Zahid: The CAT Record and New-Evidence Requests Failed Under Different Review Standards

A past-persecution finding did not give the applicant a presumption of future torture, and later evidence did not persuade the Fifth Circuit majority that the Board of Immigration Appeals had to reopen the factual inquiry. In Zahid v. Blanche, Nos. 25-60296 and 25-60524 (5th Cir. Oct. 20, 2026), the court denied petitions challenging the original protection decision and the denial of reconsideration. Judge Southwick dissented from the treatment of the new evidence, explaining why he believed the Board had improperly resolved disputed facts itself.

The published opinion is a Fifth Circuit decision. Its application of the record and its divided remand ruling must be distinguished from controlling law in a California case. The majority appears at pages 1–16 and the dissent at pages 17–21.

The proceedings presented both an existing record and later evidence

Zahid sought protection after the Taliban took control in Afghanistan. He described his former public employment, protest activity, detention and physical abuse. The immigration judge found past persecution, but the Convention Against Torture claim still required proof that he was more likely than not to be tortured upon return. The agency denied protection, and Zahid sought a remand based on additional material offered during the Board appeal. He later sought reconsideration of the Board’s ruling. Zahid, pages 1–3 and 6–9.

The opinion also identifies asylum and statutory-withholding bars that Zahid did not challenge in these petitions. They were not the merits questions the court decided. The live disputes concerned CAT, the Board’s assessment of new evidence and reconsideration. Page 2, footnote 1.

The court separated the agency’s review task from its own

A federal court reviewing CAT factual findings applies substantial-evidence review. The applicant must show that the evidence compels a different result, not simply that another adjudicator could reach one. The Board’s role is different: It reviews the immigration judge’s factual findings for clear error and legal questions under the applicable independent standard. Zahid, pages 3–5.

That distinction mattered twice. First, the court examined whether the agency’s future-risk assessment could stand on the original record. Second, it examined whether the Board permissibly screened new evidence for materiality or instead made historical findings that belonged before the immigration judge. A disagreement about the strength of evidence does not automatically answer either review question.

Past persecution did not shift the CAT burden to the government

The majority rejected Zahid’s effort to carry a past-persecution presumption into CAT. The statutory-withholding regulation expressly provides a presumption following qualifying past persecution. The CAT regulation instead places the burden on the applicant to establish the required likelihood of future torture and requires consideration of all relevant evidence, including evidence of past torture. Zahid, pages 5–6.

Past harm remained relevant. What changed was its legal effect: The government did not have to rebut an automatic CAT presumption merely because past persecution had been found. The majority therefore assessed what the prior treatment and the remaining record showed about prospective risk.

Why the majority found the original record insufficient

The majority considered the detention and abuse alongside the circumstances of release, the period Zahid remained in Afghanistan afterward, his travel history, his former role and the country reports. It concluded that the record did not compel a finding of a more-likely-than-not risk of future torture. Zahid, pages 6–9.

The majority assessed the combined record under deferential review. For a different case, the necessary comparison is how the past incident, subsequent events and current evidence bear on the person’s future risk. Repeating a past-persecution finding does not perform that analysis.

The new evidence exposed the majority–dissent disagreement

A motion to remand based on new evidence must address materiality and prior unavailability under the governing reopening framework. Zahid supplied material including summonses, information about how the Taliban viewed his protest role, and evidence concerning events involving relatives. The Board concluded that the submission did not warrant remand. The majority treated that as permissible threshold evaluation rather than prohibited factual adjudication. Zahid, pages 10–14.

It pointed to problems concerning the summonses’ dates and the claimed leadership role, and accepted the Board’s treatment of statements from interested witnesses not available for cross-examination. Zahid did not challenge the Board’s treatment of the news reports, so the court treated such a challenge as forfeited. Those were the grounds on which this submission failed; merely calling evidence new did not resolve whether it could materially affect the result. Page 14, footnote 46.

Judge Southwick saw a different problem. The new material could show that the Taliban perceived Zahid as a protest leader and had renewed interest in him. Whether he actually had been a leader did not eliminate the risk created by that perception. In the dissent’s view, the Board selected an interpretation of historical events instead of allowing the immigration judge to assess the evidence. The dissent also regarded the new material as responsive to the earlier absence of sufficiently individualized future-risk proof. Zahid, pages 17–21.

The disagreement thus concerned the boundary between screening evidence for significance and deciding what happened. A useful remand argument must identify the proposed fact, explain why it matters to the earlier reason for denial, and show why resolving it requires the fact-finder—not simply accuse the Board of disagreeing with the applicant.

The court left the disputed filing question unresolved

The parties disputed whether declarations accompanying photographs involving a relative had been properly filed. The majority did not resolve that procedural issue because considering them would not change its result. Its discussion should not be described as a finding that the materials were properly submitted. Zahid, page 14, footnote 47.

On reconsideration, Zahid repeated arguments without identifying the necessary factual or legal error in the Board’s prior decision. The majority found no abuse of discretion and denied that petition as well. The disposition was denial of both petitions, with no majority-ordered remand. Pages 15–16.

Keep the future-risk proof and procedural request distinct

For an existing-record challenge, identify the agency’s actual inference and the evidence said to compel a contrary conclusion. For new evidence, separately explain its creation and availability dates, the factual proposition it supports, its connection to the earlier denial and the factual assessment requested on remand. For reconsideration, identify an error in the prior decision rather than relabeling the same disagreement.

Our CAT future-risk guide focuses on the evidentiary significance of past harm. The separate new-evidence guide explains why the procedural stage matters. Neither replaces review of the complete immigration-judge and Board decisions, the filed evidence and the governing circuit’s law.