BIA May Screen New CAT Evidence for Reliability Without Resolving Disputed Facts

1. Introduction

In Zahid v. Blanche, the Fifth Circuit denied two consolidated petitions challenging the Board of Immigration Appeals’ rejection of protection under the Convention Against Torture (CAT), a request to remand for consideration of new evidence, and a subsequent motion for reconsideration. The petitioner, Hayatullah Zahid, feared torture by the Taliban because of his former Afghan government employment, participation in a protest supporting girls’ education, and alleged identification as an American sympathizer.

The decision’s principal contribution concerns the boundary between permissible evidentiary screening and prohibited appellate factfinding. The majority held that, when deciding whether newly submitted evidence warrants remand, the BIA may assess reliability and probative value—including inconsistencies with the existing record—without necessarily resolving disputed historical facts. Judge Southwick dissented because he believed the BIA crossed that boundary when it discounted Taliban summonses identifying Zahid as a protest leader.

The opinion also confirms that substantial-evidence review governs the agency’s ultimate CAT-eligibility determination, that past persecution creates no presumption of future torture, and that evidence of widespread abuses must be evaluated for what it establishes about the particular applicant’s prospective risk.

2. Background and Procedural History

Zahid’s experiences in Afghanistan

Before the Taliban returned to power in 2021, Zahid supervised the education department in Afghanistan’s Paktia Province. After the takeover, Taliban officials directed him to provide information about female students and their families. He complied for several months.

In September 2022, Zahid attended a protest against the closure of girls’ schools and shared photographs and video with contacts outside Afghanistan. Taliban officials arrested him, detained him for seven days, beat and interrogated him, and accused him of acting for the United States. His family and community secured his release.

Zahid remained in Afghanistan for more than a year after this incident and traveled across its borders without further detention. He permanently departed in October 2023 and entered the United States in February 2024.

The immigration proceedings

After being charged as inadmissible for lacking valid entry documents, Zahid applied for asylum, withholding of removal, and CAT protection. The Immigration Judge found that his provision of information to the Taliban constituted material support to a Tier I terrorist organization, making him ineligible for asylum and withholding of removal. Zahid did not challenge those determinations before the Fifth Circuit.

The IJ nevertheless found that Zahid’s detention and beating amounted to past persecution based on his political opinion concerning girls’ education. That finding did not establish CAT eligibility: the IJ concluded that Zahid had not shown that torture upon return was more likely than not.

The BIA affirmed and declined to remand for consideration of additional evidence, including Taliban summonses, statements from relatives and community members, news reports, and declarations concerning a relative’s beating and Zahid’s knowledge of the Taliban’s alleged search for him. The BIA subsequently denied reconsideration. Zahid petitioned for review of both decisions.

3. Summary of the Opinion

The majority rejected each challenge:

1. Judicial review: Substantial-evidence review applies to the agency’s CAT-eligibility determination, including its application of the governing standard to the facts.
2. BIA review: The BIA applied the appropriate distinction between clear-error review of factual findings and de novo review of legal questions.
3. No CAT presumption: Past persecution does not trigger a presumption of future torture. Even past torture is a relevant factor rather than a presumptive entitlement to CAT protection.
4. Country evidence: The BIA adequately demonstrated that it considered the country-conditions evidence and the cumulative record.
5. Underlying CAT claim: The existing record did not compel a finding that Zahid would more likely than not be tortured.
6. Remand: The BIA permissibly screened the new evidence for materiality and reliability and gave rational, record-based reasons for finding it unlikely to change the outcome.
7. Reconsideration: Zahid largely repeated earlier arguments without identifying an error of law or fact warranting reconsideration.

Judge Southwick would have required further IJ consideration of the new evidence. His dissent did not conclude that Zahid had already established entitlement to CAT protection; it concluded that material evidence required evaluation by the designated factfinder.

4. Legal Reasoning

A. Two distinct levels of review

The opinion separates the BIA’s review of the IJ from the court’s review of the agency. Confusing these levels would obscure the decision:

Zahid argued that the ultimate CAT determination presented a mixed question of law and fact requiring independent judicial review. The court rejected that argument under 8 U.S.C. § 1252(b)(4)(B), which makes administrative factual findings conclusive unless any reasonable adjudicator would be compelled to disagree.

The controlling distinction is between evidence that could support relief and evidence that compels relief. An appellate court does not reverse merely because it might have assessed the evidence differently. It must conclude that no reasonable factfinder could reach the agency’s result.

Separately, the majority found no failure in the BIA’s own review. The Board identified the proper standards, considered the testimonial and documentary evidence, and reached its conclusion from the cumulative record rather than treating the IJ’s ultimate conclusion as binding.

B. CAT protection requires a distinct showing

CAT protection required Zahid to establish that he would more likely than not be tortured if removed. The opinion describes torture, under 8 C.F.R. § 1208.18(a)(2), as an extreme form of cruel and inhuman treatment, excluding lesser forms of cruel, inhuman, or degrading treatment. Official involvement is also necessary, but the Taliban’s status as a state actor for CAT purposes was undisputed.

The IJ’s persecution finding therefore did not resolve the CAT claim. The majority distinguished both the severity of the anticipated harm and the regulatory framework governing future risk. The withholding-of-removal provision, 8 C.F.R. § 1208.16(b)(1)(i), contains a presumption associated with past persecution; the CAT provisions in § 1208.16(c) contain no comparable presumption.

Importantly, the court did not need to decide conclusively whether Zahid’s 2022 beating itself constituted torture. Even assuming that it did, past torture remained one factor in evaluating future risk, not a substitute for the required prospective showing.

C. Considering country evidence is different from finding it sufficient

CAT regulations require consideration of all evidence relevant to possible future torture. Zahid argued that the BIA overlooked reports documenting Taliban abuses against former government officials, protesters, and civil-society figures.

The majority found adequate consideration because the BIA referred to the cumulative record, identified pages containing the reports, and discussed the distinction between general country conditions and particularized risk. The Board’s reconsideration decision expressly confirmed that it had reviewed those materials.

The court did not hold that general country evidence is irrelevant or categorically incapable of establishing a CAT claim. Its narrower conclusion was that these reports, even alongside evidence concerning similarly situated people, did not compel a finding about Zahid’s own probability of torture.

D. The individualized evidence did not compel relief

The majority evaluated several aspects of Zahid’s personal history:

• The 2022 detention and beating: This was serious mistreatment, but an isolated episode did not compel the conclusion that future torture was probable.
• Subsequent freedom of movement: Zahid remained in Afghanistan for over a year and crossed its borders without further detention, despite opportunities for the Taliban to apprehend him.
• Harm to friends and colleagues: Those incidents demonstrated danger but concerned other people, and most preceded Zahid’s own arrest.
• The American-spy theory: The record lacked objective evidence that similarly situated returnees were tortured on that basis or that the Taliban systematically targeted failed asylum seekers returning from the United States.

The passport inspections were particularly relevant to the last theory: they occurred after Taliban officials had already accused Zahid of American allegiance. The majority treated his uneventful crossings as evidence against the asserted likelihood of future torture.

This reasoning is record-specific. Neither remaining in a country after persecution nor crossing its borders necessarily defeats a CAT claim. Here, those circumstances supported a reasonable agency conclusion that the predicted harm remained insufficiently established.

E. The central holding: screening new evidence is not necessarily factfinding

A motion to remand based on new evidence is governed by the standards applicable to reopening. Under 8 C.F.R. § 1003.2(c)(1), the evidence must be material, previously unavailable, and not reasonably discoverable or presentable at the former hearing. Materiality asks whether the evidence would likely change the result.

The majority reasoned that this threshold inquiry necessarily entails an assessment of evidentiary quality. Otherwise, the BIA would have to remand whenever new material was submitted merely so the IJ could decide whether remand was justified.

The court nevertheless acknowledged a limit: the Board must leave disputed historical facts to the IJ. Its holding permits preliminary assessment of reliability and probative force, not unrestricted resolution of factual disputes on appeal.

Application to the new evidence

Taliban summonses

The majority recognized that reliable proof of an active Taliban search would be important and substantially more individualized than general reports. It nevertheless upheld the BIA’s concerns about timing and the summonses’ description of Zahid as a protest “leader,” which differed from his testimony that he photographed and shared images of the event.

Zahid explained that detention restricted his family contact and delayed his discovery of the summonses. The majority held that the BIA could consider the timing discrepancy despite that explanation. It likewise characterized the conflicting descriptions of his protest role as a permissible reason to question reliability, not a determination of which description was historically correct.

Family and community statements

The Board considered these statements but assigned reduced weight because the declarants were interested witnesses unavailable for cross-examination. The majority distinguished discounting evidence for stated reasons from failing to consider it altogether.

News reports

The BIA identified authentication concerns, an unfamiliar source, and missing information such as a publication date. The court also held that Zahid forfeited a challenge to the Board’s treatment of these reports.

A relative’s declaration and photographs, and a friend’s declaration

The majority assumed, without deciding, that these materials were properly before the BIA. It found that the evidence did not adequately establish the cause and motivation of the relative’s injuries or show that Zahid himself would probably face torture. Even interpreted as showing continued inquiries about Zahid and one beating of his relative, it was not likely to change the outcome.

The majority’s analysis identifies the injured relative as Zahid’s nephew, while the dissent calls him Zahid’s cousin. That discrepancy in the supplied opinion does not alter the legal disagreement over who should assess the evidence.

F. The dissent: materiality screening cannot become a credibility adjudication

Judge Southwick agreed that the BIA may initially screen new evidence. He disagreed that the Board’s treatment of these summonses remained within that function.

Under 8 C.F.R. § 1003.1(d)(3)(iv), the BIA generally may not engage in factfinding while deciding cases. The dissent viewed the summonses as facially material because they directly addressed the decisive weakness in Zahid’s earlier presentation: the lack of evidence that the Taliban was specifically searching for him.

The dissent also offered a different explanation for the supposed inconsistency. Zahid could have been merely a photographer while the Taliban believed he led the protest. Those propositions are not necessarily mutually exclusive. Indeed, an exaggerated Taliban perception of his role could strengthen the inference of danger rather than undermine the documents’ reliability.

For Judge Southwick, choosing to treat that difference as evidence of unreliability required an assessment reserved to the IJ. The summonses should have been examined alongside reports of systematic torture and evidence of harm to similarly situated people. An IJ could ultimately reject them, but the proper factfinder had to make that determination.

The disagreement is therefore institutional as well as evidentiary: how much assessment of credibility can occur before a materiality inquiry becomes adjudication of the disputed facts themselves?

G. Reconsideration requires an identified error

Under 8 U.S.C. § 1229a(c)(6)(C), a reconsideration motion must specify errors of law or fact in the previous order and support them with pertinent authority. It is not simply another opportunity to present the same appeal.

Because Zahid largely repeated his CAT and remand arguments without establishing such an error, the majority upheld the denial of reconsideration.

5. Precedents Cited and Their Influence

A. Standards of judicial review

• Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017): Supplies the baseline division between de novo review of legal conclusions and substantial-evidence review of factual findings. It frames the court’s review without making every application of law to facts independently reviewable.

• Aguilar-Quintanilla v. McHenry, 126 F.4th 1065 (5th Cir. 2025): Supports substantial-evidence review of CAT ineligibility. It also plays an important evidentiary role: the majority distinguished its failure-to-consider-affidavits problem from the BIA’s express consideration and discounting of Zahid’s statements. The dissent invoked its recognition of evidence that may independently establish CAT protection to emphasize the significance of proof that the Taliban was searching specifically for Zahid.

• Urias-Orellana v. Bondi, 607 U.S. 537 (2026): The majority treated this Supreme Court asylum decision as closely analogous. Its application of substantial-evidence review to both underlying findings and statutory application reinforced the rejection of Zahid’s proposed de novo review of CAT eligibility. The opinion does not treat it as announcing one standard for every mixed question in immigration law.

• Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017): Provides the requirement that evidence compel a contrary result. It also supports the proposition that the agency need not accept an applicant’s explanation for an inconsistency, which mattered to Zahid’s account of when he learned about the summonses.

• Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006): Expresses substantial-evidence review in especially demanding terms: the evidence must be so compelling that no reasonable factfinder could disagree. This explains why a plausible competing interpretation did not itself require reversal.

B. CAT’s substantive requirements

• Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002): Supplies the more-likely-than-not requirement and supports the adequacy of an agency explanation that demonstrates consideration of the issues without discussing every evidentiary detail.

• Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006): Establishes the official-involvement component: torture must involve a public official or someone acting in a public capacity through infliction, consent, or acquiescence. That requirement was not contested because the agency treated the Taliban as a state actor.

• Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019): Reinforces the regulatory duty to consider all evidence relevant to possible future torture. It establishes that general reports must be considered even when the agency ultimately finds them insufficient.

• Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018): Supports substantial-evidence review and the distinction between persecution and torture. Its statement that some likelihood of persecution is insufficient helped defeat Zahid’s effort to carry the withholding presumption into CAT analysis.

• Hernandez-Martinez v. Garland, 59 F.4th 33 (1st Cir. 2023), and Dawson v. Garland, 998 F.3d 876 (9th Cir. 2021): Provide persuasive inter-circuit support for the conclusion that past persecution does not create a presumption of future torture.

• Fuentes-Pineda v. Bondi, 170 F.4th 914 (5th Cir. 2026): Is a central substantive analogy. The majority relied on it for the greater severity required for torture, the limited predictive force of isolated mistreatment, and the relevance of opportunities for further torture that did not result in harm. It also confirms that past torture is one factor and that appellate review asks what the record compels, not merely what it permits.

• Bah v. Ashcroft, 341 F.3d 348 (5th Cir. 2003): Places the burden of establishing CAT entitlement on the applicant. It supports the conclusion that evidence of serious danger does not suffice unless it establishes the required probability of torture.

• Agwuegbo v. Bondi, No. 24-60388, 2025 WL 1704435 (5th Cir. June 18, 2025): Illustrates the insufficiency of a predictive chain resting on suppositions and general evidence. It supported the majority’s concern that harm to other activists did not establish the necessary probability of harm to Zahid.

C. Country evidence and adequate agency explanation

• Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021): Involved refusal to consider country-conditions evidence. The majority distinguished it because Zahid’s reports were acknowledged and evaluated.

• Ndifon v. Garland, 49 F.4th 986 (5th Cir. 2022): Involved an agency denial that relevant evidence existed. That defect was absent because the BIA identified Zahid’s reports.

• Noumbissi v. Garland, No. 21-60012, 2022 WL 1744787 (5th Cir. May 31, 2022): Addressed a decision giving no indication that relevant evidence had been reviewed. The express references in Zahid’s case supplied the indication missing there.

• Aben v. Garland, 113 F.4th 457 (5th Cir. 2024): Supports the principle that the Board need not address every evidentiary detail or provide an extended exposition. It quotes Abdel-Masieh v., 73 F.3d 579 (5th Cir. 1996), whose title is incomplete in the supplied opinion. Together, these authorities support concise but reviewable agency reasoning, not disregard of material evidence.

• L.N. v. Garland, 109 F.4th 389 (5th Cir. 2024): Reinforces the requirement that the agency show consideration of the issues and explain its result sufficiently to permit judicial review.

• Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019): Supplies the proposition that generalized country evidence says relatively little about whether a particular person will be tortured. Both opinions use it, but differently: the majority found Zahid’s merits record insufficiently individualized, while the dissent emphasized that the new summonses supplied precisely the individualized connection previously missing.

D. Remand, reopening, and the factfinding boundary

• Milat v. Holder, 755 F.3d 354 (5th Cir. 2014): Establishes highly deferential abuse-of-discretion review and supports the materiality inquiry for new evidence. It supplies the framework under which rational evidentiary assessments ordinarily survive review.

• Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005): Supports the deferential review standard but also anchors the dissent. Judge Southwick relied on its treatment of significant new evidence and evidence establishing a crucial missing proposition to argue that the summonses warranted remand. Its use by both sides shows that deference does not eliminate meaningful review of materiality.

• Suate-Orellana v. Barr, 979 F.3d 1056 (5th Cir. 2020): Is the majority’s principal remand precedent. It supplies the materiality and unavailability requirements, defines materiality by likely effect on the result, and approves record-based explanations for discounting new evidence. It also supplies the demanding formulation under which a denial must be irrational, arbitrary, or otherwise seriously defective to constitute an abuse of discretion.

• Nguhlefeh Njilefac v. Garland, 992 F.3d 362 (5th Cir. 2021), and I.N.S. v. Doherty, 502 U.S. 314 (1992): Support the characterization of remand or reopening as particularly disfavored. They reinforce the demanding procedural setting without dispensing with the obligation to evaluate genuinely material evidence.

• Chun Yin Lang v. Mukasey, 305 F. App’x 232 (5th Cir. 2008): Connects motions to remand with the standards and regulations governing motions to reopen, explaining the application of § 1003.2(c)(1).

• Marqus v. Barr, 968 F.3d 583 (6th Cir. 2020): Provides persuasive support for meaningful threshold assessment. Its criticism of inadequate screening reinforced the majority’s view that the Board must do more than mechanically accept new submissions.

• Mir v. Gonzales, 207 F. App’x 498 (5th Cir. 2006): Supports reliance on defects in newly submitted evidence when denying reopening. The majority used it to justify assessing the summonses’ reliability.

• Santos-Zacaria v. Garland, 126 F.4th 363 (5th Cir. 2025): Is the central contested precedent. It prohibits the BIA from choosing between disputed facts not resolved by the IJ. The majority distinguished that prohibition from using an inconsistency to assess evidentiary force at the remand threshold; the dissent regarded that distinction as untenable on these facts.

• Hammerschmidt v. Garland, 54 F.4th 282 (5th Cir. 2022): Appears through the dissent’s discussion of Santos-Zacaria v. Garland. It reinforces the allocation of disputed factual determinations to the IJ.

• Matter of Coelho, 20 I & N Dec. 464 (BIA 1992): Supports the dissent’s distinction between merely cumulative evidence and evidence addressing the actual reason for denial. Judge Southwick viewed the summonses as the latter because they identified an active, individualized threat.

E. Weight assigned to particular evidence

• Katembo v. Barr, 825 F. App’x 225 (5th Cir. 2020): Supports assigning limited weight to supportive statements from interested persons unavailable for cross-examination. It helped sustain the treatment of family and community declarations.

• Matter of H-L-H-, 25 I. & N. Dec. 209 (BIA 2010): The opinion also identifies this authority as Matter of H-L-H- & Z-Y-Z-. Its treatment of interested relatives and friends supported reduced evidentiary weight. The majority used that citation to explain why the BIA’s reference to “uninterested” witnesses was apparently a typographical error.

• Chen v. Holder, 547 F. App’x 541 (5th Cir. 2013), and Zheng v. Holder, 465 F. App’x 350 (5th Cir. 2012): Support discounting foreign-source materials with authentication and related reliability defects. Their role is evidentiary, not to establish that every foreign report requires one exclusive form of authentication.

F. Reconsideration and preservation of issues

• Cruz v. Barr, 929 F.3d 304 (5th Cir. 2019): Supplies abuse-of-discretion review of reconsideration and supports denial where no qualifying legal or factual error is established.

• Samayoa-Montufar v. Sessions, 724 F. App’x 349 (5th Cir. 2018), quoting Erazo-Aguilar v. Sessions, 719 F. App’x 453 (5th Cir. 2018): Explains that reconsideration is not achieved by resubmitting the same appellate argument or generally alleging error.

• Jaco v. Garland, 24 F.4th 395 (5th Cir. 2021): Establishes forfeiture of unbriefed challenges. It limits the case to the contested CAT and procedural issues, leaving the asylum and withholding determinations unreviewed, and separately forecloses an undeveloped challenge concerning the news reports.

6. Potential Impact

Greater latitude for BIA threshold screening

The decision strengthens the BIA’s ability to deny remand through reasoned assessments of the quality of new evidence. Applicants cannot secure a new hearing merely by submitting documents that would matter if accepted as reliable.

That authority remains qualified. The majority expressly preserves the prohibition on resolving disputed historical facts. Future cases will likely turn on whether the Board actually identifies evidentiary weaknesses or instead decides which competing factual account is true.

A contested boundary involving persecutors’ beliefs

The dissent identifies a recurring difficulty: an alleged persecutor’s characterization of an applicant may differ from the applicant’s description of actual conduct. Such a difference may reflect fabrication, but it may also reveal a dangerous misperception. Future disputes may require closer examination of whether apparent inconsistencies are genuinely contradictory.

More attention to the connection between country conditions and personal risk

The opinion encourages applicants to connect reports of systematic abuse with their own circumstances through reliable evidence of threats, searches, targeting, or closely comparable victims. It does not make direct threats an indispensable element of every CAT claim.

Practical evidentiary consequences

Applicants seeking remand should explain document provenance, chronology, delayed discovery, apparent inconsistencies, and the relationship between third-party harm and their own risk. Family declarations remain relevant, but the opinion permits reduced weight for identified reliability concerns; it does not create a categorical exclusion.

The dissent highlights the corresponding danger: exacting scrutiny at the screening stage may prevent an IJ from examining the very evidence needed to establish individualized risk. That concern is especially significant when documents and witnesses originate in a repressive environment.

Limits of the decision

The ruling does not endorse the Taliban’s conduct, decide the unchallenged material-support determinations, conclusively classify the 2022 beating as something less than torture, or resolve whether the disputed declarations were properly filed. Its disposition rests on deferential review and the evidence presented in these proceedings.

7. Complex Concepts Simplified

CAT protection

Protection against removal to a country where the applicant would probably face torture involving the requisite official participation or acquiescence.

Persecution versus torture

Persecution can involve grave mistreatment, but torture requires an especially extreme level of harm. Establishing persecution does not automatically establish torture.

More likely than not

The predicted torture must be more probable than its nonoccurrence, not merely possible or reasonably feared.

Substantial-evidence review

The reviewing court leaves the agency’s determination intact unless the record requires the opposite conclusion.

De novo review

The reviewing body decides the relevant legal question independently rather than deferring to the prior legal conclusion.

Material new evidence

Evidence sufficiently consequential that it would likely change the result, rather than simply repeat what is already known.

Remand

Sending the matter back to the IJ for further proceedings, potentially including testimony and factual findings.

Evidentiary screening versus factfinding

Screening evaluates whether evidence justifies reopening the inquiry. Factfinding determines what actually happened. The majority and dissent disagreed about where one became the other.

Abuse of discretion

A demanding review standard asking whether the agency’s decision lacked a rational, legally permissible foundation—not whether another outcome was preferable.

Reconsideration versus reopening

Reconsideration targets errors in an existing decision; reopening, and a comparable evidence-based remand request, seeks further proceedings based on qualifying new evidence.

Forfeiture

Losing appellate consideration of an issue by failing to present and develop the challenge.

8. Conclusion

Zahid v. Blanche confirms that CAT claims require a distinct, forward-looking showing of probable torture and that appellate disagreement with the agency’s assessment is insufficient without compelling contrary evidence.

Its most consequential holding permits the BIA to examine new evidence for reliability and likely effect before ordering remand, while reserving disputed historical findings to the IJ. Judge Southwick’s dissent exposes the difficulty of maintaining that distinction when alleged inconsistencies may themselves illuminate the persecutor’s perception of the applicant. The decision’s lasting importance lies in that boundary between legitimate screening and premature factual adjudication.