FILED
NOT FOR PUBLICATION MAR 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBINSON PINILLA-PULIDO; et al., No. 06-74353
Petitioners, Agency Nos. A097-363-020
A097-363-021
v. A097-363-022
A097-363-023
ERIC H. HOLDER, Jr., Attorney General,
Respondent. MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 17, 2011
Pasadena, California
Before: RYMER and BYBEE, Circuit Judges, and QUIST, Senior District Judge.**
Robinson Pinilla-Pulido (“Pinilla”), along with his wife, son, and daughter,
appeal a decision of the Board of Immigration Appeals (“BIA”) denying their
application for asylum from Colombia and Venezuela and withholding of removal
to Venezuela.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, Grand Rapids, sitting by designation.
The BIA found that Petitioners are ineligible for asylum from Colombia
because, prior to arriving in the United States, they had firmly resettled in
Venezuela. In reaching this decision, the BIA explicitly adopted the reasoning of
the Immigration Judge (“IJ”) and did not apply the firm resettlement standard
enunciated in Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006), an intervening
en banc decision of this court. Because neither the IJ nor the BIA considered
whether Petitioners were firmly resettled in Venezuela under Maharaj, we vacate
the BIA’s decision and we remand this case to the BIA for reconsideration in light
of Maharaj.
At oral argument, Petitioners’ counsel asked this court to consider recent
evidence of changed country conditions in Venezuela reflecting the Venezuelan
government’s support of the Colombian FARC. We refuse to consider this
evidence because it is not part of the record. 8 U.S.C. § 1252(b)(4)(A). Petitioners
should present this evidence in the first instance to the BIA through a motion to
reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Malty v.
Ashcroft, 381 F.3d 942, 945–46 (9th Cir. 2004).
We hereby GRANT the petition, VACATE the BIA’s decision, and
REMAND for reconsideration in light of Maharaj.