FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BI SONG HUANG,  No. 03-16730

Petitioner-Appellant, D.C. No.

v. CV-03-03079-MJJ 

JOHN ASHCROFT, Attorney General, ORDER AND

Respondent-Appellee. AMENDED

OPINION 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

November 3, 2004—San Francisco, California

Filed December 7, 2004

Amended January 31, 2005

Before: William C. Canby, Jr., Pamela Ann Rymer, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Rymer

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COUNSEL

James Todd Bennett, El Cerrito, California, for the petitionerappellant. 

Edward A. Olsen, Assistant United States Attorney, San Francisco, California, for the respondent-appellee. 

ORDER

The government’s motion for clarification or amendment of

the panel opinion is GRANTED. The opinion filed December

7, 2004, and appearing at 390 F.3d 1118 (9th Cir. 2004), slip

op. 16557, is ordered amended as follows: 

At 390 F.3d 1118, 1121, slip op. at 16562, after the sentence that reads “Withholding entitles the alien to remain

indefinitely in the United States and eventually to apply for

permanent residence; deferral also prevents removal, but confers no lawful or permanent status.” insert a new footnote that

reads: “However, neither withholding nor deferral of removal

prevents the government from removing an alien to a third

country other than the country to which removal was withheld

or deferred. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th

Cir. 2004); see also 8 C.F.R. §§ 208.16(f); 208.22.”

OPINION

RYMER, Circuit Judge: 

This appeal raises the question whether all motions to

reopen proceedings that resulted in a final order of removal

before March 22, 1999 to seek protection under the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are sub1242 HUANG v. ASHCROFT
ject to the time limitation imposed by 8 C.F.R. § 208.18(b)(2)

without regard to the form of protection — withholding of

removal or deferral of removal — to which the alien, if successful, would be entitled. 

Bi Song Huang, a native and citizen of China, was ordered

removed before March 22, 1999, but failed to file a motion to

reopen with the Board of Immigration Appeals (BIA) to present a CAT claim by June 21, 1999, the last date for doing so

under § 208.18(b)(2). He petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, which the district court denied

because Huang had not exhausted administrative remedies.

Huang argues that only applications for withholding of

removal — not for deferral of removal — are encompassed

within the literal language of § 208.18(b)(2) but regardless, he

should not be required to exhaust before seeking habeas relief.

We hold that the time limit in § 208.18(b)(2) applies to all

claims for protection under CAT based on pre-March 22,

1999 removal orders, without regard to the form of relief that

might be granted. We also conclude that exhaustion is

required for CAT claims of this sort, where prudential considerations counsel in favor of administrative review and development of an administrative record. Accordingly, we affirm.

I

Huang’s petition for habeas relief alleges that he was persecuted when he discovered that the factory where he worked

used prison labor in violation of Chinese law and told the

head of the factory, who was a local government official and

whose father was the mayor of Kaiping, about it. He and his

wife decided to leave China; they used his wife’s multipurpose tourist visa to travel to Hong Kong, then to Saipan,

where they stayed for about ten months, and finally to New

York on July 24, 1993. Huang requested political asylum,

which was denied. He was placed in exclusion proceedings,

and on December 13, 1995, an Immigration Judge (IJ) found

Huang to be excludable and ordered deportation. Finding no

HUANG v. ASHCROFT 1243
past persecution or well-founded fear of future persecution,

the BIA dismissed Huang’s appeal on April 8, 1997. The First

Circuit denied his petition for review. 

On February 28, 2003, Huang pled guilty in the United

States District Court for the Northern District of California to

one count of laundering monetary instruments in violation of

18 U.S.C. § 1956(a)(1)(A)(i), and was sentenced to 33 months

imprisonment. Upon completion of his sentence Huang

sought habeas relief on the ground that execution of the final

administrative order of deportation violates Article 3 of CAT.

The district court denied the petition. It reasoned that CAT

claims must be brought before the BIA in a motion to reopen

proceedings, Khourassany v. INS, 208 F.3d 1096, 1099 (9th

Cir. 2000), and that regulations implementing CAT provided

aliens in Huang’s position an opportunity to reopen proceedings for the purpose of seeking protection under CAT so long

as the motion was filed on or before June 21, 1999. Huang

timely appealed. 

II

Huang argues that he could seek only deferral of removal

because his conviction made him ineligible for withholding,

and that the deadline for filing motions to reopen in

§ 208.18(b)(2) applies only to applicants who seek withholding of removal under § 208.16(c). In his view, applications for

deferral of removal under § 208.17(a) are constrained by

§ 1003.2(c)(2)’s ninety-day limitation, if by anything at all.

Thus, he maintains, he was left without an administrative

remedy. 

[1] The United States signed the Convention Against Torture on April 18, 1988, and Congress passed the Foreign

Affairs Reform and Restructuring Act (FARRA) in 1998 to

implement Article 3 of CAT. Pub. L. No. 105-277, Div. G.,

Title XXII, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as

Note to 8 U.S.C. § 1231). Section 2242 of FARRA directed

1244 HUANG v. ASHCROFT
agencies to promulgate regulations implementing CAT, which

the (now former) Immigration & Naturalization Service did in

February 1999. See Regulations Concerning the Convention

Against Torture, 64 Fed. Reg. 8478, 8482-8483 (February 19,

1999) (codified at various parts of 8 C.F.R.); 8 C.F.R.

§§ 208.16-208.18.1

[2] The regulations created a new form of withholding of

removal under § 208.16(c), available only to aliens who are

not barred from eligibility under FARRA for having been

convicted of a “particularly serious crime” or of an aggravated felony for which the term of imprisonment is at least

five years, and another form of protection called “deferral of

removal” under § 208.17(a), for aliens entitled to protection

but subject to mandatory denial of withholding. Withholding

entitles the alien to remain indefinitely in the United States

and eventually to apply for permanent residence; deferral also

prevents removal, but confers no lawful or permanent status.2

Sections 208.16(c) and 208.17(a) are applicable to aliens such

as Huang who are under an order of removal that became

final before March 22, 1999 and who move to reopen proceedings “for the sole purpose of seeking protection under

§ 208.16(c).”3 However, the motion to reopen cannot be

1The regulations have since been renumbered as §§ 1206-08, but we cite

to the regulations as they were as of 1999. 

2However, neither withholding nor deferral of removal prevents the

government from removing an alien to a third country other than the country to which removal was withheld or deferred. See Lanza v. Ashcroft, 389

F.3d 917, 933 (9th Cir. 2004); see also 8 C.F.R. §§ 208.16(f); 208.22. 

3Section 208.18(b) provides in pertinent part: 

(b) Applicability of §§ 208.16(c) and 208.17(a)— 

(1) Aliens in proceedings on or after March 22, 1999. An alien

who is in exclusion, deportation, or removal proceedings on or

after March 22, 1999 may apply for withholding of removal

under § 208.16(c), and, if applicable, may be considered for

deferral of removal under § 208.17(a). 

(2) Aliens who were ordered removed, or whose removal orders

became final, before March 22, 1999. An alien under a final

HUANG v. ASHCROFT 1245
granted unless it is filed by June 21, 1999 and the evidence

establishes a prima facie case that removal must be withheld

or deferred. 8 C.F.R. § 208.18(b)(2)(i) and (ii). 

Huang’s argument turns on the language in § 208.18(b)(2)

that an alien whose removal order became final before March

22, 1999 may move to reopen “for the sole purpose of seeking

protection under § 208.16(c).” 8 C.F.R. § 208.18(b)(2)

(emphasis added). He reasons that § 208.16(c) describes eligibility for withholding of removal under CAT, whereas deferral of removal is treated in § 208.17(a). From this he infers

that the time limit in § 208.18(b)(2) applies to applicants for

withholding but not for deferral. 

We disagree that this is a reasonable reading. An alien

whose removal order became final prior to March 22, 1999

seeks protection under CAT by moving to reopen to seek protection under § 208.16(c) and, if applicable, is considered for

deferral. An alien must first establish that he is entitled to protection before the form of protection becomes relevant. Section 208.16(c) sets out the procedures by which aliens

establish their entitlement to protection; the procedures are the

same no matter whether the form of protection turns out to be

withholding or deferral. If an alien establishes that he is entiorder of deportation, exclusion, or removal that became final

prior to March 22, 1999 may move to reopen proceedings for the

sole purpose of seeking protection under § 208.16(c). Such

motions shall be governed by §§ 3.23 and 3.2 of this chapter,

except that the time and numerical limitations on motions to

reopen shall not apply and the alien shall not be required to demonstrate that the evidence sought to be offered was unavailable

and could not have been discovered or presented at the former

hearing. The motion to reopen shall not be granted unless: 

(i) The motion is filed within June 21, 1999; and 

(ii) The evidence sought to be offered establishes a prima facie

case that the applicant’s removal must be withheld or deferred

under §§ 208.16(c) or 208.17(a). 

. . . 

1246 HUANG v. ASHCROFT
tled to protection, subsection (4) of § 208.16(c) governs the

form: 

Protection under the Convention Against Torture

will be granted either in the form of withholding of

removal or in the form of deferral of removal. An

alien entitled to such protection shall be granted

withholding of removal unless the alien is subject to

mandatory denial of withholding of removal under

paragraphs (d)(2) or (d)(3) of this section. If an alien

entitled to such protection is subject to mandatory

denial of withholding of removal under paragraphs

(d)(2) or (d)(3) of this section, the alien’s removal

shall be deferred under § 208.17(a). 

Section 208.17(a), in turn, makes clear that while deferral is

a separate form of protection, it is not an independent basis

upon which entitlement exists. Instead, as § 208.17(a) indicates on its face, deferral may be granted only after the alien

has shown that he is entitled to protection under § 208.16(c):

An alien who: has been ordered removed; has been

found under § 208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is

subject to the provisions for mandatory denial of

withholding of removal under § 208.16(d)(2) or

(d)(3), shall be granted deferral of removal to the

country where he or she is more likely than not to be

tortured. 

8 C.F.R. § 208.17(a). 

[3] Thus, the window to reopen final orders afforded by

§ 208.18(b)(2) applies to both §§ 208.16(c) and 208.17(a).

Because § 208.18(b)(2) was in the nature of a grace period for

orders long since final, its grace was limited to a motion to

reopen that sought CAT protection under § 208.16(c). Section

208.16(c) is the funnel because that provision contains the

HUANG v. ASHCROFT 1247
procedures for determining eligibility for protection under

CAT, and for deciding the form of protection if entitlement is

established. 

This construction is reinforced by the commentary to the

interim rule set out in §§ 208.16-.18, which emphasizes that

aliens who seek protection under CAT do not separately apply

for deferral. The process is explained as follows: 

Before determining whether the bars described in

section 241(b)(3)(B) of the Act apply to withholding

removal of an alien under the Convention Against

Torture, the immigration judge is required to find

whether the alien is likely to be tortured in the country of removal. Only after this finding is made does

the immigration judge decide, as required by

§ 208.16(d), whether the statutory bars to withholding of removal apply. If the bars do not apply, the

immigration judge will grant withholding of removal

to an alien who has been determined to be likely to

be tortured in the country of removal. If the immigration judge finds that the bars apply, § 208.17(a)

requires the immigration judge to defer removal of

an alien to a country where the alien is likely to be

tortured. The alien need not apply separately for

deferral because this form of protection will be

accorded automatically, based on the withholding

application, to an alien who is barred from withholding but is likely to be tortured in the country of

removal. 

Regulations Concerning the Convention Against Torture, 64

Fed. Reg. at 8481. 

[4] In sum, the window for moving to reopen removal

orders that became final before March 22, 1999 applies to any

alien seeking protection under CAT. So long as he did so in

time, Huang could have moved to reopen to seek protection

1248 HUANG v. ASHCROFT
under CAT regardless of whether deferral or withholding

would have been the form of relief had he established his

right to protection. Accordingly, he had an administrative

remedy. However, he failed to file a motion to reopen by June

21, 1999. Therefore, Huang did not exhaust the available remedies. 

III

[5] Huang argues that he is not required to exhaust because

a motion to reopen is a discretionary remedy. While we agree

that motions to reopen are discretionary and statutory exhaustion requirements apply only to remedies available to an alien

as of right, 8 U.S.C. § 1252(d)(1); Noriega-Lopez v. Ashcroft,

335 F.3d 874, 880-81 (9th Cir. 2003), “we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under

§ 2241.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.

2001). Prudential limits are “ordinarily not optional.” Id. Factors that weigh in favor of requiring exhaustion include

whether “(1) agency expertise makes agency consideration

necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the

deliberate bypass of the administrative scheme; and (3)

administrative review is likely to allow the agency to correct

its own mistakes and to preclude the need for judicial

review.” Noriega-Lopez, 335 F.3d at 881 (quoting Montes v.

Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). Here, all

three are present. 

We have an undeveloped record. The existing administrative record pertains only to Huang’s application for asylum,

but CAT determinations are different. They are fact-specific,

and differ from asylum determinations because an alien who

has been found ineligible for asylum does not necessarily fail

to qualify for relief under CAT. See Kamalthas v. INS, 251

F.3d 1279, 1280, 1283 (9th Cir. 2001). 

HUANG v. ASHCROFT 1249
The BIA has expertise in evaluating torture claims, particularly those arising under CAT, and the responsibility for

ensuring that decisions about Article 3 are uniform and consistent. If need be, it could have remanded for further proceedings before an immigration judge to generate a proper

record. However, Huang bypassed the process. To allow him

to proceed now would subvert the procedure set up to permit

CAT claims by aliens whose removal orders had become final

before March 22, 1999, and would effectively render the filing deadline a nullity. This we should not sanction. We have

previously recognized that a party may not satisfy administrative exhaustion requirements “simply by waiting for the

[applicable filing] period to run and then filing an action in

district court.” Stock West Corp. v. Lujan, 982 F.2d 1389,

1394 (9th Cir. 1993). 

Finally, even though reopening was not available as of

right, we cannot say that filing a motion to reopen would have

been unlikely to preclude the need for judicial review. Unlike

other requests to reopen, for reopening to seek CAT protection Huang needed only to make a prima facie showing that

it was more likely than not that he would be tortured if

removed to China — not that this evidence was newly discovered or could not have been presented at the former hearing.

See 8 C.F.R. § 208.18(b)(2). 

[6] As Huang could have, and should have, exhausted his

claim for CAT protection, habeas corpus is not the only

appropriate means of relief available. We therefore decline to

consider whether he has made out a prima facie case for relief

under CAT. 

AFFIRMED.

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