Miljkovic, Dragan v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3646
DRAGAN MILJKOVIC,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 70 674 796.
____________
SUBMITTED MARCH 25, 2004—DECIDED MAY 3, 2004
____________
Before POSNER, RIPPLE, and DIANE P. WOOD, Circuit Judges.
POSNER, Circuit Judge. Dragan Miljkovic has filed a peti-
tion, which is pending and awaiting argument in this court,
to review an order of removal (deportation) premised on the
denial of his application for asylum. Before us is his motion
to add the name of his wife Divna to the petition for review,
as an additional petitioner. Her name was left off as a result
of inadvertence by the Miljkovics’ lawyer.
The purpose of the motion is neither obvious nor ex-
plained. Divna Miljkovic’s quest for asylum is entirely
derivative from her husband’s, being based solely on 8
U.S.C. § 1158(b)(3)(A), which provides that “a spouse or
2 No. 03-3646
child . . . of an alien who is granted asylum . . . may, if not
otherwise eligible for asylum . . ., be granted the same status
as the alien if accompanying, or following to join, such
alien.” If Mr. Miljkovic is granted asylum, Mrs. Miljkovic
will (in all likelihood—a qualification explained later) be
granted asylum as well, and if he is denied asylum, then (no
qualification necessary here) she will be denied asylum.
Galina v. INS, 213 F.3d 955, 957 (7th Cir. 2000); cf. Ochave v.
INS, 254 F.3d 859, 864 (9th Cir. 2001). And so the question
arises: what purpose would be served by adding her name
to the petition for review? In his motion Mr. Miljkovic says
only that his wife is under an “order of supervision” but
drops no hint as to how or why that order might be altered
by the addition of her name to the petition for review.
Because we have already denied a motion for a stay of the
removal order, it is not as if adding her name to the petition
would somehow enable her to piggyback on a stay granted
to him.
The government in its opposition to the motion to add her
name states without elaboration that “to now include her in
the appeal as a party would be prejudicial to respondent
and to the economy of judicial proceedings.” We can’t
understand either of the government’s points. If Mrs.
Miljkovic’s status is derivative from her husband’s, how is
the government “prejudiced” by the addition of her name
to the petition for review? And procedural economy would
actually be disserved if by ordering that her husband but
not her be given asylum we forced her to file a separate ap-
plication, based on derivative status, in order to be allowed
to remain in the United States. 8 C.F.R. § 208.21(c). That
would add another layer of paperwork with no benefit to
anyone because the government does not suggest that it
would have any ground for denying the application.
Although Mrs. Miljkovic’s lawyer points to no concrete
advantages that she might derive from the granting of the
No. 03-3646 3
motion to add her to the petition for review, we can see
some. They are slight, but there is nothing on the other
side—nothing, that is, to show prejudice to the government.
Although a grant of asylum to Mr. Miljkovic would entitle
his wife to asylum too, under the law now in force, there is
a difference between a judgment that commands the
immigration service to grant you asylum and even a
compelling argument to be made in a separate application
later, if only because rights conferred by final judgments are
good against a subsequent change in the law. Plaut
v. Spendthrift Farm, Inc., 514 U.S. 211, 225-26 (1995). What is
more, the government might have grounds for opposing the
separate application, even under the existing regulations,
because the grant of derivative status to the spouse of a
successful applicant for asylum is not automatic but re-
quires an exercise of discretion by the immigration author-
ities. See 8 C.F.R. § 208.21(a); Bucur v. INS, 109 F.3d 399, 402-
03 (7th Cir. 1997). So Mrs. Miljkovic does have something to
gain from the addition of her name to her husband’s
petition for review.
In Bace v. Ashcroft, 352 F.3d 1133, 1137 (7th Cir. 2003), over
the government’s objection we deemed the spouse’s applica-
tion for asylum, governed as in this case by 8 U.S.C.
§ 1158(b)(3)(A), properly before us even though his name
was not on the petition for review. The omission was even
more obviously inadvertent than in the present case. It was
Mr. Bace who claimed to have been persecuted. Mrs. Bace
was seeking asylum merely by virtue of her spousal status,
so the fact that she was named in the petition for review
rather than he was a patent oversight. The only rule we
cited in support of our deciding to overlook the oversight,
however, was Rule 3 of the Federal Rules of Appellate
Procedure. That rule governs the procedure for appealing
from orders by district courts and counsels lenity in deter-
mining the proper parties to such an appeal: “An appeal
4 No. 03-3646
must not be dismissed . . . for failure to name a party whose
intent to appeal is otherwise clear from the notice” of
appeal. Fed. R. App. 3(c)(4). But it is Rule 15 of the appellate
rules, not Rule 3, that governs petitions for review of
administrative decisions, and it contains no corresponding
language. On the contrary, it says that the petition for
review must “name each party seeking review either in the
caption or the body of the petition—using such terms as ‘et
al.,’ ‘petitioners,’ or ‘respondents’ does not effectively name
the parties.” Fed. R. App. P. 15(a)(2)(A). Bace did not cite
Rule 15(a)(2)(A). It did cite Tsevegmid v. Ashcroft, 336 F.2d
1231, 1233 n. 2 (10th Cir. 2003), a similar case, but again one
that had not grappled with the language and background of
Rule 15(a)(2)(A).
The two rules used to be similar. But after and in response
(see Advisory Committee’s Note to Fed. R. App. P. 3) to
the Supreme Court’s ruling in Torres v. Oakland Scavenger
Co., 487 U.S. 312 (1988), that the failure of a notice of appeal
to name all the appellants individually deprives the appel-
late court of jurisdiction over any unnamed appellants, both
rules—Rule 3, the rule involved in the Torres case, and Rule
15—were amended in 1993 to their present form. The
Advisory Committee’s Note to Rule 15 remarks the gap that
the amendments opened between the two rules and points
out that the amended Rule 15 lacks the flexibility of the
amended Rule 3 because it requires that “each petitioner
must be named. A petition for review of an agency decision
is the first filing in any court and, therefore, is analogous to
a complaint in which all parties must be named.” Elkins
Carmen v. Surface Transportation Board, 170 F.3d 1144 (D.C.
Cir. 1999) (per curiam), not cited in Bace, pointed to the gap
between the two rules and ruled that failure to name a party
in the petition for review deprives the court of jurisdiction
to grant the unnamed applicant any relief—a conclusion
that seems compelled by the wording and history of the
No. 03-3646 5
amended rules. Mrs. Miljkovic could have moved to
intervene in her husband’s review proceeding, but she
would have had to file her motion within 30 days of the
filing of his petition for review, Fed. R. App. P. 15(d), and
she missed the deadline.
Rule 15 is applicable to administrative proceedings in
general, and there is no indication that anyone involved in
the drafting and promulgation of the rule was aware of its
potential application to the unusual situation of claims to
derivative status in asylum cases, a pretty esoteric corner of
administrative law. (Elkins did not involve asylum, or
indeed immigration.) Nevertheless, we have no authority to
create an exception to a clearly worded jurisdictional rule.
The rule is explicit that to become a party to a proceeding in
a federal court of appeals to review administrative action,
you must be named in the petition for review or move to
intervene within 30 days after the filing of the petition for
review.
This is not, however, the proper case in which to reex-
amine Bace. We noted earlier the difference between having
a judgment in hand and having merely a right to file an
application that under existing law almost certainly would
be granted. Mrs. Miljkovic, however, was named in her
husband’s application for asylum, and as a result she does
not have to file a separate application for asylum later if
his application is granted. 8 C.F.R. § 208.21(c). To put this
differently, because the application was joint, if we order
it granted this will automatically entitle Mrs. Miljkovic to
asylum. In these circumstances, to name her in the petition
is not to add a party without complying with the strictures
of Rule 15(a)(2)(A). It is merely to recognize that by virtue
of the jointness of the application for asylum, she is a party
in the sense that she has the identical legal and practical
stake as her husband. In these circumstances, adding her
6 No. 03-3646
name to the petition is in the nature of the correction of a
clerical error. Cf. Fed. R. Civ. P. 60(a).
We emphasize the narrowness of our holding, which
pivots on the fact that the spouse seeking derivative status
was actually named in her spouse’s application for asylum.
Whether the broader implications of Bace should invite a
reconsideration of that decision in the light of the text and
history of Rule 15 and the Elkins decision is an issue for
another day.
MOTION GRANTED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-04