The right to seek asylum from persecution is one of medieval law’s greatest contributions to modern international jurisprudence. Asylum is a good and necessary provision—one of those basic legal principles that can be traced back to the Greeks and Romans—and one of the essential benchmarks of a civilized, compassionate society.

The First Circuit releases an average of maybe about 2-3 immigration-related decisions per week, the majority of which relate to asylum proceedings. The merits of these asylum appeals vary pretty widely, but often trend toward the weaker end of the spectrum. After a quick read through the facts, you can acknowledge that there was probably a pretty good reason for the initial denial by the immigration judge (”IJ”), despite any meritorious appellate issues that may have been raised in the process.

But every few months, there’s an asylum appeal that can get you thinking a little more about the state of our system. About the kind of country we want to be, and how our immigration policies could better reflect that.

So onward, to the  sack of coal left on the immigration bar’s doorstep this Christmas Eve by the First Circuit in Amilcar-Orrellana v. Mukasey, No. 08-1563. I’ve been thinking about it a lot this week.

The facts, in brief: Jose Amilcar-Orellana crossed the border in 1994 as a refugee from El Salvador and made a life for himself with family in East Boston. About six years later, he witnessed gang members pour a liquid into his apartment building’s entryway and light a match. Amilcar-Orellana immediately called the police, warned his neighbors, and helped to save several children as the building burned. As the only witness to the arson, he then assisted the police in identifying and locating the perpetrators, one of whom came by several days later to threaten him. Despite this obvious danger to himself, Amilcar-Orellana eventually testified in grand jury proceedings against the arsonists (neither of whom were prosecuted for the crime for reasons not mentioned on the record). Several days after his grand jury testimony, the gang sent men to look for him—at which point Amilcar-Orellana prudently decided that it was time to return to El Salvador.

Amilcar-Orellana lived for several months without incident in El Salvador until the arsonists were deported, at which point they sent the gang (never named in the opinion, but it is fair to assume that MS-13 had at least a cameo in all of this) around to look for him. (Gangs have a way of doing that in a country which–size-and-elsewise–is the New Jersey of Central America.) Amilcar-Orellana and his new, newly-pregnant wife fled to Mexico, and then on to the US. They eventually found themselves in asylum proceedings before an IJ in Boston who ruled that they had not been targeted by any particular gang, but only by two individuals with a “grudge.” And “grudges,” of course, do not an asylum case make.

The Board of Immigration Appeals agreed with the IJ on appeal, and further held that “non-confidential informants who have identified gang members, and given information regarding specific criminal activity to law enforcement officials” were not members of a properly-identifiable social group for asylum purposes, especially given that there was no evidence on the record that known informants suffer higher rates of violence in gang-ridden El Salvador than anyone else. (Also not on the record: the color of the sky in El Salvador. How can we be sure?) The First Circuit upheld all of this, as well as the BIA’s earlier finding that his decision to participate in the prosecution did not amount to any kind of a political opinion. He was, after all, only risking his life in an attempt to be sure that justice was done because he believed that it was, in his words, “the correct thing to do.”

As an immigration practitioner, I know that the immigration bar has continued to try to push the edges of asylum based on “social group,” especially as it relates to victims of gang activity, with little success. I can understand why denial was reasonable here under existing asylum standards, even if I respectfully disagree with both the ruling and the outcome; there’s nothing new here.

As an East Boston resident and homeowner, this precedent gives me serious cause for concern. While Eastie’s gang problem has been significantly reduced since the time of these events, it has not been fully eliminated. I do not want my neighbors to have any reason to pause before picking up the phone to report any crime—let alone brazen acts of gang violence—or to feel that our local, state, and/or federal government will not protect them during and subsequent to the prosecution (and possible deportation) of the perpetrators.

But my larger concern is as an American. I simply can’t believe that it is beyond the ability of my government to extend even the most basic protection to a decent man who put his life at risk because “it was the correct thing to do.”

There was an argument (raised for the first time on appeal) that Amilcar-Orellana’s decision to assist law enforcement officials was made due to a fundamental opposition to gang activity (which, sadly, amounts to a political opinion in El Salvador these days), as well as a belief in the superiority and fundamental efficacy of the American legal system and the rule of law. This argument is a stretch (and hasn’t gone over so well when I’ve tried it with IJs in the past), but it’s a solid backup to the social group proposed here.

Beyond these tenuous asylum grounds, the “S” (”a.k.a. ‘Snitch’) visa is the only other potential safe harbor for most people like Amilcar-Orellana who have put themselves at risk due to voluntary participation in most kinds of criminal prosecutions. (T and U visas are also available for victims and witnesses of certain delineated types of crimes not relevant to this post, but that’s another dicussion.) The S is pretty much just what it sounds like: a basic legal status for those who have been or may be materially helpful to  criminal prosecutions which may be permitted to later serve as the basis for adjustment of status to permanent residency.

Unfortunately, as I was once memorably informed by a DHS trial attorney, actually getting an S visa is “climbing Everest.” There’s no application—referrals are made internally by law enforcement—and only 200 may be awarded per year nationally. (Only an additional 50 [!] are allotted for the S-6, a variant specifically available only for anti-terror cases.) Given this limited pool, S visas are by necessity prioritized for the most prominent federal cases–and almost never for state-based prosecutions, even if state law enforcement agents are technically permitted to apply for them.

As interesting a policy discussion as all of this may be, Jose Amilcar-Orellana is a real person with a real decision to make: to voluntarily return to an ugly death in his home country or to rejoin the undocumented underground in East Boston (or, if he’s as smart as I think he is, elsewhere) and wait for ICE to catch up with him and execute an outstanding removal order which will almost certainly amount to a death sentence. He is not the first person to risk his life to do the “correct thing” in the belief that our government would be able to protect him from retaliation, and he may not be the last to die for this mistake.

Matt Cameron