     Case: 12-60911       Document: 00512373172         Page: 1     Date Filed: 09/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 13, 2013
                                     No. 12-60911
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARINA MEMBRENO SERBELLON,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A075 869 006


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Marina Membreno Serbellon, a native and citizen of El
Salvador, petitions us for review of the Board of Immigration Appeals (BIA)
decision dismissing her appeal of the denial of a motion to rescind an in absentia
order of removal and to reopen her removal proceedings. This motion was filed
approximately 15 years after the entry of the final order of removal.
       In her petition for review, Membreno Serbellon asserts that the 180-day
deadline for filing a motion to reopen pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i)

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-60911     Document: 00512373172     Page: 2   Date Filed: 09/13/2013

                                  No. 12-60911

should be equitably tolled based on her assertions that she received ineffective
assistance of counsel and that her counsel committed other unethical and
improper acts. In this circuit, an argument for equitable tolling of the time
limits for a motion to reopen is construed as a challenge to the BIA’s refusal to
exercise its discretion to sua sponte reopen the proceeding. See Ramos-Bonilla
v. Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008). As we lack jurisdiction to
review this purely discretionary decision, her petition for review is dismissed in
part. See id.
      Membreno Serbellon also argues that her motion to reopen should have
been granted because she has a right to de novo review of the denial of her
application for Temporary Protected Status (TPS). See 8 U.S.C. § 1254a(b)(5)(B);
8 C.F.R. § 244.18(b). However, this right to de novo review applies to aliens
already in removal proceedings; she has not shown that it provides an
independent basis for reopening of a final order of removal.            See, e.g.,
§ 1254a(b)(5)(B); 8 C.F.R. § 244.18(b); see also Mejia Rodriguez v. U.S. Dept. of
Homeland Sec., 562 F.3d 1137, 1145 (11th Cir. 2009). In addition, the BIA
decision Membreno Serbellon cites, Matter of Lopez-Aldana, 25 I. & N. Dec. 49,
51 (BIA 2009), is distinguishable because it addressed whether an alien was
required to exhaust administrative appeal procedures before seeking review of
a TPS determination before an IJ in removal proceedings; unlike Membreno
Serbellon, the alien in Lopez-Aldana was not subject to a final order of removal.
      Accordingly, the petition for review is DISMISSED IN PART and DENIED
IN PART.




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