Reported / Citable
Background
Hayatullah Zahid, an Afghan citizen and former provincial education official, supplied the Taliban with information about female students and their families for several months after its 2021 return to power. In September 2022, he attended a protest against the closure of girls’ schools and shared images of the demonstration outside Afghanistan. Taliban officials then detained him for seven days, beat and interrogated him, and accused him of working for the United States. He remained in Afghanistan for more than a year before leaving permanently and entering the United States in February 2024.
An immigration judge found that Zahid had suffered past persecution based on his political opinion but had not shown that the Taliban would more likely than not torture him if he returned. The judge also found him ineligible for asylum and withholding of removal because he had provided material support to a terrorist organization, a determination Zahid did not challenge. The Board of Immigration Appeals affirmed the denial of Convention Against Torture protection, declined to remand for consideration of new evidence, and later denied reconsideration.
The Court’s Holding
The Fifth Circuit denied both petitions for review. It held that substantial-evidence review applies to the agency’s entire CAT-eligibility determination, including its application of the legal standard to the facts. The court concluded that Zahid’s past persecution did not create a presumption of future torture, that the BIA adequately considered the country-conditions evidence, and that the record did not compel a finding that Zahid personally was more likely than not to be tortured. His prior detention and beating, evidence of abuses against similarly situated people, and theory that the Taliban would view him as an American spy did not compel the opposite conclusion.
The majority also held that the BIA did not abuse its discretion by denying remand. It ruled that the BIA may assess the reliability and probative value of newly submitted evidence when determining whether it is material and likely to change the result, without impermissibly resolving disputed historical facts. The BIA rationally discounted Taliban summonses, statements from family and community members, news reports, and declarations concerning the Taliban’s efforts to locate Zahid. It likewise acted within its discretion in denying reconsideration because Zahid largely repeated arguments the BIA had already rejected.
Judge Southwick dissented from the remand ruling. He concluded that the Taliban summonses and related evidence directly addressed the absence of individualized proof that the Taliban was searching for Zahid. In his view, the BIA crossed from permissible screening into prohibited factfinding when it treated inconsistencies between the summonses and Zahid’s testimony as grounds to discount the evidence rather than remanding for the immigration judge to evaluate it.
Key Takeaways
- A CAT determination—including application of the governing legal standard to the facts—is reviewed for substantial evidence in the Fifth Circuit.
- Past persecution does not create a presumption of future torture; CAT applicants must show that torture is more likely than not.
- When considering a motion to remand, the BIA may screen new evidence for reliability, probative value, and likelihood of changing the outcome, though the dissent viewed the assessment here as impermissible factfinding.
Why It Matters
The decision emphasizes the demanding evidentiary burden for CAT protection. General reports of serious abuses against former officials, activists, or returnees will not necessarily suffice without particularized evidence compelling the conclusion that the applicant personally faces a greater-than-even chance of torture.
The divided ruling also illustrates the disputed boundary between the BIA’s authority to screen new evidence for materiality and the immigration judge’s responsibility to resolve contested facts. The majority permitted the BIA to discount evidence at the remand stage without deciding which account was historically correct, while the dissent would have required remand for factfinding.