In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2790
L IANG C HEN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review from an
Order of the Board of Immigration Appeals.
No. A98 971 887
A RGUED F EBRUARY 17, 2009—D ECIDED A UGUST 19, 2009
Before P OSNER, K ANNE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Liang Chen is a citizen of China
and an applicant for asylum. He also has been, up until
now, a victim of bad timing. After Chen presented a
claim for asylum based on his wife’s involuntary abortion,
the Attorney General changed the government’s inter-
pretation of the relevant statute so that a spouse no
longer qualifies as a refugee because his partner suffered
2 No. 08-2790
an involuntary abortion. See Matter of J–S–, 24 I. & N. Dec.
520, 523-24 (AG 2008). Based on this change of law, the
Board of Immigration Appeals (“BIA”) dismissed Chen’s
appeal because, it said, Chen presented no evidence of
other persecution or resistance to China’s coercive family
planning policy. After the oral argument in this case, a
different panel of the court followed Matter of J–S– and
denied a petition for review in a case with similar—though
not identical—facts. See Jin v. Holder, 572 F.3d 392 (7th
Cir. 2009).
We see two critical differences between Jin and the
present case, as we explain below. Without commenting
on the merits of Chen’s claim, we conclude that he did not
have the opportunity for a fair hearing. Accordingly,
we grant Chen’s petition for review, vacate the BIA’s
decision, and remand for further proceedings.
Chen was born in Lianjiang County in Fujian Province,
China, in November 1972. His county is one of thirteen
administrative divisions of Fuzhou, the capital city
of Fujian Province. In April 1996, when he was approxi-
mately 24 years old, he married Ye Duan Juan, a woman
who was employed by the Chinese Communist Party’s
Xiaoao Township Committee. As required by China’s
family planning policy, his wife had an IUD inserted after
his son’s birth. She regularly went to the local family
planning office for mandatory gynecological exams. Chen
alleges that during one such exam, in May 1999, the
officials discovered that the IUD was missing and that
Chen’s wife was pregnant. Chen asserts that he and
his wife wanted the child, but that the office forced his
wife to abort her pregnancy that day.
No. 08-2790 3
Five years later, in June 2004, Chen left China and
illegally entered the United States in July. In June 2005
he applied for asylum, withholding of removal, and
protection under the Convention Against Torture. At
the time he applied for asylum, the BIA conferred auto-
matic refugee status on the spouse of a person forced to
abort a pregnancy (as well as on the person suffering
the forced abortion). See Matter of C–Y–Z–, 21 I. & N.
Dec. 915 (BIA 1997) (en banc); Matter of S–L–L–, 24 I. & N.
Dec. 1 (BIA 2006); 8 U.S.C. § 1101(a)(42)(B) (“a person who
has been forced to abort a pregnancy or to undergo in-
voluntary sterilization” is a refugee and thus entitled to
asylum). Chen accordingly based his claims for asylum
and withholding of removal on the forced abortion suf-
fered by his wife. He presented evidence to support his
claim, including his testimony, his wife’s statement, and
several documents.
The Immigration Judge (“IJ”), however, found that
Chen had not presented a credible story and denied his
application. Chen appealed to the BIA on March 13, 2007.
A year passed, and then the proverbial rug was pulled
out from under Chen’s feet. In May 2008, Attorney
General Mukasey reversed the BIA’s interpretation of
§ 1101(a)(42)(B). He concluded that a spouse was not
entitled to automatic refugee status because of the part-
ner’s forced abortion. Matter of J–S–, 24 I. & N. Dec. 520
(AG 2008); see also Jin, 572 F.3d at [sl. op. 7](explaining the
background of Matter of J–S–). Under the Attorney Gen-
eral’s new position, the spouse must instead prove that
he suffered persecution or has a well-founded fear of
persecution because of his own resistance to China’s
4 No. 08-2790
coercive population control program. See id.;
§ 1101(a)(42)(B). We have held that the Attorney General
acted within his authority when he made this change. See
Jin v. Holder, supra; see also Yu v. U.S. Att’y Gen., 568 F.3d
1328 (11th Cir. 2009); Lin-Zheng v. U.S. Att’y Gen., 557 F.3d
147, 156-57 (3d Cir. 2009) (en banc).
Following Matter of J–S–, the BIA dismissed Chen’s
appeal. Because the BIA issued its own opinion, we
limit our review to its opinion. See Zheng v. Gonzalez, 409
F.3d 804, 809 (7th Cir. 2005). Importantly, the Board
explicitly noted that it was not adopting the IJ’s credibility
determination. Instead, it assumed for the sake of argu-
ment that Chen’s wife was forced to undergo an abortion.
After noting that Chen no longer qualified as a refugee
because of his wife’s forced abortion, the BIA examined
the record for evidence of other persecution or of
resistence by Chen to the family planning program. It
found no such evidence. Instead, the BIA focused on the
fact that Chen lived in China for five years after the
abortion. It dismissed Chen’s appeal for lack of evidence.
But the BIA never acknowledged the fact that Chen had
no reason to put evidence of other persecution into the
record at the time he filed his application, because the
law then was clear that he needed only to prove his
wife’s forced abortion. The same was true at the time of
his hearing and his appeal. It is unusual for the Board to
confer automatic refugee status based on only one fact,
but that was the state of the law in this special setting. It
is therefore more understandable than it ordinarily
would be that Chen saw no reason to fill his application
No. 08-2790 5
with additional facts justifying asylum on alternative
grounds.
This is the first time that Chen has had the opportunity
to respond to the government’s critical shift in position.
Chen has a statutory right to “a reasonable opportunity
to examine the evidence against [him], to present evidence
on [his] own behalf, and to cross-examine witnesses
presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B);
see also Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003) (per
curiam) (“In the context of political asylum, due process
requires, among other things, that an applicant receive
‘a meaningful opportunity to be heard.’ ”) (citing Nazarova
v. INS, 171 F.3d 478, 482 (7th Cir. 1999)). In our view,
because of the way the proceedings unfolded in Chen’s
case, he has been deprived of that statutory opportunity.
See generally United States v. Johnson, 457 U.S. 537, 543
(1982) (noting that “the common-law rule, recognized
in both civil and criminal litigation, [is] ‘that a change
in law will be given effect while a case is on direct re-
view,’ ” quoting Linkletter v. Walker, 381 U.S. 618, 627 (1965),
which in turn cites United States v. Schooner Peggy, 1
Cranch 103 (1801)).
The only question that remains is whether our decision
in Jin precludes relief for Chen. The petitioner in Jin, like
Chen, was seeking asylum and withholding of removal
based on a forced abortion. In Jin, however, his rela-
tionship to the woman who suffered the abortion was
unclear. At various points in the record Jin described her
as “his ‘girlfriend,’ his ‘fiancée’ and also his ‘wife.’ ” 572
F.3d at [sl. op. 2]. The IJ denied his petition, finding first
6 No. 08-2790
that “Jin was not actually married to Lin.” Id. at [sl. op. 3].
In addition, the IJ found that “Jin had not shown that
underage husbands of pregnant wives suffer persecution
because of China’s family planning policy.” Id. The BIA
affirmed both those findings. In denying the petition for
review, this court found that “there was a fair amount
of record evidence that [Jin] and Lin were not actually
married.” Id. at [sl. op. 5]. Only after making those ob-
servations did the court go on to recognize the rule
in Matter of J–S– and to comment that a remand would
be futile because Jin presented no evidence that he per-
sonally suffered persecution as a result of China’s popula-
tion control policies. But it appears that Jin did not
make the procedural point that Chen has made before
this panel. Instead, he contented himself with a frontal
attack on Matter of J–S–, and we rejected that argument
on the merits.
There is no cloud at all over the status of Chen’s mar-
riage, and thus his case is distinguishable from Jin’s on
that basis. Furthermore, unlike Jin, Chen has not for-
feited the procedural opportunity to attempt to meet the
new legal standards for asylum. We conclude that he is
entitled to that chance. Because the BIA dismissed Chen’s
claim based on the lack of evidence that he never knew
he was supposed to gather, we G RANT his petition for
review and R EMAND his case to the Board for further
proceedings consistent with this opinion.
8-19-09