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, andDIANE P.WOOD, Circuit Judges.

POSNER, Circuit Judge. 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
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 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
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 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
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 appellate 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 reexamine 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