Luis Alberto Pretelt v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4051
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LUIS ALBERTO PRETELT,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A47-204-696)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 10, 2010
Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges
(Opinion filed: March 16, 2010)
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OPINION
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PER CURIAM
Luis Alberto Pretelt, a citizen of Colombia, was admitted to the United States as
lawful permanent resident on October 23, 1999. On August 9, 2005, he was convicted of
arson in the third degree in New Jersey under N.J. Stat. Ann. §§ 2C:17-1(b)(1) and 2C:2-

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Section 2C:2-6 is a general liability provision. Section 2C-17-1 describes arson and1
related offenses; although it has many sections, there is no dispute that Pretelt’s
conviction was under subsection (b)(1).
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6. On January 16, 2008, the Government charged him as removable under 8 U.S.C.1
§ 1227(a)(2)(A)(i) for having committed, within five years of becoming a lawful
permanent resident, a crime of moral turpitude for which a sentence of one year or more
may be imposed. Pretelt applied for cancellation of removal. The Immigration Judge
(“IJ”) denied Pretelt’s application and determined that Pretelt was removable as charged.
Pretelt appealed to the BIA, which affirmed the IJ’s decision and dismissed Pretelt’s
appeal.
Pretelt presents a petition for review. The Government initially submitted a
motion to dismiss Pretelt’s petition, arguing that the Court lacks jurisdiction because
Pretelt was convicted of a crime involving moral turpitude and raises no legal or
constitutional issues. However, in its brief, the Government does not pursue its
jurisdictional argument, instead requesting that we deny the petition on the merits. As the
Government realizes, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) over
constitutional claims and questions of law raised in a petition for review. Accordingly,
we deny the Government’s motion and review the issue that Pretelt raises, namely
whether his crime was a crime of moral turpitude. Cf. Garcia v. Attorney Gen. of the
United States, 462 F.3d 287, 291 (3d Cir. 2006).
The specific issue is whether the crime (arson in the third degree) for which Pretelt

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was convicted is a crime of moral turpitude. (It is undisputed that Pretelt committed a
crime (on May 11, 2004) within five years of becoming a lawful permanent resident (on
October 23, 1999) for which he was subject to a term of imprisonment of one year or
more, see N.J. Stat. Ann. § 2C:43-6(a)(3).) Upon review, we hold that the agency
reasonably concluded that Pretelt committed a crime of moral turpitude.
In Partyka v. Attorney General of the United States, we summarized the inquiry
into whether a crime involves moral turpitude:
Whether an alien’s crime involves moral turpitude is determined by the
criminal statute and the record of conviction, not the alien’s conduct. . . .
Under this categorical approach, we read the applicable statute to ascertain
the least culpable conduct necessary to sustain a conviction under the
statute. . . . As a general rule, a criminal statute defines a crime involving
“moral turpitude only if all of the conduct it prohibits is turpitudinous.” . . .
Where a statute covers both turpitudinous and non-turpitudinous acts,
however, it is “divisible,” and we then look to the record of conviction to
determine whether the alien was convicted under that part of the statute
defining a crime involving moral turpitude.
417 F.3d 408, 412 (3d Cir. 2005) (citations omitted); see also Jean-Louis v. Attorney Gen.
of the United States, 582 F.3d 462, 466 (3d Cir. 2009) (describing our limited factual
inquiry to determine the specific subpart under which a defendant was convicted in cases
in which the statute of conviction is “divisible”).
The section of the statute under which Pretelt was convicted reads as follows:
b. Arson. A person is guilty of arson, a crime of the third degree, if he
purposely starts a fire or causes an explosion, whether on his own property
or another’s:
(1) Thereby recklessly placing another person in danger of death or bodily

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injury[.]
N.J. Stat. Ann.§§ 2C:17-1(b)(1). New Jersey defines the term “recklessly” as follows:
Recklessly. A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation. “Recklessness,”
“with recklessness” or equivalent terms have the same meaning.
N.J. Stat. Ann. § 2C:2-2(b)(3).
The recklessness required for Pretelt’s conviction under New Jersey law is
recklessness in regard to the life or bodily integrity of another. Accordingly, the BIA did
not err in concluding the crime implicated “accepted rules of morality and the duties
owed to society.” Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004). In Knapik, we
held that the BIA did not act unreasonably in concluding that a first degree reckless
endangerment statute, which contained aggravating factors requiring a defendant to create
a “‘grave risk of death to another person’” “‘under circumstances evincing a depraved
indifference to human life,’” described a crime involving moral turpitude. Id. As we
stated in Partyka (citing Knapik), we have expressed approval of the BIA’s decision to
find “moral turpitude to inhere in serious crimes committed recklessly, i.e., with a
conscious disregard of a substantial and unjustifiable risk that serious injury or death
would follow.” 417 F.3d at 414. The arson crime at issue in this case, with requisite
recklessness in relation to the risk of injury or death, is not sufficiently distinguishable

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from the crime in Knapik to justify a different result.
In short, for the reasons stated, we deny the Government’s motion to dismiss and
we will deny the petition for review.

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