Bi Song Huang v. John Ashcroft, Attorney General

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 subject 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)…