                                                                           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                               NOT FOR PUBLICATION                          MAR 03 2011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.
