Miljkovic v. Ashcroft
| Decision Date | 03 May 2004 |
| Docket Number | No. 03-3646.,03-3646. |
| Citation | 366 F.3d 580 |
| Parties | Dragan MILJKOVIC, Petitioner, v. John D. ASHCROFT, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Godfrey Y. Muwonge (submitted), Milwaukee, WI, Larry J. Hagen, Oak Park, IL, for Petitioner.
George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, William K. Olivier, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before POSNER, RIPPLE, and DIANE P. WOOD, Circuit Judges.
Dragan Miljkovic has filed a petition, 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 explained. 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 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 she be given asylum we forced her to file a separate application, 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 motion to add her to the petition for review, we can imagine 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, 115 S.Ct. 1447, 131 L.Ed.2d 328 (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 requires an exercise of discretion by the immigration authorities. 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 application 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 determining the proper parties to such an appeal: "An appeal 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.3d 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...
To continue reading
Request your trial
-
Hegna v. Islamic Revolutionary Guard Corps
...to subsequent legislative changes,” QUALCOMM Inc. v. FCC, 181 F.3d 1370, 1380 n. 7 (D.C.Cir.1999); accord Miljkovic v. Ashcroft, 366 F.3d 580, 582 (7th Cir.2004) (Posner, J.) (stating that “rights conferred by final judgments are good against a subsequent change in the law”) (citing Plaut, ......
-
Okpoko v. Heinauer
...v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972)) (second alteration in original); see also Miljkovic v. Ashcroft, 366 F.3d 580, 582 (7th Cir.2004) (“the grant of derivative status to the spouse of a successful applicant for asylum is not automatic but requires an exercise......
-
Saad v. United States Dep't of Homeland Sec.
...95 Fed. Appx. 298, 301 (10th Cir. 2004) ("[d]erivative asylum under § 1158(b)(3), however, is discretionary"); Miljkovic v. Ashcroft, 366 F.3d 580, 582 (7th Cir. 2004) ("the grant of derivative status to the spouse of a successful applicant for asylum is not automatic but requires an exerci......
-
Huli v. Way, 03 CIV. 2228(VM).
...18, 2000). The decision to grant derivative asylum status is entirely discretionary. See 8 U.S.C. § 1158(b)(3)(A); Miljkovic v. Ashcroft, 366 F.3d 580, 582 (7th Cir.2004). The statutory basis for asylum, Section 208(b)(1)(A) of the INA, provides that "the Secretary of Homeland Security or t......