Tropskii v. Blanche: Repeated Voluntary Returns Undermine “Objective Fear,” Conscription-Evasion Punishment Usually Not Persecution, and Pattern-or-Practice Claims Must Be Raised to the IJ

1. Introduction

In Tropskii v. Blanche (5th Cir. June 11, 2026) (per curiam), Dmitrii Tropskii, a Russian national, petitioned for review after the Board of Immigration Appeals (BIA) affirmed an Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection. Tropskii claimed fear of harm in Russia due to (i) anti-government political activity (including Navalny-affiliated involvement), (ii) anti-war expression, and (iii) refusal to comply with a Russian conscription notice.

The core issues were whether substantial evidence supported the agency’s determinations that Tropskii (a) lacked an objectively reasonable fear of persecution for asylum purposes; (b) necessarily failed the higher standard for withholding; and (c) failed to show it was more likely than not he would be tortured for CAT relief. A procedural issue also mattered: whether Tropskii could press a pattern-or-practice theory on appeal when the BIA found he had not raised it before the IJ.

2. Summary of the Opinion

The Fifth Circuit denied the petition for review, holding that substantial evidence supported the agency’s denial of all forms of relief. Key factual considerations included that Russian authorities issued Tropskii a passport; he returned to Russia four or five times after leaving for Armenia; he entered without incident; he was not physically harmed; and he was unaware of any searches for him or post-departure visits to relatives.

On conscription, the court applied Fifth Circuit law that punishment for violating generally applicable conscription laws is not persecution “on account of” political opinion absent narrow exceptions. The court agreed that the record did not compel a finding that Tropskii faced disproportionately severe punishment or that he would be required to engage in inhumane conduct.

On CAT, the court held that lack of past torture, generalized country evidence, and the speculative chain of contingencies (detention → harsh incarceration → torture) did not compel CAT protection—particularly given Tropskii’s repeated uneventful returns to Russia.

3. Analysis

3.1 Precedents Cited

  • Carreon v. Garland, 71 F.4th 247 (5th Cir. 2023): The court relied on it for waiver/abandonment principles on petition for review—because Tropskii did not brief whether past harm amounted to persecution, the court did not consider it.
  • Mejia-Alvarenga v. Garland, 95 F.4th 319 (5th Cir. 2024) and Wang v. Holder, 569 F.3d 531 (5th Cir. 2009): These frame the scope of review—review the BIA’s decision, and where the BIA adopts and affirms the IJ, review both decisions.
  • Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006): Supplies the substantial-evidence standard for asylum/withholding/CAT factual determinations and the doctrinal link that failure to satisfy asylum’s lower burden necessarily defeats withholding’s higher burden.
  • Urias-Orellana v. Bondi, 146 S. Ct. 845 (2026): Quoted for the Supreme Court articulation of “substantial evidence” and the “compelled to conclude to the contrary” constraint on courts reviewing agency factfinding.
  • Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018): Used for core asylum framework (subjective + objective fear) and the alternative method of showing future persecution via pattern or practice.
  • Rangel v. Garland, 100 F.4th 599 (5th Cir. 2024): Provided the four-part articulation of objective reasonableness (belief or characteristic; awareness; capability; inclination). The court anchored its holding on the “inclination to punish” element.
  • INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), and Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019): Cardoza-Fonseca supplies the “reasonable possibility” asylum standard; Qorane cautions against rigid quantification and is also cited later in the CAT discussion for the limited probative value of generalized country evidence and the “a fortiori” logic that conduct not rising to persecution will not constitute torture.
  • Argueta-Hernandez v. Garland, 87 F.4th 698 (5th Cir. 2023), abrogated in part on other grounds by Riley v. Bondi, 606 U.S. 259 (2025): Cited for the proposition that a “reasonable degree” can mean roughly a ten percent chance; the panel noted Riley only to clarify the limited abrogation on unrelated grounds.
  • Milat v. Holder, 755 F.3d 354 (5th Cir. 2014): The controlling conscription precedent. It states punishment for evading generally applicable conscription is not persecution on account of political opinion and recognizes two exceptions: disproportionately severe punishment on a protected ground, or required participation in inhumane conduct.
  • Vazquez-Guerra v. Garland, 7 F.4th 265 (5th Cir. 2021): Reinforces that persecutor motivation—not the applicant’s—is the touchstone for “on account of” analysis.
  • Rubio v. Bondi, 147 F.4th 568 (5th Cir. 2025): Used by analogy for the evidentiary significance of multiple international trips without incident in undermining claimed future persecution.
  • Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002): Cited for the “more likely than not” standard for withholding (clear probability).
  • Santos-Alvarado v. Barr, 967 F.3d 428 (5th Cir. 2020): CAT claims are distinct and must be analyzed separately from asylum and withholding.
  • Martinez-Lopez v. Barr, 943 F.3d 766 (5th Cir. 2019): Supports reliance on the regulatory factor of “evidence of past torture” and permits weighing lack of past torture against CAT relief.

3.2 Legal Reasoning

A. Asylum: Objective Reasonableness and the “Inclination to Punish”

The court accepted the IJ’s credibility finding but emphasized that credibility does not itself establish objective risk. Applying Rangel v. Garland, the agency reasonably concluded the Russian government had not shown an “inclination to punish” Tropskii. The decisive evidentiary points were:

  • Russia issued Tropskii a passport after his political activity and administrative detention.
  • He voluntarily re-entered Russia multiple times after leaving, without incident, including after receiving a conscription notice.
  • He reported no post-departure search efforts and no harm to him or his family.

These facts allowed the agency to treat the feared future harm as insufficiently grounded in individualized risk. Under Urias-Orellana v. Bondi, the court’s role was not to reweigh evidence but to ask whether the record compelled the opposite conclusion; it did not.

B. Pattern-or-Practice: Issue Preservation Before the IJ

Tropskii argued a pattern-or-practice of persecution against similarly situated anti-war or Navalny-linked dissidents. The BIA rejected the theory as not raised to the IJ, and the Fifth Circuit upheld that forfeiture determination, noting Tropskii’s record citations pointed only to his BIA brief rather than to the IJ proceedings.

The practical rule reinforced here is procedural: a pattern-or-practice theory must be presented to the IJ (not merely supported by general country materials) to be considered on appeal to the BIA, and its absence can be dispositive.

C. Conscription: Milat’s Baseline Rule and Its Two Exceptions

The panel treated Milat v. Holder as controlling. The baseline rule: punishment for evading generally applicable conscription is not persecution on account of political opinion. Two exceptions were examined:

  1. Disproportionately severe punishment on a protected ground: The court held substantial evidence supported the finding that a sentence of up to two years for evasion did not establish disproportionate severity, even considering country evidence of harsh prison conditions and reported abuse of political prisoners. The panel analogized to Milat’s reasoning that even where some evidence suggests harsh treatment, the record may still not compel a conclusion of targeted, disproportionate punishment.
  2. Required engagement in inhumane conduct: The court accepted the agency’s reasoning that Tropskii’s unequivocal intent to refuse service and be imprisoned meant he failed to show he “would be required” to engage in inhumane conduct as part of service. The decision thus treats “required to engage” as demanding a non-speculative showing tied to the applicant’s likely service circumstances—something the agency found absent on this record.

D. Withholding of Removal: Automatic Failure After Asylum Denial

Using Chen v. Gonzales and Efe v. Ashcroft, the court applied the familiar hierarchy: withholding requires a higher likelihood than asylum. Because Tropskii did not establish even asylum’s “well-founded fear,” he necessarily failed the “clear probability” standard for withholding.

E. CAT: Generalized Evidence and Speculative Chains of Harm

Relying on Santos-Alvarado v. Barr, the court treated CAT separately but held the same evidentiary shortcomings defeated it:

  • Lack of past torture (a regulatory factor) weighed against relief, consistent with Martinez-Lopez v. Barr.
  • General country-conditions evidence, without a persuasive individualized nexus to the applicant, was insufficient, consistent with Qorane v. Barr.
  • The inference that Tropskii would be detained and then tortured in prison was deemed speculative, especially given repeated returns to Russia without incident.

3.3 Impact

Although the opinion is “not designated for publication,” its reasoning reflects—and may be cited as persuasive authority for— several practical constraints that will shape future cases in the Fifth Circuit:

  • Repeated voluntary returns to the claimed country of feared harm can be powerful evidence against objective fear and against CAT likelihood, especially when entries are documented and uneventful.
  • Conscription-based claims remain difficult under Milat v. Holder. Applicants need specific, individualized evidence that punishment will be disproportionately severe on a protected ground (not merely harsh prisons in general) or that their service circumstances would require inhumane conduct.
  • Issue preservation is outcome-determinative: applicants must clearly articulate a pattern-or-practice claim before the IJ, not merely introduce generalized articles or reports.
  • General country reports, even when describing serious human rights abuses, may not carry the burden without a non-speculative, individualized risk showing.

4. Complex Concepts Simplified

  • Substantial evidence review: The court does not decide whether it would reach the same result; it asks only whether the agency’s decision is supported by enough evidence that a reasonable factfinder could agree—reversal requires the record to “compel” the opposite.
  • Asylum vs. withholding vs. CAT: Asylum requires a “well-founded fear” (a lower threshold). Withholding requires “more likely than not” persecution (higher). CAT requires “more likely than not” torture (a different harm and a different legal test).
  • Objectively reasonable fear: Even a sincere fear is not enough; the record must show the feared persecutor is likely to target the applicant (including the persecutor’s “inclination to punish”).
  • Pattern or practice: A way to prove future persecution without showing the applicant will be singled out—by proving a systematic practice of persecuting a similarly situated group. Here, the theory failed procedurally because it was not raised before the IJ.
  • Conscription and persecution: Being drafted and punished for evasion is usually treated as law enforcement, not persecution, unless punishment is targeted and disproportionately severe on a protected ground, or the service would require inhumane acts.
  • Generalized country evidence: Reports about widespread abuse can support context, but the agency often requires a link to the applicant’s individualized likelihood of being tortured or persecuted.

5. Conclusion

Tropskii v. Blanche reinforces three central lessons in Fifth Circuit immigration adjudication: (1) objective fear and CAT risk can be substantially undermined by repeated voluntary returns without incident; (2) conscription-evasion claims are constrained by Milat v. Holder and typically require concrete, individualized proof fitting one of the two narrow exceptions; and (3) procedural discipline matters—especially preserving a pattern-or-practice theory before the IJ. In the broader legal context, the case illustrates how substantial-evidence review, combined with applicant travel history and issue-preservation rules, can be dispositive even where the record contains troubling generalized human-rights reporting.