In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2790

LIANG CHEN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review from an

 Order of the Board of Immigration Appeals.

No. A98 971 887

ARGUED FEBRUARY 17, 2009—DECIDED AUGUST 19, 2009

Before POSNER, KANNE, and WOOD, Circuit Judges.

WOOD, 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 interpretation 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 approximately 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 automatic 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 involuntary sterilization” is a refugee and thus entitled to

asylum). Chen accordingly based his claims for asylum

and withholding of removal on the forced abortion suffered 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 partner’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 General’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 argument 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 review,’ ” 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 relationship 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 observations 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 personally suffered persecution as a result of China’s population 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 marriage, and thus his case is distinguishable from Jin’s on

that basis. Furthermore, unlike Jin, Chen has not forfeited 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 GRANT his petition for

review and REMAND his case to the Board for further

proceedings consistent with this opinion.

8-19-09