In a July 7, 2026, decision, Matter of R-A-N-, the Board of Immigration Appeals (BIA) dealt with the issue of people coming to the United States seeking asylum to avoid military service, commonly pejoratively referred to as “draft dodgers.” The BIA issued this decision as a result, obviously, of large numbers of Russian men fleeing to the United States to avoid conscription in the Russian military where there have been war-crime atrocities occurring.

Having a well-founded fear death or persecution if deported is not a sufficient basis to seek asylum. An asylum seeker must fear persecution for the right reason – because of race religion, nationality, membership in a social group, or a political opinion. This is the consequence of the fact that asylum seekers seek protection by asserting that they are refugees defined at INA § 101(a)(42), as “any person … unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The BIA held in Matter of R-A-N- that conscription is not a stand-alone basis for asylum; it must have a nexus to a protected ground. It is here that the BIA is being willfully blind. There is an obvious nexus between a protected ground and an alien who would be required to engage in inhuman conduct. That qualifying ground is political opinion. Under the case law of the Ninth Circuit expressed in the case Ramos-Vasquez v. INS, about a deserter from military service rather than a person avoiding conscription, a meaningless distinction in this context, the court wrote, “If a soldier deserts in order to avoid participating in acts condemned by the international community as contrary to the basic rules of human conduct, and is reasonably likely to face persecution should he return to his native country, his desertion may be said to constitute grounds for asylum based on political opinion.”

It may not be only the BIA’s fault that it did not connect the political opinion nexus to Mr. R-A-N-’s fear of persecution. His attorney and the immigration judge may not have drawn the connection and the BIA refrained from curing any oversight. The BIA has made clear that it won’t define a social-group nexus when the applicant has not identified one, holding that “[A]n applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.”  It is quite a system we have where a person can prove a fear of persecution if deported but will be denied because of failing to utter a few words of a proper nexus or satisfactorily characterizing the nexus – particularly when the nexus is obvious. Appellate Article III courts routinely expound on issues raised by litigants, usually refining them to make new law. The BIA, on the other hand, refuses to deal with diamonds in the rough. Here they are declining to fill in a black for the political opinion nexus.

It is clear the United States government is not keen on accepting as refugees people fleeing conscription in the Russian military. Casualties are extremely high for Russian conscripts, with the CIA chief stating that “[T]he average expected survival time for Russian conscripts arriving at the Ukrainian battlefield is estimated at 20–30 minutes.” Omaha Beach and Okinawa beach-landers did better than that. Nonetheless, saving one’s skin is not sufficient for asylum. Applicants have to demonstrate it is performing war crimes they object to. Thus applicants would have to show that they oppose the illegal actions of the military by, first, articulating the nexus properly and then showing its application to themselves by a current statement, past statements, and past acts. Obviously, someone like William Calley or Michael Oren would be hard-pressed to show political opposition to war crimes. Additionally, an applicant would have to show some possibility of being compelled to commit war crimes. How does the conscript know his future unit will be ordered to commit war crimes? These are high hurdles, but to get to that stage of litigation, applicant will first have to say the magic words identifying the nexus as no one will do it for them – even when it is easy peasy. Posted July 24, 2026.

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