                 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




                           1239
1242                  HUANG v. ASHCROFT
                         COUNSEL

James Todd Bennett, El Cerrito, California, for the petitioner-
appellant.

Edward A. Olsen, Assistant United States Attorney, San Fran-
cisco, 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 sen-
tence 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 con-
fers 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, Inhu-
man or Degrading Treatment or Punishment (CAT) are sub-
                      HUANG v. ASHCROFT                    1243
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 suc-
cessful, 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 pre-
sent 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 cor-
pus 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 consid-
erations counsel in favor of administrative review and devel-
opment of an administrative record. Accordingly, we affirm.

                               I

  Huang’s petition for habeas relief alleges that he was perse-
cuted 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 multi-
purpose 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
1244                  HUANG v. ASHCROFT
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 proceed-
ings 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 withhold-
ing 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 Tor-
ture 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
                          HUANG v. ASHCROFT                         1245
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 aggra-
vated 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 pro-
ceedings “for the sole purpose of seeking protection under
§ 208.16(c).”3 However, the motion to reopen cannot be
  1
     The regulations have since been renumbered as §§ 1206-08, but we cite
to the regulations as they were as of 1999.
   2
     However, neither withholding nor deferral of removal prevents the
government from removing an alien to a third country other than the coun-
try 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.
   3
     Section 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
1246                     HUANG v. ASHCROFT
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 eligi-
bility for withholding of removal under CAT, whereas defer-
ral 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 pro-
tection under § 208.16(c) and, if applicable, is considered for
deferral. An alien must first establish that he is entitled to pro-
tection before the form of protection becomes relevant. Sec-
tion 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 enti-

    order 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 dem-
    onstrate 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).
    ...
                        HUANG v. ASHCROFT                      1247
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) indi-
cates 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 protec-
    tion 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
1248                 HUANG v. ASHCROFT
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 coun-
    try of removal. Only after this finding is made does
    the immigration judge decide, as required by
    § 208.16(d), whether the statutory bars to withhold-
    ing 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 immi-
    gration 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 withhold-
    ing 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
                      HUANG v. ASHCROFT                    1249
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 rem-
edies.

                              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 exhaus-
tion 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 pru-
dential matter, that habeas petitioners exhaust available judi-
cial 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. Fac-
tors 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 deci-
sion; (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 administra-
tive 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).
1250                  HUANG v. ASHCROFT
   The BIA has expertise in evaluating torture claims, particu-
larly those arising under CAT, and the responsibility for
ensuring that decisions about Article 3 are uniform and con-
sistent. If need be, it could have remanded for further pro-
ceedings 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 fil-
ing deadline a nullity. This we should not sanction. We have
previously recognized that a party may not satisfy administra-
tive 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 protec-
tion 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 discov-
ered 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.
