Afghan Man Loses CAT Claim at Fifth Circuit: What It Means
What if you were beaten and detained for protesting the Taliban — but a federal court still ruled you can be deported? That is exactly what happened to Hayatullah Zahid, an Afghan man who worked for his country's Ministry of Education. In October 2026, the Fifth Circuit Court of Appeals denied his petitions for review, upholding the Board of Immigration Appeals' refusal to grant him protection under the Convention Against Torture.
Zahid's case began before the Taliban's return to power in 2021, when he supervised education in Paktia Province. After the Taliban took over, officials pressured him to report on female students and their families — and he complied for several months. An immigration judge (IJ) found that this cooperation amounted to material support for a Tier I terrorist organization, making him ineligible for asylum and withholding of removal. Zahid did not challenge those findings on appeal.
What he did challenge was the denial of Convention Against Torture (CAT) protection — a separate legal shield that applies when someone can show it is more likely than not they would be tortured if returned to their home country. In September 2022, Zahid attended a protest against the Taliban's closure of girls' schools and shared photos and video with outside contacts. Taliban officials then arrested him, held him for seven days, beat and interrogated him, and accused him of working for the United States. He was released after family and community members intervened, and he left Afghanistan permanently in October 2023, entering the US in February 2024.
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The IJ found that Zahid had suffered past persecution for his political opinion about girls' education. But the court drew a sharp line: past persecution does not automatically create a legal presumption of future torture under CAT rules. The Fifth Circuit confirmed in October 2026 that proving torture requires a much higher showing than proving persecution. The BIA reviewed all the evidence Zahid submitted — including alleged Taliban summonses, sworn statements from family members, news reports, and a declaration from his nephew — and still concluded he had not met that higher bar. The Fifth Circuit applied the "substantial evidence" standard of review, meaning it would only reverse if the evidence compelled a different result. It did not.
Why this ruling matters for asylum seekers
This decision reinforces a critical distinction in US immigration law. If you are in removal proceedings and cannot get asylum or withholding of removal — perhaps because of a bar like material support — CAT protection is often the last option. But CAT has its own strict standard. Showing you were persecuted in the past is not enough. You must show that torture — defined as an extreme form of cruel and inhuman treatment — is more likely than not if you are removed. Courts apply the substantial-evidence standard to that determination, which makes it very hard to overturn on appeal.
What to do
- If you are applying for CAT protection, gather specific evidence that torture — not just persecution or mistreatment — is likely if you return. Country-condition reports, expert declarations, and documented threats all matter.
- Do not assume that winning a past-persecution finding automatically helps your CAT claim. Talk to an immigration lawyer about how to build a separate, stronger record for CAT.
- If you have a material-support bar in your case, ask an attorney whether any exceptions apply — and what relief options remain open to you.
- If the BIA has already denied your case, you have a limited window to petition a federal appeals court for review. Missing that deadline ends your options. Consult a lawyer immediately.
What to do, step by step — see our guide “Appealing to the BIA”.
Fishkin Law Firm, New York
The Fifth Circuit's October 2026 ruling is a reminder that CAT is a separate and harder standard than asylum or withholding of removal — past persecution findings do not carry over. If a client has a material-support bar, CAT may be their only path, so the evidentiary record must be built specifically around the likelihood of torture, with country reports, expert testimony, and individualized evidence. Anyone in this situation should consult an immigration attorney before the IJ hearing, not after the BIA has already ruled.
Frequently Asked Questions
What is CAT protection and how is it different from asylum?
CAT stands for Convention Against Torture. It protects people from being sent to a country where they would more likely than not be tortured. Unlike asylum, CAT does not require you to show persecution based on race, religion, nationality, political opinion, or social group. But the standard is higher: you must show that severe torture — not just mistreatment — is likely. CAT also has fewer bars to eligibility, but it does not lead to a green card on its own.
Does being beaten or detained in my home country automatically qualify me for CAT protection?
Not automatically. Courts look at whether what happened to you meets the legal definition of torture — an extreme form of cruel and inhuman treatment — and whether it is more likely than not to happen again if you return. Being beaten or detained can be evidence, but the agency weighs all the facts together. A finding of past persecution does not create a legal presumption of future torture under CAT rules.
What is the material support bar, and can it block all forms of immigration relief?
The material support bar makes someone ineligible for asylum and withholding of removal if they provided support to a designated terrorist organization — even under duress in some cases. It does not automatically block CAT protection, which is why CAT is often the last option for people with this bar. However, CAT has its own strict standard, as this case shows. An immigration attorney can advise whether any exceptions to the material support bar apply in your situation.
What happens after the Fifth Circuit denies a petition for review?
A denial from a federal appeals court like the Fifth Circuit is usually the end of the road in the US court system, unless the Supreme Court agrees to hear the case — which is rare. At that point, removal can proceed. If your situation has changed significantly since your last hearing, a lawyer may be able to file a motion to reopen your case with the immigration court, but strict deadlines and standards apply.