UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1231

DAVID NJOROGE GITATA; MARY WANJA GITATA; KEVIN MUCHUGIA 

NJOROGE,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: October 2, 2012 Decided: October 31, 2012

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Petition denied by unpublished per curiam opinion.

Jeremy L. McKinney, MCKINNEY PERRY & COALTER, Greensboro, North 

Carolina, for Petitioners. Gregory G. Katsas, Acting Assistant 

Attorney General, Richard M. Evans, Assistant Director, Virginia 

Lum, Office of Immigration Litigation, UNITED STATES DEPARTMENT 

OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

David Njoroge Gitata, Mary Wanja Gitata and Kevin 

Muchugia Njoroge, natives and citizens of Kenya, petition for 

review of an order of the Board of Immigration Appeals (“Board”) 

dismissing their appeals from the immigration judge’s order 

denying their applications for asylum, withholding from removal 

and withholding under the Convention Against Torture (“CAT”).1 2

We deny the petition for review. 

To establish eligibility for withholding of removal, 

an alien must show a clear probability that if he was removed to 

his native country, his “life or freedom would be threatened” on 

a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see

Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear 

probability” means that it is more likely than not that the 

alien would be subject to persecution. INS v. Stevic, 467 U.S. 

407, 429-30 (1984). 

 1 The Petitioners do not challenge the denial of asylum or 

the denial of relief under the CAT. This court will not review 

those findings. See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 

(4th Cir. 2004) (finding that failure to raise a challenge in an 

opening brief results in abandonment of that challenge); 

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 

1999) (same). 

2 Kevin Muchugia Njoroge is a derivative applicant to David 

Gitata’s application for relief. 
3

In order to qualify for relief, an applicant must show 

that his persecutor was motivated in part by the applicant’s 

race, religion, nationality, membership in a particular social 

group, or political opinion. See Menghesha v. Gonzales, 450 

F.3d 142, 148 (4th Cir. 2006).3 However, the protected ground 

cannot be incidental, tangential, superficial or subordinate to 

any other reason for the harm. In re J-B-N- & S-M-, 24 I. & N. 

Dec. 208, 214 (BIA 2007). 

Withholding of removal is mandatory if the alien meets 

the standard of proof. Gandziami-Mickhou v. Gonzales, 445 F.3d 

351, 352-53 (4th Cir. 2006). A determination regarding 

eligibility for withholding of removal is conclusive if 

supported by substantial evidence on the record considered as a 

whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). 

Further, administrative findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to decide to the 

contrary. 8 U.S.C. § 1252(b)(4) (2006).

 3 Because Gitata’s application was filed prior to the 

enactment of the Real ID Act, the amendment to the INA requiring 

that a protected ground be one central reason for the 

persecution is not applicable in his instance. See AbdelRahman v. Gonzales, 493 F.3d 444, 453 n.12 (4th Cir. 2007). On 

the other hand, Mary Gitata, whose application was filed after 

the Act’s effective date, must meet the “one central reason” 

standard in 8 U.S.C. § 1158(b)(1)(B)(i) (2006). Id.; see also

Matter of C-T-L-, 25 I. & N. Dec. 341, 344-46 (BIA 2010) 

(extending statutory “one central reason” standard to 

withholding of removal). 
4

We conclude that substantial evidence supports the 

finding that neither David nor Mary Gitata showed that they were 

persecuted or that there was a clear probability of persecution 

on account of a protected ground. This conclusion includes 

consideration of the arguments that the Petitioners had a 

political opinion or one imputed to them or that they were 

members of a particular social group. 

Accordingly, we deny the petition for review. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

PETITION DENIED