                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS          October 6, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 02-60725
                          Summary Calendar



                       NGOZI VICTORIA OSIGWE;
                      CHIBUNDU CAJETAN OSIGWE,

                                         Petitioners,

                               versus

               JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                         Respondent.

                         --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                      BIA Nos. A70 958-627 &
                                 A70 958-626
                         --------------------

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



     *
        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that this opinion should not be published and is not precedent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.
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

                                       -2-
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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