r section two zero two zero eight point eight point seventeen the under circumstances where there's a final order administrative order of removed will which was a pre only relief that mr wang would have kwan would have been possibly eligible for would have been a deferral under the convention against torture under the structure of the regulations that act and implement the article three of the convention against torture not eligible for withholding on the face of this conviction and on the face of the regulations well assuming that's correct and the structure of the statute seems to me very clearly says you need to apply for withholding and if you're not eligible for that but you are in title to protection under the convention then all is mandatory true but the way the structure two different forms of relief of it carved out sure and the concerns in carving those fractures out was first to create a withholding claim under the convention which did not run afoul of the withholding provisions of the immigration nationality act that is in a separate section and that is lead if you're correct that he's not entitled to it and he has and what he's entitled protection he's going to get it for all well the language of the part of the implementing regulations and i think the key provision only for the purposes of either the amended regulation which was subsequently amended the following year only you may only make this motion reopen puts suddenly for the purpose of pursuing a withholding  with its benefits then it's mandatory you shall get her all which has somewhat fewer benefits well not just fewer benefits but also more stringent  should there be change of country conditions or not it's a it's certainly a different form of relief in terms of the what the benefits that you receive i think that if you do not have a in this case m the convention of torture until after all administrative remedies have been exhausted in other words the position of mr wang's and at this point and i think the same sort of remedy is at least implicit in the regulation here in really different parameters as to the consequences and the rights and duties  whatsoever think in this particular case since it is a discretionary form of relief even under the regulation it says to me it's a discretionary form of relief i think that takes him outside of the exhaustion requirement the court edward olson from the u s attorney's office on behalf of the respondent john ashcroft the district court properly denied behavior addition in this case because the alien failed to follow the proper procedure that set out in the convention against torture regulations specifically he failed to file a motion to reopen to seek relief under the regulations provide that where as was the case here in a earlier and removal order became that deadline and in fact didn't file a motion to reopen at all and in the opening brief has been provided an explanation for the failure to follow that procedure pretty even if your position and that even if it were still timeline and he couldn't bring the heaviest for tuition now i mean he couldn't bring a hideous position before that one thousand nine hundred ninety got off without first exhausting your present that is my position now although i wasn't as opposed to deferral of removal but there's absolutely no support for that distinction in the regulation itself there's also no support for that distinction in the comments to the regulation and as a matter of policy it reopen if it's true that aliens who are only seeking the relief of deferral of removal don't have to comply with that human twenty second one thousand nine hundred dead line it effectively rewards them for following within one of the statutory bars to reimer was making that an alien filed a single claim for relief under cat now the relief that you may get varies depending on whether or not you've been convicted of a particular serious crime or you've persecuted other a withholding of removal or approach of removal so it wouldn't make any sense for the language after the deadline to refer to both kinds of relief if the deadline only applied to those seeking withholding  also includes the case where you no longer have the ability to exhaust because for one reason or another you didn't follow the procedure by the deadline now that's not to say that an alien can't file a motion to reopen with would be a saying to the the claim that dealing with going to be subjected to torture was first raised in two thousand and one when the alien was picked up for some criminal offenses now at that point the alien had not been convicted of any aggravated felony so the idea that from the very beginning this person was only eligible for deferral of removal is simply not accurate at that point in time in two thousand and one the person adoption convicted of any crimes you know  thousand and three after the criminal proceedings went forward ultimately yes the yelling was convicted of aggravated felony felony and may or may not be eligible for withholding of removal but i did want to to correct that that point and finally i should say that to the extent that the alien is relying on noriega lopez saying in all situations you don't have to exhaust occasionally you can bring a petition for  even though you haven't exhausted the case there's no application here that case it was a strictly legal issue the alien was saying the b i a doesn't have the authority to enter a removal order what the b i have to do is remand to the hygiene for the idea to enter that because the motion to reopen is discretionary and b i doesn't have to reopen it's a purely legal question and there's no concern here that the alien deliberately bypassed the side ministry to scheme in this case by contrast this is not a purely legal issue the question is whether or not the alien has established that it's more likely than not that he will be tortured upon his return to china that's not a purely legal question it's also obviously not the case that the alien didn't deliberately bypass the administrative procedure the alien knew as early as two thousand and one that he had this potential cast claim and then didn't do anything until two thousand and three days before he was scheduled to be regulations say well we should give these people who have already been removed but for one reason or another still in the country a brief window of time to make use of these regulations and then his conviction came after the deadline for motions to re it's clear that the be used for the treatment however you want to characterize it in this case that dealing with subjects if you simply doesn't rise to the level of torture torture is an extreme form of cruel and inhuman punishment  rise to that level results open no presentation of why he would continue to be subject of this treatment when he's returned to china thirteen years after this alleged abuse occurred in this factory that he worked and there's no reason why he'd have to go back to that factory or back to that same city and there's absolutely no reason and in my view looking at the record to conclude that the torture that he was allegedly subjected to came at the hands of the government official the only connection that i can see is that the factory boss which directed others to steal his motorcycle and a game of bloody nose and they revoked his household registration and instigated his incarceration for forty eight hours his father at some unspecified time was the mayor of the city that's the only connection i can see to the torture being at the hands of a government official which the regulations clearly require an just briefly your honors first of all the when the petition was filed he was an aggravated problem that is i mean at the at the point of the filing he had been convicted that conviction came first and then the petition was filed in terms of criminology declarations he was forced to work in the enterprise threatened with harm if he quit told he had to keep working even though he knew there was slave labor being involved in the production of these jeans with this joint enterprise with the hong kong company  terms of psychological pressure and at the declaration clearly shows that the man suffering from psychological harm from having to continue to participate in this enterprise which he is attempting to blow the whistle on secondly acquiescence from the police officers saying there's nothing we