THIRD Circuit

Jurisdiction: Delaware, New Jersey, and Pennsylvania.

“[C]ourts have recognized that where conscription places an individual in a position in which he might be forced to commit acts that the international community condemns, punishment for refusing to participate in such acts may amount to persecution for purposes of an asylum claim.” Kibinda v. AG of the United States, 477 F.3d 113, 121 (3d Cir. 2007). The Third Circuit distinguished the case it had before it in Kibinda from Islami (see our discussion of Islami above in the Second Circuit section) because the alien had not refused to serve in the military in the past, but instead argued that he would refuse in the future. The court found based on this record that the alien had failed to establish that there was a reasonable probability he would be placed in such a position of being conscripted or punished for refusing military service in the future. Kibinda, 477 F.3d at 121-22.

Kibinda generally adopts the rules set forth in Islami and multiple Seventh Circuit decisions (discussed below) on the issue. The Third Circuit analyzed the applicant’s claims under the rules set forth in Islami because the applicant used Islami to support his argument. This analysis may lend some support to referring to Islami in similar cases in the Third Circuit, but it is important to note that the Third Circuit never explicitly adopted the Second Circuit’s view that an alien may have a lower burden regarding establishing the condemnation of the military in question where it is targeting members of the alien’s ethno-religious group.

United States Court of Appeals for the FOURTH Circuit

Jurisdiction: Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

The Fourth Circuit addressed the Board’s decision in Matter of A-G-, 19 I&N Dec. 502 (BIA 1987), and agreed with the Board’s reasoning that while resistance to conscription in the ordinary case does not ordinarily constitute the basis of a well-founded fear of persecution, the Board “properly acknowledged that an exception to this rule will be recognized and an alien will be considered eligible for asylum in those rare cases in which either (1) the alien would be associated with a military whose acts are condemned by the international community as contrary to the basic rules of human conduct, or (2) refusal to serve in the military results not in normal draft evasion penalties, but rather in disproportionately severe punishment on account of one of the five grounds enumerated in [INA 101(a)(42)(A)]…” M.A. A26851062 v. United States INS, 899 F.2d 304, 312 (4th Cir. 1990) (en banc). The Fourth Circuit also recognized that the asylum applicant bears the burden of establishing “that the military in which he might be forced to serve has committed acts that are contrary to the basic rules of human conduct.” Id. The Court suggested that the alien must show that the inhuman conduct was connected to an official government policy and that isolated incidents of inhuman conduct do not suffice for the alien’s burden. Id. The Fourth Circuit also found that the alien cannot sustain the burden of showing the military in question is internationally condemned “based solely on pronouncements of private organizations or the news media…” Id. at 313. Here, the Court reasoned that allowing an alien to rely solely on the opinions of private organizations or media outlet “would require us to make immigration decisions based on our own implicit approval or disapproval of U.S. foreign policy and the acts of other nations.” Id. “Unless the government’s non-action has been condemned by a recognized public governmental body, the inquiry into the government’s ‘control’ over forces within its borders would place us in precisely the political posture that we have attempted to avoid.” Id. at 314.

In 2020, the Fourth Circuit again recognized that an alien may establish political persecution on account of opposition to being “forced to serve in ‘a military whose acts are condemned by the international community as contrary to the basic rules of human conduct.’” Ordonez v. Barr, 956 F.3d 238, 244 (4th Cir. 2020); M-A- v. INS, 899 F.3d at 312. While Ordonez does not break new ground, it is worth studying because in M.A. the alien prevailed.

M.A. remains a significant precedent on the issue of resisting service in a military condemned by the international community for inhuman conduct. It goes into more detail than most other precedents on the issue of how to prove that a military is condemned by the international community for engaging in inhuman conduct. While some adjudicators may be less strict about the evidence needed to sustain the alien’s burden than the Fourth Circuit in M.A., the decision nevertheless provides a good general evidentiary target.

United States Court of Appeals for the FIFTH Circuit

Jurisdiction: Louisiana, Mississippi, and Texas.

The Fifth Circuit has in at least two precedential decisions acknowledged that an alien who evades military service because such service would necessarily require the alien to participate in inhuman acts condemned by the international community has been recognized by various circuit courts as a basis for asylum. Milat v. Holder, 755 F.3d 354, 362-63 & n.6 (5th Cir. 2014); Gomez-Mejia v. INS, 56 F.3d 700, 703 n.1 (5th Cir. 1995). We emphasize that the Fifth Circuit recognized the standard as requiring the alien to prove that he or she would necessarily, rather than likely, be forced to engage in inhuman conduct as part of his military service. Milat, 755 F.3d at 362. The Fifth Circuit held that a brief detention for refusing military service, without more, would not support finding that the alien had a well-founded fear of future persecution. Milat, 755 F.3d at 363.

The Fifth Circuit appears to recognize a somewhat higher standard relating to the likelihood of engaging in inhuman conduct than some of its sister circuits, but it is important to note that neither Milat nor Gomez-Mejia analyze the issue beyond citing to out-of-circuit precedents. For raising Fifth Circuit claims based on resistance to serving in a military condemned by the international community for inhuman conduct, we recommend carefully studying footnote 6 in Milat to understand which parts of out-of-circuit decisions the Fifth Circuit found to be instructive on the issue.

United States Court of Appeals for the SEVENTH Circuit

Jurisdiction: Illinois, Indiana, and Wisconsin.

“[I]f the ‘military action with which an individual does not want to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could…in itself be regarded as persecution.;” Pelinkovic v. Ashcroft, 366 F.3d 532, 538 (7th Cir. 2004); Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000). The Seventh Circuit relied on the refugee handbook in finding “that it is the punishment for refusing to serve in an internationally condemned military–not the mere summons to serve–that constitutes persecution.” Mojsilovic v. INS, 156 F.3d 743, 747 (7th Cir. 1998). In the case an alien refuses such a summons, “the only relevant factor is the likelihood that the alien will be punished.” Mojsilovic, 156 F.3d at 747; M.A. A26851062 v. INS, 858 F.2d 210, 214-15 (4th Cir. 1988). In Mojsilovic, the Seventh Circuit considered evidence in the record that the military in question, the Yugoslav military, had only sporadically pursued service evaders and that the alien in question was almost 50 in finding that the likelihood of punishment “seems especially remote.” Mojsilovic, 156 F.3d at 747. However, in a similar case two years later, the Board held that a Slovenian who refused service in the Yugoslav military in part because he believed he would be punished for refusing to kill Slovenians had established a well-founded fear, noting evidence that his family had been subjected to harm because of their Slovenian roots and that the alien himself had been singled out by the military on account of his being Slovenian. Vujisic, 224 F.3d at 581-82 (7th Cir. 2000). The Seventh Circuit repeatedly found the United States’ position on condemning a foreign military campaign to be significant in finding that the campaign was condemned by the international community. Vujisic, 578 F.3d at 582; Pelinkovic, 366 F.3d at 538

The Seventh Circuit addressed a distinct but sometimes related issue in Miljkovic v. Ashcroft, 376 F.3d 754 (7th Cir. 2004). Here, it held that “sending members of a hated ethnic minority into battle without ammunition [is] persecution.” Miljkovic, 376 F.3d at 756 (7th Cir. 2004). Moreover, “picking on an ethnic minority for hazardous military duty goes well beyond mere ‘discrimination,’ even if they are given ammunition.” Miljkovic, 376 F.3d at 756.

The Seventh Circuit decisions are notable in that they turn first to the language of the Refugee Handbook and focus little on out-of-circuit precedent. The Seventh Circuit decision also places an emphasis on condemned military campaigns, which may be more helpful in some cases than focusing on condemned militaries. The focus on Mojsilovic on the applicant being an ethnic minority targeted for service to fight members of his minority group is similar to the issue raised by the Second Circuit in Islami. Other than the somewhat unique decision in Miljkovic, the Seventh Circuit precedents include interesting discussion of the types of punishment for refusal to serve in a condemned military campaign that may constitute persecution.

United States Court of Appeals for the NINTH Circuit

Jurisdiction: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, CNMI, and American Samoa.

The Ninth Circuit followed Matter of A-G- in finding that aliens “who, after submitting to mandatory conscription, are placed in a position that requires them to betray their conscience by engaging in inhuman conduct and refuse to engage in such conduct” present colorable asylum claims. Barraza Rivera v. INS, 913 F.2d 1443, 1451 (9th Cir. 1990). The Court subsequently noted that “[b]oth this court and the BIA have recognized conscientious objection to military service as grounds for relief from deportation, where the alien would be required to engage in inhuman conduct were he to continue serving in the military.” Ramos-Vasquez v. INS, 57 F.3d 857, 863 (9th Cir. 1995). “[P]unishment based on objection to participation in inhuman acts as part of forced military service is ‘persecution’ within the meaning of [INA 101(a)(42)(A)]…” Ramos-Vasquez, 57 F.3d at 863; Barraza Rivera, 913 F.2d at 1453. The Ninth Circuit held that an alien who refused to participate in paid assassinations and had reasonable probability of being killed for refusing to participate would have a well-founded fear of persecution on account of a protected ground. Barraza-Rivera, 913 F.3d at 1452.

Neither of the Ninth Circuit’s two main precedents on the issue venture beyond the four corner’s of the Board’s 1987 and 1992 decisions. However, Barraza-Rivera has been cited as being instructive by some of the Ninth Circuit’s sister circuits.

(See our October 25, 2022 success story for an example of how an immigration judge working in the jurisdiction of the Ninth Circuit resolved one of these claims under controlling precedent. Specifically see pages 15-17 of the decision PDF for the judge’s analysis, which includes a citation to Ramos-Vasquez.)

United States Court of Appeals for the ELEVENTH Circuit

Jurisdiction: Alabama, Florida, and Georgia.

The Eleventh Circuit published Mohammed v. United States AG, 547 F.3d 1340 (11th Cir. 2008), wherein it relied on First and Seventh Circuit precedents. “The likelihood of punishment for refusal to serve is … essential to the … burden of proof …: ‘An alien’s claim to asylum based on his objection to serving in an internationally condemned military requires proof that there is a reasonable possibility that the alien will have to serve or be punished for refusing to serve.’” Mohammed, 547 F.3d at 1346; Mojsilovic v. INS, 156 F.3d 743, 747 (7th Cir. 1998).

We ran into one interesting issue in arguing a case in the jurisdiction of the Eleventh Circuit. The attorney for the Department argued that the concept of internationally condemned military is distinguishable from the military being condemned for inhuman acts. We do not find this argument persuasive, but it highlights why it is important to carefully study and address the language of controlling precedents .

Conclusion

We bring this article to a close with a list of general tips and pointers to consider when assessing the viability of an asylum claim based on refusal to serve in a military condemned by the international community for inhuman acts. Note that this is not a do it yourself guide – we strongly recommend consulting with an immigration attorney who is experienced in the area of asylum and refugee protection when raising any claim for relief. This list is simply a list of general concepts based on our extensive practice experience and a survey of the controlling precedents.

  • Three points must be proven: (1) That the military is condemned for inhuman acts; (2) That the alien faces a sufficient likelihood of being forced to serve and participate in the condemned inhuman acts, and (3) That the alien would face persecutory harm for evading or otherwise refusing service.
  • Begin with the Board’s precedents in Matter of A-G- and Matter of R-R-. These precedents are binding on adjudicators nationwide and, to the best of our knowledge, no appellate Court has deemed them to be excessively broad. In jurisdictions such as the Sixth, Eighth, and Tenth Circuits which have not published substantive precedents on the issue, these Board decisions should be particularly significant.
  • Consider how controlling circuit court precedent in the relevant jurisdiction differs from A-G- and R-R-. For example, the Second Circuit decision in Islami addresses an additional line of argument in certain cases where the applicant is resisting fighting against members of his own ethnic group. The First and Third Circuits arguably set a lower bar for how likely it is that the alien would be forced to partake in inhuman acts than in the Board precedents.
  • Do not take for granted that the adjudicator will argue that the military in question is condemned by the international community or that it has been condemned for inhuman actions based on news reports. We recommend consulting the Fourth Circuit’s detailed precedent in M.A. for a blueprint on how to establish condemnation, beginning, when possible, with U.S. State Department reports and evaluating evidence from international bodies such as the United Nations. The Seventh Circuit suggests that condemnation by the United States government may be especially persuasive.
  • Carefully consider the wording that the controlling precedents in your jurisdiction uses. For example, note our point in the Eleventh Circuit section that some attorneys and adjudicators may try to distinguish between condemned militaries, condemned campaigns, and condemned actions. Also note what your precedents say regarding the likelihood that the applicant would be forced to participate in inhuman conduct or the likelihood that the applicant would be punished for refusing.
  • If possible, present evidence regarding additional reasons an alien may refuse service in a military beyond opposing its inhuman acts. For example, we have dealt with many claims raised by Russian citizens who have a prior history of activism against Russian government policies or who are ethno-racial minorities who oppose how Russia has treated members of their ethno-racial group with respect to the multiple campaigns against Ukraine.
  • In cases where an applicant was not subjected to conscription in the past, be prepared to explain why he or she likely would be in the future with reference to conditions in the country of prospective removal. Evidence pertaining to how the country enforces or ignores its own laws may be relevant. In cases where the applicant fled to avoid a conscription order, be prepared to explain why the applicant did not seek an alternative form of service that would not have required him or her to directly engage in inhuman acts, if applicable.

As always, we conclude by reiterating that if you fear serving in a foreign military in part because you would likely be forced to engage in human rights violations, it is essential to have your case evaluated by an experienced immigration attorney. No matter how strong your case may be in theory, the alien bears the burden of proving that he or she merits asylum through his or her testimony and supporting evidence. If nothing else, our survey of cases show that the rules for this particular type of asylum claim vary from jurisdiction to jurisdiction.