Aihua Chen v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIHUA CHEN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71588
Agency No. A088-355-094
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 18, 2012
Honolulu, Hawaii
Before: REINHARDT, THOMAS, and PAEZ, Circuit Judges.
Aihua Chen, a native and citizen of China, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from
the Immigration Judge’s (“IJ”) denial of his applications for asylum and
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. In light of
FILED
NOV 01 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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our decision in Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010), we grant the
petition and remand for further consideration.
In Jiang, we clarified the role that a spouse’s forced abortion should play in
the agency’s asylum analysis after Matter of J-S, 24 I. & N. Dec. 520 (BIA 2008).
We explained that J-S “stands only for the limited proposition that INA §
101(a)(42) cannot be read to confer ‘automatic or presumptive refugee status’” on
spouses of victims of forced abortions. Jiang, 611 F.3d at 1094 (emphasis in
original). Further, we held that the agency should consider a spouse’s forced
abortion “as ‘proof’ that an applicant resisted a coercive population control policy,
and in analyzing whether persecution occurred as a result.” Id.
Here, the BIA decided Chen’s case without the guidance of Jiang. The BIA
determined that Chen did not engage in “other resistance” to China’s coercive
population control program and that he failed to demonstrate harm rising to the
level of past persecution. In doing so, the BIA failed to consider Chen’s wife’s
forced abortion as proof of Chen’s resistance to the coercive population control
program or of past persecution as Jiang directs. In light of Jiang, we therefore
grant Chen’s petition and remand to the BIA for further consideration of his
applications for asylum and withholding of removal.
Petition GRANTED and REMANDED.

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