Changed-Country-Conditions Reopening Requires Post–First-Motion Material Change and CAT Requires Particularized, Aggregated Risk Evidence

1. Introduction

Case: Harmez v. Blanche (10th Cir. Aug. 26, 2026) (Order and Judgment).
Parties: Morees Murqus Harmez (petitioner) vs. Todd Blanche, U.S. Attorney General (respondent).
Posture: Petition for review of the Board of Immigration Appeals’ (“BIA”) denial of Harmez’s fifth motion to reopen removal proceedings to pursue protection under the Convention Against Torture (“CAT”).

Harmez, an Iraqi Christian and lawful permanent resident, was ordered removed after a Utah drug felony conviction and after declining the immigration judge’s offer of a continuance to develop a CAT claim in 2016. Over the ensuing years he filed multiple motions to reopen. The central issues on this petition were whether he presented new, material evidence of changed country conditions in Iraq sufficient to excuse the strict time-and-number limits on reopening, and whether his evidence established prima facie eligibility for CAT relief.

2. Summary of the Opinion

The Tenth Circuit denied the petition for review. It held that the BIA did not abuse its discretion in concluding that:

  • Harmez failed to show a material change in Iraqi country conditions after his earlier reopening litigation; his evidence largely demonstrated a continuation of long-standing harms against Christians and “Americanized” Iraqis.
  • Harmez failed to establish a prima facie CAT claim because the record did not show a reasonable likelihood that he, in particular, would face torture with the requisite intent and governmental involvement/acquiescence.
  • The BIA did not wrongly refuse to consider “aggregate” risk; it cited Matter of J- R-G-P-, which endorses aggregation of torture risk from multiple sources.

3. Analysis

A. Precedents Cited

  • Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (quoting Gurung v. Ashcroft, 371 F.3d 718 (10th Cir. 2004))
    Role: Provided the governing abuse-of-discretion standard for reviewing denial of motions to reopen and described what constitutes an abuse (no rational explanation, departure from policy, conclusory reasoning).
  • Qiu v. Sessions, 870 F.3d 1200 (10th Cir. 2017) (quoting Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004))
    Role: Reinforced that abuse of discretion includes legal error or unsupported factual findings (i.e., lack of substantial evidence).
  • Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) (quoting INS v. Abudu, 485 U.S. 94 (1988))
    Role: Emphasized the “heavy burden” on a movant to reopen because reopening is disfavored and implicates the public interest in the finality of removal orders.
  • Harmez v. Garland, 2023 WL 2706678 (10th Cir. Mar. 30, 2023) (unpublished)
    Role: The panel relied on its prior case involving the same petitioner to reject arguments about the baseline comparison to the 2016 merits hearing, noting he had declined a continuance to develop CAT evidence. It also reaffirmed that evidence of continuing mistreatment does not necessarily show a significant worsening relative to earlier periods.
  • Zakariya v. Bondi, 2025 WL 1672370 (6th Cir. June 13, 2025) (unpublished)
    Role: Used as persuasive support that Dr. Tareq A. Ramadan’s declaration can describe “continued issues” for Iraqi Christians without explaining how conditions changed—undercutting a “material change” claim.
  • In re J-E-, 23 I. & N. Dec. 291 (B.I.A. 2002) (en banc), overruled on other grounds by Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004)
    Role: Supplied the CAT principle that generalized evidence of human-rights abuses is relevant but insufficient; the applicant must show specific grounds indicating the individual would be personally at risk of torture.
  • Abdulahad v. Garland, 99 F.4th 275 (6th Cir. 2024)
    Role: Petitioner urged adoption of an “aggregate rule” and a skepticism toward categorical rejection of changed-conditions claims where persecution is longstanding. The Tenth Circuit distinguished it, holding the BIA here did not apply a per se bar and, in any event, the court did not need to decide whether to adopt Abdulahad’s approach.
  • Matter of J- R-G-P-, 27 I. & N. 482 (BIA 2018)
    Role: The court cited it to rebut the claim that the BIA refused aggregation; J- R-G-P- endorses considering torture risk in the aggregate rather than as separate, divisible theories.

B. Legal Reasoning

  1. Reopening framework and the “material change” gatekeeping function
    The court applied the statutory structure: a noncitizen generally has one motion to reopen and must file within 90 days, but the deadline can be excused for CAT-related reopening where the movant offers material, previously unavailable evidence of changed country conditions. The court treated “material change” as a threshold requirement: absent such a showing, the motion remains procedurally barred.
  2. Baseline for comparison: post–first-motion change (and petitioner’s 2016 continuance refusal)
    A key move in the opinion is the comparison point. The BIA compared the fifth motion’s evidence to the evidence submitted with the first motion to reopen (2017). The court approved this approach and also rejected petitioner’s complaint about comparison to 2016 hearing evidence because he had been offered a continuance in 2016 to develop a CAT claim and declined—undermining any argument that the agency should be faulted for not building a fuller 2016 evidentiary record.
  3. Continuation vs. change
    The court agreed with the BIA that the new materials (including the House Resolution, Dr. Ramadan’s declaration, and an Institute for the Study of War article on the PMF) largely describe ongoing, long-term persecution and anti-American sentiment rather than a qualitative worsening after 2017. The opinion underscores that proof that conditions are “bad” is not enough; the evidence must show they became materially different in the relevant period.
  4. PMF as a “new state actor” argument rejected on the record
    Petitioner argued the Popular Mobilization Forces (“PMF”) newly emerged as a state actor after 2017. The court found the record contradicted that: the 2016 Department of State report already described the PMF as state-sponsored under Iraqi command-and-control. Likewise, the alleged abuses (killing, torture, kidnapping, extortion, arbitrary arrests/detentions) were described both earlier and in the new materials—again indicating continuity.
  5. CAT: individualized likelihood and intent, not only generalized atrocities
    Applying the CAT standard (“more likely than not” to be tortured), the court emphasized that generalized evidence of gross violations does not establish that this applicant faces a particularized risk. The BIA’s statement—that the evidence did not show a reasonable likelihood anyone would specifically intend to inflict severe pain or suffering on Harmez—was treated as a permissible, adequately explained conclusion supported by substantial evidence.
  6. Aggregation
    The court declined to decide whether to adopt the Sixth Circuit’s “aggregate rule” framing from Abdulahad v. Garland, finding it unnecessary because the BIA cited Matter of J- R-G-P- and nothing suggested it artificially split petitioner’s “Christian” and “Americanized” identities into separate, non-aggregated claims.

C. Impact

  • Higher practical hurdle for serial reopening: The decision reinforces that, for successive motions, evidence must show a material change after the last relevant evidentiary snapshot (here, 2017) rather than re-describing enduring persecution.
  • Record discipline for CAT reopening: Applicants relying on country reports and expert declarations should connect generalized conditions to a particularized risk narrative (who is likely to target the applicant, why, where, by what means, and how government involvement/acquiescence is likely).
  • Aggregation arguments in the Tenth Circuit: While not definitively adopting a Sixth Circuit formulation, the opinion signals that citing Matter of J- R-G-P- and treating identities/risks holistically can insulate BIA decisions from “failure to aggregate” challenges.
  • Strategic consequence of declining continuances: The court’s reliance on petitioner’s refusal of a 2016 continuance highlights that choices made at the merits stage can constrain later arguments about what the agency should have considered as the baseline record.

4. Complex Concepts Simplified

Motion to reopen
A request to restart immigration proceedings after a final removal order, typically limited to one motion filed within 90 days, unless an exception applies.
Changed country conditions (material change)
Not simply proof that a country is dangerous; it requires evidence that conditions have meaningfully shifted (worsened or otherwise materially changed) since the relevant prior point in time, and that the new evidence was previously unavailable.
Prima facie eligibility (CAT)
Enough evidence to show a reasonable likelihood of meeting the CAT standard if the case were reopened—more than speculation, less than final proof.
CAT “more likely than not”
A greater-than-50% likelihood that the individual would be tortured if removed.
Particularized risk
Evidence that the applicant personally is likely to be targeted—general violence or widespread abuses alone are usually insufficient.
Aggregate risk
Considering the combined risk from all feared sources and reasons together, rather than splitting them into separate, weaker-looking claims.

5. Conclusion

Harmez v. Blanche affirms a stringent approach to untimely and successive motions to reopen: to pass through the changed-country-conditions exception, the applicant must show a material post-baseline change, not merely persistent persecution described in updated sources. The decision also reinforces a core CAT principle: generalized evidence of human-rights abuses, even severe and ongoing, must be tied to a particularized likelihood that the applicant himself will be tortured. Finally, the court’s treatment of aggregation suggests that where the BIA relies on Matter of J- R-G-P- and does not fragment an applicant’s identities, “failure to aggregate” challenges will face an uphill climb in the Tenth Circuit.