2. Background and Procedural History
Hayatullah Zahid, an Afghan citizen, previously supervised the education department of Paktia Province for Afghanistan’s Ministry of Education. After the Taliban returned to power in 2021, officials required him to provide information about female students and their families. He complied for several months.
In September 2022, Zahid participated in a protest against the closure of girls’ schools and shared photographs and video outside Afghanistan. Taliban officials arrested him, detained him for seven days, beat and interrogated him, and accused him of acting for the United States. Family and community intervention secured his release. He remained in Afghanistan for more than a year afterward and traveled across its borders before leaving permanently in October 2023. He entered the United States in February 2024.
In removal proceedings, Zahid sought asylum, withholding of removal, and CAT protection. The IJ found that his detention and mistreatment constituted political-opinion persecution. Nevertheless, the IJ concluded 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 in the court of appeals.
The remaining dispute concerned CAT protection. The IJ found that Zahid had not established that the Taliban would more likely than not torture him upon return. The BIA dismissed his appeal and denied remand to consider additional evidence, including alleged Taliban summonses, family and community statements, news reports, and declarations concerning subsequent events. It later denied reconsideration. Zahid petitioned for review of both BIA decisions, and the court consolidated the petitions.
The Attorney General was the respondent in his official capacity. The case concerned review of administrative immigration decisions, not a claim that the Attorney General personally participated in Zahid’s mistreatment.
4. Analysis: Legal Reasoning and Precedents Cited
A. Judicial Review of CAT Determinations: Deference Extends to Fact-Dependent Application
Zahid argued that CAT eligibility presented a mixed question of law and fact requiring de novo judicial review. The majority rejected that characterization as a basis for fresh appellate evaluation. Under 8 U.S.C. § 1252(b)(4)(B), administrative factual findings remain conclusive unless any reasonable adjudicator would be compelled to disagree.
The court distinguished identifying the correct legal rule from deciding whether a particular evidentiary record satisfies it. Legal conclusions remain subject to de novo review, but the agency’s fact-dependent CAT-eligibility determination receives substantial-evidence review. Thus, an applicant cannot obtain independent appellate reweighing merely by describing the ultimate eligibility issue as “mixed.”
Precedents cited and their influence
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Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017):
supplied the general division between de novo review of legal conclusions and substantial-evidence review of factual findings.
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Aguilar-Quintanilla v. McHenry, 126 F.4th 1065, 1068 (5th Cir. 2025):
directly supported treating the determination that an individual is ineligible for CAT protection as a factual determination reviewed for substantial evidence.
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Fuentes-Pineda v. Bondi, 170 F.4th 914, 917–21 (5th Cir. 2026), and Cabrera v. Sessions, 890 F.3d 153, 164 (5th Cir. 2018):
demonstrated continuity in the circuit’s deferential treatment of CAT determinations. The court presented its approach as an application of established doctrine rather than an entirely new standard.
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Urias-Orellana v. Bondi, 607 U.S. 537, 545, 549–50 (2026):
provided Supreme Court support from the analogous asylum context. As described in the opinion, that decision applied substantial-evidence review to both underlying factual findings and application of the statute to those findings. The majority used that reasoning to reinforce its treatment of CAT eligibility.
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Morales v. Sessions, 860 F.3d 812, 818 (5th Cir. 2017), and Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006):
supplied the controlling formulation: reversal requires evidence compelling the opposite result, not merely evidence supporting it.
A separate issue concerned the BIA’s review of the IJ. The majority found that the Board correctly identified clear-error review for factual findings and de novo review for legal questions, then independently evaluated the cumulative record’s significance. There is no contradiction between that internal administrative framework and deferential judicial review: they govern different decisionmakers at different stages.
B. Past Persecution Does Not Establish a Presumption of Future Torture
Zahid sought to carry the IJ’s finding of past persecution into the CAT analysis through a presumption of future harm. The court rejected that approach because the relevant regulations establish distinct frameworks.
The presumption in 8 C.F.R. § 1208.16(b)(1)(i) concerns withholding of removal based on persecution. CAT protection is governed by § 1208.16(c), which contains no comparable presumption arising from either past persecution or past torture. Past torture remains important evidence, but it is one factor rather than a substitute for assessing future risk.
The distinction also concerns the character and severity of harm. Torture is an extreme form of cruel and inhuman treatment; conduct may amount to persecution without satisfying that definition. The court did not hold that Zahid’s earlier abuse could never qualify as torture. It reasoned alternatively that, even assuming it did, the record still did not compel a prediction of future torture.
Precedents cited and their influence
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Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002):
supplied the requirement that torture upon removal be more likely than not. This prospective inquiry remained essential despite the accepted finding of past persecution.
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Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006):
supplied the public-official involvement requirement: torture must involve infliction, consent, or acquiescence by a public official or person acting in a public capacity. The agency treated the Taliban as a state actor, and neither party disputed that determination.
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Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir. 2019):
emphasized consideration of all evidence relevant to future torture. The lack of a presumption therefore did not authorize the agency to disregard past mistreatment or broader contextual evidence.
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Cabrera v. Sessions:
supported the proposition that some likelihood of persecution does not establish CAT eligibility.
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Hernandez-Martinez v. Garland, 59 F.4th 33, 40 (1st Cir. 2023), and Dawson v. Garland, 998 F.3d 876, 882 (9th Cir. 2021):
supplied persuasive agreement from other circuits that past persecution does not create a presumption of future torture.
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Fuentes-Pineda v. Bondi:
reinforced both the greater severity required for torture and the principle that even past torture does not necessarily establish the required future likelihood.
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Bah v. Ashcroft, 341 F.3d 348, 351–52 (5th Cir. 2003):
confirmed that the applicant bears the burden of establishing CAT eligibility. Without a CAT presumption, that burden remained with Zahid.
Importantly, the court’s “greater showing” language concerns the distinction between persecution and torture. It should not be read as establishing a probability threshold higher than “more likely than not.”
C. Meaningful Consideration Does Not Require Discussion of Every Document
Zahid argued that the BIA overlooked reports documenting Taliban abuses against former officials, protesters, and civil-society figures. The majority distinguished failure to consider evidence from failure to discuss every item individually.
The Board stated that it considered the cumulative record, cited the pages containing the country reports, and explained the importance of particularized evidence. Its reconsideration decision expressly confirmed consideration of the reports and Zahid’s testimony. These features satisfied the requirement of an explanation adequate for judicial review.
Precedents cited and their influence
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Arulnanthy v. Garland, 17 F.4th 586, 598 (5th Cir. 2021):
involved refusal to consider country-conditions evidence. It established a meaningful limit on agency discretion, but the majority found no comparable refusal here.
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Ndifon v. Garland, 49 F.4th 986, 990 (5th Cir. 2022):
concerned an agency denial that relevant evidence existed. Here, the BIA expressly identified the reports.
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Noumbissi v. Garland, No. 21-60012, 2022 WL 1744787, at *2 (5th Cir. May 31, 2022):
involved an absence of any indication that the evidence had been reviewed. The references in Zahid’s case supplied the indication missing there.
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Aben v. Garland, 113 F.4th 457, 469 (5th Cir. 2024):
supported the principle that the BIA need not address evidentiary minutiae or provide an exhaustive exposition. It quoted Abdel-Masieh v., 73 F.3d 579, 585 (5th Cir. 1996); the latter case title is incomplete in the supplied opinion.
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Efe v. Ashcroft, 293 F.3d at 908, and L.N. v. Garland, 109 F.4th 389, 396 (5th Cir. 2024):
supported requiring enough explanation to show consideration of the issues and permit review, rather than a document-by-document response.
This is an explanation-sufficiency holding, not permission to replace analysis with a formulaic assertion. The majority relied on the Board’s identifiable engagement with the actual record.
D. Serious Danger Is Not Necessarily a Compelled Finding of Probable Torture
The majority evaluated Zahid’s evidence cumulatively but found several weaknesses in the connection between the record and the predicted outcome.
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Country reports: they documented serious Taliban abuses but did not establish a specific threat to Zahid.
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Harm to associates: arrests and torture of friends or former colleagues supplied context, but involved other people, and most incidents preceded Zahid’s own arrest.
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The 2022 detention: it was serious but isolated. Zahid subsequently remained in Afghanistan and crossed its borders without renewed detention, despite opportunities for the Taliban to act.
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The suspected-American-spy theory: the record did not show systematic torture of similarly situated returnees or Taliban monitoring of unsuccessful asylum seekers in the United States. Officials had also cleared his passport after previously accusing him of American connections.
Precedents cited and their influence
Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019), supplied the central caution that generalized country evidence says relatively little about whether a particular applicant will be tortured. The majority applied that principle to distinguish proof of widespread abuse from proof compelling an individualized probability exceeding fifty percent.
Agwuegbo v. Bondi, No. 24-60388, 2025 WL 1704435, at *5 (5th Cir. June 18, 2025), illustrated the weakness of predictions dependent on unsupported hypothetical links. Its role was to reinforce the need for evidentiary support connecting the applicant’s circumstances to the predicted torture.
Fuentes-Pineda v. Bondi provided the closest analogy concerning isolated mistreatment and subsequent opportunities for renewed abuse that did not occur. The majority treated those circumstances as making future torture less certain, while recognizing that past torture remained relevant.
Finally, Morales v. Sessions and Chen v. Gonzales explain why these evidentiary weaknesses were decisive on appeal: Zahid needed to establish not simply that a favorable finding was possible, but that a reasonable factfinder could not reach the agency’s conclusion.
The holding is record-specific. It does not establish that country evidence can never prove an individual CAT claim, that a named threat is invariably required, or that remaining in a country after mistreatment automatically defeats relief.
E. Remand: Reliability Screening Versus Prohibited Factfinding
The principal doctrinal dispute arose from the interaction of two regulations. Section 1003.2(c)(1) requires screening for material, previously unavailable evidence. Section 1003.1(d)(3)(iv) generally prohibits the BIA from engaging in factfinding when deciding appeals.
The majority reconciled them by distinguishing evaluating evidence to decide whether further proceedings are warranted from resolving the underlying historical dispute. A materiality inquiry necessarily requires some assessment of reliability and probative force. Otherwise, submitting new documents would effectively guarantee remand.
The Board therefore need not accept every new document at face value. It must, however, leave disputed historical facts to the IJ. The majority acknowledged that the boundary can be fine.
Precedents governing remand and review
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Milat v. Holder, 755 F.3d 354, 364–65 (5th Cir. 2014):
established highly deferential abuse-of-discretion review and supplied the framework for evaluating new evidence.
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Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005):
supported the deferential review standard through Milat v. Holder. Its treatment of important new evidence also became central to the dissent.
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Suate-Orellana v. Barr, 979 F.3d 1056, 1062–64 (5th Cir. 2020):
supplied the central materiality test—whether the new evidence would likely change the result—and supported denial where the Board gives record-based reasons for discounting it. It also supplied the demanding formulation under which agency action must be irrational or otherwise arbitrary to constitute an abuse of discretion.
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Nguhlefeh Njilefac v. Garland, 992 F.3d 362, 365 n.3 (5th Cir. 2021), citing I.N.S. v. Doherty, 502 U.S. 314, 322–23 (1992):
reinforced the disfavored status of reopening-type relief. That principle supported procedural restraint but did not eliminate the Board’s obligation to apply the regulations.
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Chun Yin Lang v. Mukasey, 305 F. App’x 232, 234 (5th Cir. 2008):
explained why reopening standards applied to Zahid’s motion to remand for new evidence.
Precedents defining the factfinding boundary
Santos-Zacaria v. Garland, 126 F.4th 363, 368–69 (5th Cir. 2025), prohibited the Board from choosing between disputed facts neither undisputed nor found by the IJ. The majority distinguished that decision because the BIA had not decided whether Zahid actually led the protest. It had treated the discrepancy between the summonses and his testimony as a reason to doubt the documents’ evidentiary force.
Mir v. Gonzales, 207 F. App’x 498, 498–99 (5th Cir. 2006), supported considering defects in newly submitted material when denying reopening. Marqus v. Barr, 968 F.3d 583, 593 (6th Cir. 2020), supplied persuasive support for meaningful threshold assessment, having criticized insufficient evaluation of new evidence.
These authorities did not authorize unrestricted appellate credibility findings. The majority’s narrower proposition was that inconsistencies can inform a remand-screening decision without necessarily resolving which competing account is true.
F. Application to the Newly Submitted Evidence
The Taliban summonses
The majority recognized that reliable proof of an active Taliban search would be substantially more particularized than general country reports. Nevertheless, it upheld the BIA’s concerns about timing and content.
One summons predated the IJ’s decision, although Zahid said he learned of the summonses months later. He explained that detention restricted family communications. Under Morales v. Sessions, 860 F.3d at 817, the agency was not required to accept his explanation for an apparent inconsistency.
Both summonses described Zahid as a protest leader, whereas his testimony described photographing and distributing images. The majority permitted the Board to consider this difference without deciding his actual role. Importantly, the court did not establish that a document’s prehearing date alone proves it was reasonably discoverable before the hearing.
Family and community statements
The Board discounted these statements because they came from interested witnesses unavailable for cross-examination. Katembo v. Barr, 825 F. App’x 225, 226 (5th Cir. 2020), supported assigning limited weight to a supportive person’s untested letter.
The opinion also cited Matter of H-L-H- and identified the fuller title as Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010). That administrative authority supported considering the authors’ interests and lack of cross-examination. The majority treated the BIA’s reference to “uninterested” witnesses as a typographical error in light of the authority cited.
Zahid’s reliance on Aguilar-Quintanilla v. McHenry, 126 F.4th at 1070–73, failed because the agency there had not considered the family affidavits at all. Here, it considered and discounted them. The majority also distinguished the procedural settings: merits review under substantial evidence versus remand screening under abuse of discretion.
The decision permits reasoned weighting; it does not make family evidence categorically inadmissible or worthless.
News reports
The reports lacked authentication, came from an unfamiliar source, and omitted basic information such as a publication date. Chen v. Holder, 547 F. App’x 541, 543 (5th Cir. 2013), and Zheng v. Holder, 465 F. App’x 350, 352 (5th Cir. 2012), supported discounting foreign-source documents with comparable defects.
The court also held that Zahid forfeited a challenge to the Board’s treatment of these reports by failing to brief it. Thus, its discussion should not be read as establishing a universal authentication requirement for all country evidence.
The relative’s declaration, photographs, and friend’s declaration
The majority assumed, without deciding, that these materials had been properly filed. The Government disputed their submission after an initial filing-location rejection.
The majority regarded the evidence as insufficiently likely to alter the result: the relative was interested and unavailable for cross-examination, the record lacked independent support for the cause and motive of the injuries, and the friend principally relayed information and explained when Zahid learned of the Taliban’s interest.
Even accepting that the Taliban sought Zahid’s whereabouts and beat his relative once, the majority did not consider that showing sufficient to require reopening the CAT inquiry. Applying Suate-Orellana v. Barr, it concluded that the Board’s overall materiality assessment had a rational basis.
The supplied opinion calls this relative a nephew in the majority and a cousin in the dissent. That textual inconsistency does not alter the legal dispute over the evidence’s significance.
G. Reconsideration and Forfeiture
Reconsideration addresses identified errors in the prior decision; it is not simply another opportunity to submit the same appellate argument. Under 8 U.S.C. § 1229a(c)(6)(C), the motion must specify errors of law or fact and provide pertinent authority.
Cruz v. Barr, 929 F.3d 304, 308 (5th Cir. 2019), supplied abuse-of-discretion review and supported denial where no qualifying error was shown. Samayoa-Montufar v. Sessions, 724 F. App’x 349, 350 (5th Cir. 2018), quoting Erazo-Aguilar v. Sessions, 719 F. App’x 453, 454 (5th Cir. 2018), explained why repetition of the previous brief or generalized allegations of error are inadequate.
Jaco v. Garland, 24 F.4th 395, 401 n.1 (5th Cir. 2021), supplied the forfeiture rule applied both to the unchallenged asylum and withholding determinations and to the treatment of the news reports. Those underlying issues therefore were not decided anew on their merits.
6. Potential Impact
A. Greater Scope for Reasoned BIA Screening
The decision strengthens the BIA’s ability to deny remand through an explained assessment of documentary reliability. Applicants cannot obtain remand merely by attaching facially relevant new material. They must address both its significance and evident weaknesses.
The limiting principle remains important: the Board may screen evidence, but may not decide disputed historical facts. Future litigation will likely turn on whether a Board decision genuinely evaluates likely evidentiary effect or effectively resolves credibility under the label of materiality.
B. Increased Importance of Connecting General Conditions to Individual Risk
Applicants should explain how country conditions, personal history, threats, and treatment of similarly situated people interact. The majority’s reasoning makes clear that documenting widespread brutality, without adequately connecting it to the applicant’s likely treatment, may not overcome deferential judicial review.
C. Practical Consequences for Documentary Submissions
Where possible, remand submissions should explain when documents were created and obtained, why they were unavailable earlier, apparent inconsistencies, the authors’ knowledge, and available corroboration. Evidence of a persecutor’s mistaken belief should expressly distinguish that belief from the applicant’s actual conduct.
These are practical implications, not new categorical evidentiary prerequisites. The opinion does not require live cross-examination of every declarant or reject all unauthenticated foreign documents.
D. Important Limits on the Decision’s Reach
The court did not decide whether the material-support determinations were correct, whether the disputed materials were properly filed, or whether Zahid’s earlier mistreatment necessarily constituted torture. Nor did it find Afghanistan generally safe. Its holding concerns the sufficiency of this record, the standards of review, and the permissible scope of remand screening.
The authorities cited also carry different institutional weight. Supreme Court and published Fifth Circuit decisions anchor the analysis; other-circuit decisions, administrative precedents, and several unpublished appellate dispositions supply supporting comparisons rather than interchangeable binding rules.