It was so dark at 1 a.m. that Jhonatan Cortéz could hardly see the wall separating Tijuana from San Diego in front of him. As he pulled himself up, hand over hand, he was both determined and terrified. He couldn’t go back to El Salvador, where he would lose the opportunity to use the culinary degree he’d just earned and instead be forced to join a gang. He had to get to the U.S. to safety, and climbing this wall was his only option. He was about halfway up the second barrier when Border Patrol spotted his group. He used all his might to scramble up and over, and then slipped and fell hard, some 30 feet onto U.S. soil. He sprinted about 45 feet before collapsing in pain, the adrenaline was pulsing so hard he hadn’t realized his ankle was totally mangled.
With the border still closed for most migrants, a growing number who have no safe way to present their asylum claims have taken desperate and sometimes fatal measures, like climbing the border wall. To countless migrants escaping violence, economic and climate devastation (and in many cases trying to reunite with family and loved ones) the only feasible option for entering the U.S. is to risk injury and death.
That’s not a political mistake; it’s by design. Biden now joins a long tradition of presidents who’ve added to the immigration enforcement strategies of border militarization and prevention through deterrence. Right now, though, Biden must overturn the deadly policies that keep the border shut to asylum seekers. Until that happens, the human casualties of these policies, and in particular title 42, fall on the shoulders of this administration.
Trump created two central policies that halted asylum at the border. First a law often known as Remain in Mexico and formally called the Migrant Protection Protocols or MPP in 2019, which forced asylum seekers to wait for their hearings in dangerous border cities in Mexico. COVID-19 then allowed them to reinstate a 1940s public health ordinance and turn away virtually all asylum seekers and immigrants. This policy, called Title 42, dealt asylum a final blow. While the Biden administration is making slow progress undoing MPP and the harm it’s caused, they have embraced and defended Title 42. With the border shut, asylum-seekers are desperately scrambling for other ways to get in.
“Believe me, you would have never seen a Cuban person climb the wall before all this,” Lisbet Mendozo told The Daily Beast, referring to MPP and Title 42. “You’d turn yourself in [at the port of entry]. Maybe you’d wait two weeks or a month, but it didn’t matter because you knew they’d eventually let you in.”
Mendozo is a Cuban asylum-seeker who was returned to Mexico herself two years ago on the day that MPP went into effect. She suffered extreme hardship and abuse in Ciudad Juarez while she waited for her asylum case to be heard. Mendoza told The Daily Beast that she knows countless Cuban women in her same situation who decided to “put their fate in God’s hands,” as she put it, and scale the wall.
Diocesan Migrant & Refugee Services supervising attorney Marysol Castro represented two such Cuban women. In their desperation to get to the U.S. and out of Ciudad Juarez, both tried to scale the border wall, fell, and suffered injuries so severe Customs and Border Protection (CBP) couldn’t return them back to Mexico.
“When she landed she was unable to even get up,” said Castro, referring to one of her clients who fell in December 2020. “She just laid there until CBP picked her up and took her to the hospital.” After eight surgeries over two weeks in the hospital where they treated her like a prisoner, CBP put her on a plane to Florida to be with her husband.
“What's really crazy is even though she went through so much and she's in so much pain, she's relieved and happy to not be in that situation she was in there,” Castro said.
Charlene D’Cruz of Lawyers for Good Government represented a Central American woman who broke both legs, her jaw, ribs, “basically every bone in her body” falling from the wall. “The only reason she got to stay is because she was broken up literally in pieces.” D’Cruz said of her 27-year-old client.
Jhonatan Cortéz, by contrast, broke only one ankle when he fell, and was sent back to Mexico in the middle of the following night. He, like the over 536,000 people expelled under Title 41 in 2020 and 2021, was not screened to determine whether he had fear of returning to his home country, or was a victim of human trafficking. While he did get initial treatment in San Diego, doctors have told him he will require further surgeries that his family is trying to raise funds for if he is ever to use his right foot again.
In the weeks after Biden came into office and it became clear that he would not revoke Title 42, hospitals, medical schools, and public health programs came together to pen a letter urging the Biden administration “to rescind – and not extend or re-adopt – xenophobic, cruel, and unlawful policies implemented by the Trump administration under the pretext of public health...”
But instead he has doubled down on a policy that stands in such contrast to his campaign promises. A report on Title 42 co-authored by the Haitian Bridge Alliance points to the fact that more Haitians have been removed by the policy and sent back to grave danger in the weeks since Biden took office than during all of the 2020 fiscal year. While Gerline Jozef, the executive director of the Haitian Bridge Alliance, was not surprised, she did hope that things would be different with Biden. Instead, she says, “The Biden administration is using Title 42 as a weapon against migrants and asylum seekers.”
Jozef knows all too well that while asylum wears the facade of a humanitarian project, the process is at its core entirely a matter of politics—politics that don’t consider the humanity of those most vulnerable migrants like the mostly Black migrants from Haiti and different nations in Africa that her organization represents.
Why, if not politics, would the U.S. deny almost 90 percent of Mexican claims, while granting nearly 80 percent of those from Eritreans?
“It would be a diplomatic sucker punch for the U.S. to openly acknowledge that Mexico either persecutes or cannot protect its own citizens, but it has no problem making that same assessment about Eritrea,” writes John Washington, author of The Dispossessed: A Story of Asylum at the US-Mexican Border and Beyond. “Consider the ‘humanitarianism’ that drove the United States to welcome Cuban Refugees at the same time it staged a Cuban invasion and slammed the door shut on fleeing Haitians,” he writes.
This is why unlike Castro and D’Cruz’s clients, Cortéz wasn’t planning to seek asylum. He didn’t have a chance. Courts not only do not favor asylum seekers from El Salvador (their denial rate hovers around 85 percent), but Jeff Sessions removed gang violence from asylum eligibility in 2018. His fears aren’t credible, in this political climate. By hoisting himself off of Tijuana terra firma, and up and over the wall to San Diego, Cortéz was trying to decide his own destiny instead of leaving it to our rigged system.
“The U.S. government has promised the world that it would protect vulnerable migrants,” said the young chef. “It’s not doing that at all.”
This past year was the deadliest on record for migrants crossing the Arizona desert. We don’t know how many of those remains belonged to people whose specific fears would have fit the ever-narrowing definition of asylum had the ports of entry been open, but that shouldn’t matter. No one should be forced to scale a wall, swim a river, nor traverse dangerous wilderness to reach the U.S.
“They’ve risked it all so they can give back,” Jozef says of the migrants her organization represents. “Honestly with their determination, and the way they are able to survive, it is mind-boggling for anyone to see these people as anything but an asset to these United States. How do we not have a system to welcome those people that we know, we know, will give their all for this country?” said Josez, echoing countless Biden stump speeches.
Immigration reform is a long row to hoe with decades worth of damage to undo and heal from. Biden may be better than the last president, but that his administration has not reopened the border to asylum seekers yet is deeply concerning. The Biden administration has an immediate obligation to remove Title 42 as a first step towards a more humane immigration strategy than the one he inherited.
Outside our gates wait tens of thousands of individuals with unwavering perseverance and dedication to seek safety, and contribute their talents to this country. If we as Americans can’t muster outright hospitality, let us at least invite them in with the dignity that all human beings deserve.
