But as we read the Board’s precedent, an agency’s sua sponte reopening of removal proceedings and an alien’s collateral attack on a removal order are two different things. See In re J–J– , 21 I. & N. Dec. 976, 976, 984 (B.I.A. 1997) (applying an "exceptional circumstances" test for sua sponte reopening); In re La Grotta , 14 I. & N. Dec. 110, 111–12 (B.I.A. 1972) (applying a "gross miscarriage of justice" standard to a collateral attack on a prior removal order outside the sua sponte context). The IJ denied Reyes-Vargas’s motion by merely checking a box marked "[for] the reasons stated in the [government’s] opposition to the motion."
Petitioner's Br. at 39. However, despite the BIA's acknowledgment that a petitioner can launch a collateral attack on a prior deportation proceeding if there is a gross miscarriage of justice, see, e.g., Matter of La Grotta, 14 I N Dec. 110, 111-12 (BIA 1972), the BIA found such a miscarriage in only two of the cases cited by Mr. Robledo-Gonzales, Matter of Farinas, 12 I N Dec. 467 (BIA 1967), and Matter of Malone, 11 I N Dec. 730 (BIA 1966). In those cases, the Board determined that there had been a gross miscarriage of justice because the individual should not have been deported based on the law as it existed at the time of the original deportation.