UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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.
2
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 Abdel-
Rahman 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).
3
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
4