Osigwe, et al v. Ashcroft

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 6, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60725
Summary Calendar
NGOZI VICTORIA OSIGWE;
CHIBUNDU CAJETAN OSIGWE,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A70 958-627 &
A70 958-626
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Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Ngozi Victoria Osigwe and her husband, Chibundu Cajetan
Osigwe, natives and citizens of Nigeria, have filed a petition for
review of the Board of Immigration Appeals’ (BIA) summary decision
denying their appeal from the Immigration Judge’s (IJ) order
denying their application for asylum, withholding of removal, and

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for protection under the United Nations Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment
(Convention Against Torture Act). The Osigwes contend that their
minor daughter, who is a United States citizen, will be compelled
to undergo female genital mutilation (FGM) if the family returns to
Nigeria.
The IJ correctly determined that the Osigwes are not
eligible for asylum under the general asylum provisions based
solely on their daughter’s risk of being subject to FGM if she is
returned to Nigeria. See Jukic v. INS, 40 F.3d 747, 749 (5th Cir.
1994). However, the Osigwes may be eligible for a “‘humanitarian’
grant of asylum,” a claim that they raised before the IJ. Krastev
v. INS, 292 F.3d 1268, 1271 (10th Cir. 2002). The Government
acknowledges that the Osigwes have exhausted their administrative
remedies with respect to this claim and concedes that the case must
be remanded to the BIA to determine in the first instance whether
the Osigwes warrant a discretionary grant of humanitarian asylum
and withholding of removal. The petition for review is GRANTED
with respect to the claims of humanitarian asylum and the
withholding of removal claims.
Although the Osigwes’ citizen child would be subject to
the risk of torture if she was returned to Nigeria, the Osigwes do
not fall within the parameters of the Convention Against Torture
Act based on their knowledge that their daughter faced a risk of
being tortured. See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3rd

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Cir. 2003). Thus, the petition for review is DENIED with respect
to this claim.
The Osigwes’ petition for review is GRANTED in part, and
the matter is VACATED and REMANDED to the BIA so that the BIA can
address the Osigwes’ claims of humanitarian asylum and withholding
of removal based on the severity of Mrs. Osigwe’s past persecution
or some other serious harm she may experience upon return to
Nigeria. See Rivas-Martinez v. INS, 997 F.2d 1143, 1148 (5th Cir.
1993).
PETITION GRANTED IN PART AND DENIED IN PART; VACATED AND
REMANDED.

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