Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. “It is possible,” says the gatekeeper, “but not now.”
–Franz Kafka, “Before the Law”
Early every weekday morning, several dozen Central American asylum seekers come to El Chaparral, the entry to the Tijuana side of the Western hemisphere’s busiest border crossing, to reenact my favorite Kafka story.
A small cadre brings out a tent and sets up a plastic folding table beneath it. A notebook is produced, opened with no small reverence, and placed on the table. Migrants line up to add their names to the list it contains and receive a number to take with them.
I watch the crowd pull together as a gatekeeper, a modest broad-faced man in a blue polo shirt, appears. After a preliminary announcement about how he isn’t personally responsible for any of this, he calls a number. No one answers. He calls it again. He moves on to the next number.
It is possible. But not now.
These refugees are all part of the as-seen-on-Fox-News Central American “migrant caravan,” and many of them have been relocated by the Mexican government to El Barretal, an abandoned nightclub complex about ten miles south of the port of entry. There is no formal communication between the list managers at El Chaparral and the people waiting their turn on the list miles away. The day’s numbers are communicated through word of mouth back at the camp, and any refugees who are not physically present at the time that their names get called will lose their place if they do not appear during the brief grace period that follows.
La lista, the list of thousands of names contained within the notebook on that plastic table, is also known to the small rotating core of volunteer American attorneys—myself among them—who have come to do whatever American lawyers might be able to do on the wrong side of their border in a Mexican refugee crisis, as la lista illegal, or la lista de la chingada.
Customs and Border Patrol began the controversial practice of “metering” asylum seekers in Tijuana when thousands of Haitian migrants arrived within the space of a few months in 2016, seeking entry into San Diego. As the lines grew longer, la lista became the inevitable solution.
Here’s the thing about la lista: It does not, and cannot, officially exist.
There are now lists at several other border crossings, but the one in Tijuana holds the distinction of being both (by far) the longest and (in a truly Kafka-worthy twist) the only one managed and run by the asylum seekers themselves. Somewhere between thirty and a hundred names are called each day, with a growing backlog of more than four thousand names. The small plaza outside El Chaparral is the end of the migrants’ long journey, and for many of them, it may be the closest they’ll ever stand to American soil—in painful sight, but still just as distant as it was before they left their homes, often thousands of miles away.
But here’s the thing about la lista: It does not, and cannot, officially exist. International law requires that anyone seeking asylum in another country be given the opportunity to pursue their claims, and it is plainly illegal to restrict the right of access to asylum without due process. U.S. authorities maintain that anyone has the right to walk up to the border and apply, knowing well that the armed local, state, federal, and immigration authorities surrounding the plaza virtually ensure that they don’t. (Migrants who attempt to cross will be directed to la lista, which is guarded over by Mexican immigration authorities every night before it’s then handed back to the custody of the rotating asylum seekers who manage it.)
Legal challenges have (so far) been unavailing, though in late August a federal judge denied CBP’s motion to dismiss a pending lawsuit related to the practice of turning away asylum seekers. For now, though, la lista is the only law here.
At Barretal, many of the migrants are grateful just for someone to hear their stories. They killed my parents. They killed my son. They killed two of my cousins. They extorted us until we had nothing to give. The police work with them. They said I had twenty-four hours to leave the country. They wouldn’t stop until I was dead. These are all variations on the main themes I’ve been hearing from my Central American clients in Boston for as long as I have been representing clients in deportation proceedings. The only difference in Tijuana is that these stories are related with the tone of raw immediacy that convulses the speech of people facing uncertain futures.
In our final hours in Tijuana, my law partner Nicole Micheroni met Jasson, a lanky, good-natured kid with a sweet smile. He was traveling alone, sleeping on the ground, painfully homesick. We made arrangements through the legal services organization Al Otro Lado to get him into to a juvenile shelter across town, and took him over in an Uber once we had finished for the day in the camp. On the drive over, he showed us photos of his family, took selfies, and asked us questions about life in the United States.
When we arrived at the shelter, a staff member was mixing fresh greens in a giant wooden salad bowl. An adorable kitten made the rounds. Jasson was greeted with tears and a hug by a shy young woman from whom he had become separated during the journey. Jasson was happy. The girl was happy. The shelter staff were happy. We were happy.
Hours after leaving Jasson safely in the juvenile shelter, I ascended the switchback ramps of El Chaparral up to the long covered footbridge leading back toward San Diego. A trio of Mexican immigration authorities didn’t look up from their phones as yet another scruffy white guy with a backpack went by. A soldier with an M16 gave me a tepid buenos noches as I passed. Eleven o’clock, and all was well.
But something was wrong. I noticed my grip on the railing tighten, and then relax, as I stopped to rest outside the gates of the law.
My body was giving in to a growing fever, my senses distorted by illness and exhaustion. I stopped in a panic halfway across the endless bridge and slumped down against the wall, convinced for the better part of a minute that I would not be physically able to make the crossing. But I had just spent three days talking to refugees who had traveled thousands of miles to cross the same invisible line on a map that I was now approaching, and who were going to have to wait months longer. And all I had to do was walk: across the bridge, down the spiraling ramp, through the customs hall, past the gatekeepers of the law and, finally, into a black and bracing American night.
“Before the Law” ends, like so many of Kafka’s absurdist nightmares, in disappointment and death. Having spent the balance of his lifetime waiting to enter the gates of the law, the man’s dying words are a final plea to the gatekeeper to allow him passage.
“You are insatiable,” the gatekeeper responds.
Jasson’s body was found on a Tijuana side street a week after we saw him to safety. The list killed him.
“Before the Law” ends, like so many of Kafka’s absurdist nightmares, in disappointment and death.
While there are conflicting accounts of the circumstances of his death, we have reason to believe that our young friend was lured away by a woman claiming to be able to move him up la lista, then brutally murdered after a botched attempt to extort a ransom from his family in Honduras.
Jasson’s needless death was brought on not only through illegal delay before the gates of the law, but also—even more tragically—the false hope that he would be able to pass through them. And he was just one of thousands of vulnerable asylum seekers forced to wait their indefinite turn before these gates, far from home in one of the world’s most dangerous cities. If the Trump administration’s plan to force all Central American asylum seekers to remain in Mexico is allowed to move forward, there will be many more like Jasson.
Kafka concludes “Before the Law” with the gatekeeper’s final words to the dying man as he strains for one final chance to enter the gates of the law. All I can think of as I read them now are the self-appointed guardians of thousands of ledgered lives, shading their eyes in the morning sun to scan la lista.
“Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”