Ramos v. Wolf: The Recent Ninth Circuit Decision & The Widespread Ramifications by: Torrye Zullo

Understanding the Purpose and Meaning of the Temporary Protected Status Program 

The Temporary Protected Status (TPS) program is “a congressionally created humanitarian program” crafted after the passage of the Immigration Act of 1990.[1] TPS provides temporary relief to nationals of designated foreign countries who cannot safely return in the short term to their home nation as a result of a natural disaster, armed conflict, or other “extraordinary and temporary conditions in the foreign state.”[2] The creation of the TPS program stemmed from concerns with the “extended voluntary departure” (EVD) process, which was the process for how the federal government allowed groups of nationals to remain in the United States for humanitarian reasons prior to TPS.[3] TPS currently protects roughly 317,000 people in the United States from 10 different countries.[4]

The TPS statute authorizes the Secretary of Homeland Security to designate foreign countries for TPS “after consultation with appropriate agencies of the Government” and “only if” the Secretary finds certain criteria met, including (A) “an ongoing armed conflict within the state” where “requiring the return of [nationals of that state] . . . would pose a serious threat to their personal safety; (B) “earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected” where “the foreign state is unable, temporarily, to handle adequately the return [of its nationals] to the state,” and the state “officially has requested [this] designation”; and (C) “extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”[5]

TPS Determinations for Sudan, Haiti, Nicaragua, and El Salvador

In 2017 and 2018, Secretaries of the Department of Homeland Security terminated the TPS designations of four countries: Sudan, Nicaragua, Haiti, and El Salvador.[6]

In 1997, Sudan was designated for TPS because of an ongoing civil war that prevented the safe return of Sudan nationals.[7] In the next 20 years, Sudan was periodically extended or redesignated for TPS fifteen times by prior administrations, based on factors such as forced relocation, human rights abuses, famine, and denial of access to humanitarian agencies.[8] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Sudan.[9] The termination notice concluded that the conflict in Sudan was now “limited to Darfur and the Two Areas (South Kordofan and Blue Nile states) and therefore the designation was no longer necessary.[10]

In 1999, Nicaragua was designated for TPS because of conditions caused by Hurricane Mitch.[11] The designation was then periodically extended or redesignated for TPS thirteen times by prior administrators, based on factors such as “recent droughts as well as flooding from Hurricane Michelle in 2002” and subsequent natural disasters and storms.[12] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Nicaragua.[13] The termination notice concluded, inter alia, that “[r]ecovery efforts relating to Hurricane Mitch ha[d] largely been completed” and the “social and economic conditions affected by Hurricane Mitch ha[d] stabilized” by 2017.[14]

In 2001, El Salvador was designated for TPS because of the devastating effects of three earthquakes.[15] Since then, El Salvador’s designation was extended eleven times by prior administrations, based on factors such as “a subsequent drought” (2002 notice), the effects of Tropical Storm Stan, the eruption of the Santa Ana volcano, subsequent earthquakes, and Hurricane Ida (2010 notice).[16] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for El Salvador.[17] The termination notice concluded, inter alia, that conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.[18]

Lastly, in 2010, Haiti was designated for TPS after a 7.0 magnitude earthquake devastated the country’s population and infrastructure.[19] Since then, Haiti’s TPS designation was extended or redesignated five times, including once by the Trump administration, based on factors such as, “steady rains . . . which led to flooding and contributed to a deadly cholera outbreak.”[20] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Haiti.[21] The termination notice concluded, inter alia, the“extraordinary and temporary conditions relating to the 2010 earthquake that prevented Haitian nationals from returning safely—are no longer met.”[22] 

Ramos v. Wolf

Following the terminations described above, Sudan, Nicaragua, Haiti, and El Salvador (as Plaintiffs) brought suit against acting Secretary of Homeland Security challenging termination of TPS designations for their home countries under Administrative Procedure Act (APA) and Equal Protection Clause alleging that (1) the Secretary’s actions violated the APA by departing from prior practice without an adequate explanation and (2) the decisions were motivated by a discriminatory animus in violation of the Equal Protection Clause.[23]

The Plaintiffs requested the federal district court enjoin the Department of Homeland Security (DHS) “from implementing or enforcing the decisions to terminate the TPS designations for El Salvador, Nicaragua, Haiti, and Sudan.”[24] And in response, the Department of Justice (DOJ) filed a motion to dismiss arguing that Immigration and Nationality Act (INA) Section 244(b)(5) precluded the court from reviewing DHS’s TPS terminations. Subsequently, in October 2018, the court issued a preliminary injunction enjoining DHS from terminating the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador pending the outcome of the litigation.[25]

The district court found,inter alia, that the plaintiffs demonstrated a likelihood of success on the APA claim and equal protection claim.[26] In regard to the APA claim, the plaintiffs claimed the DHS changed the way in which they evaluated the countries, and now only considered whether the original basis for a country’s TPS designation had continued, without examining more recent events in the country that might warrant a TPS designation.[27] In regard to the equal protection claim, the district court found the Plaintiffs provided sufficient evidence to raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations.[28] In particular, Plaintiffs provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.[29]

In its order, the court determined that the plaintiffs would likely suffer irreparable injury absent a preliminary injunction given their established ties to the United States and the potentially unsafe conditions in their home countries, and that a preliminary injunction would serve the public interest.[30]

On appeal by the Government, the Ninth Circuit Court of Appeals reversed the decision of the district court.[31] The Ninth Circuit held (1) plaintiffs’APA claim was not reviewable pursuant to Immigration and Nationality Act’s bar on judicial review of any TPS designation determination, and(2) plaintiffs’ failed to raise a serious question as to the merits of their equal protection claim.[32] In regard to the APA claim, the court addressed the claim as a challenge to the agency’s new and unexplained practice of refusing to consider intervening events in its TPS decisions.[33] The Court found that because “such a claim fundamentally attacks the Secretary’s specific TPS determinations, . . . it is barred from review by section 1254a. Given that Plaintiffs may not raise their APA claim as a matter of law, the claim cannot serve as a basis for the preliminary injunction and we need not consider its likelihood of success on the merits.”[34] Moreover, in regard to the equal protection claim, the court found the plaintiffs failed in their burden of showing a likelihood of success, or even serious questions, on the merits of their claim that racial animus toward “non-white, non-European” populations was a motivating factor in the TPS terminations.[35]  Accordingly, the court vacated the preliminary injunction protected the plaintiffs under TPS.[36]

The Impact of The Ninth’s Circuit Decision            

The Ninth’s Circuits decision impacts thousands. As of 2016, it was estimated by the Pew Research Center that 195,000 individuals from El Salvador have TPS, 46,000 individuals from, 2,550 from Nicaragua and 450 individuals from Sudan.[37] However, many options still exist to protect those who were previously protected under TPS.

Many individuals with TPS may be eligible to remain in the United States because of “their family ties, the length of time they have been in the United States, or the conditions in their home country.”[38] First, TPS holders with close family members who are U.S. citizens or Lawful Permanent Residents (LPRs) may be eligible for adjustment of status under INA § 245.[39] Second, an individual who fears persecution or who would likely be harmed or tortured in his/her home country may apply for asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).[40] Third, a person can apply for cancellation of removal “under INA § 240A(b) if she is in removal proceedings, has been in the United States for 10 years before being served a Notice to Appear (NTA), has had good moral character for the last 10 years, has not been convicted of certain criminal offenses, and has a U.S.-citizen or LPR spouse, parent or child (under 21 years old and unmarried) who would suffer exceptional and extremely unusual hardship if she is removed from the United States.”[41] Fourth, Salvadorans may be eligible for cancellation of removal or suspension of deportation under the Nicaraguan and Central American Relief Act (NACARA).[42]

Other individuals who have lived in the United States with TPS may be eligible for other forms of relief, depending on their personal circumstances. Potential options include a U Visa[43] or  VAWA Cancellation of Removal or Suspension of Deportation[44] for certain abuse victims, a T Visa for victim of human trafficking,[45] and Parole-in-Place (PIP) for close relatives of U.S. military personnel and veterans living in the United States.[46]

TPScan undoubtedly be a vital safeguard for individuals, but in the coming months, it will be important that individuals impacted by the decision in Ramos v. Wolf know of the other vital safeguards that exist for them. 

[1] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020); Pub. L. No. 101-649, 104 Stat. 4978.

[2] 8 U.S.C. § 1254a(b).

[3] See Lynda J. Oswald, Note, Voluntary Departure: Limiting the Attorney General’s Discretion in Immigration Matters, 85 Mich. L. Rev.152, 157–60 (1986).

[4] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).

[5] 8 U.S.C. § 1254a(b).

[6] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

[7] Designation of Sudan Under Temporary Protected Status, 62 Fed. Reg. 59737-01, 59737 (Nov. 4. 1997). 

[8] See Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg. 59,337-01 (Nov. 3, 1998); 64 Fed. Reg. 61,128-01 (Nov. 9, 1999) (extension and redesignation); 65 Fed. Reg. 67,407-01 (Nov. 9, 2000); 66 Fed. Reg. 46,031-01 (Aug. 31, 2001); 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); 68 Fed. Reg. 52,410-01 (Sept. 3, 2003); 69 Fed. Reg. 60,168-01 (Oct. 7, 2004) (extension and redesignation); 70 Fed. Reg. 52,429-01 (Sept. 2, 2005); 72 Fed. Reg. 10,541-02 (Mar. 8, 2007); 73 Fed. Reg. 47,606-02 (Aug. 14, 2008); 74 Fed. Reg. 69,355-02 (Dec. 31, 2009); 76 Fed. Reg. 63,635-01 (Oct. 13, 2011); 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (extension and redesignation); 79 Fed. Reg. 52,027-01 (Sept. 2, 2014); 81 Fed. Reg. 4045-01 (Jan. 25, 2016).

[9] Termination of the Designation of Sudan for TPS, 82 Fed. Reg. 47,228-02, 47,228 (Oct. 11, 2017). 

[10] Id.

[11] Designation of Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01, 526 (Jan. 5, 1999).

[12] See, e.g., 71 Fed. Reg. at 16,334; 72 Fed. Reg. at 29, 535.

[13] Termination of the Designation of Nicaragua for TPS, 82 Fed. Reg. 59,636-01, 59,637 (Dec. 15, 2017).

[14] Id.

[15] Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14214-01, 14215 (Mar. 9, 2001).

[16] See Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 67 Fed. Reg. 46,000-01 (Jul. 11, 2002); 68 Fed. Reg. 42,071-01 (Jul. 16, 2003); 70 Fed. Reg. 1450-01 (Jan. 7, 2005); 71 Fed. Reg. 34,637-01 (June 15, 2006); 72 Fed. Reg. 46,649-01 (Aug. 21, 2007); 73 Fed. Reg. 57,128-01 (Oct. 1, 2008); 75 Fed. Reg. 39,556-01 (July 9, 2010); 77 Fed. Reg. 1710-02 (Jan. 11, 2012); 78 Fed. Reg. 32,418-01 (May 30, 2013); 80 Fed. Reg. 893-01 (Jan. 7, 2015); 81 Fed. Reg. 44,645-03 (July 8, 2016).

[17] Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654-01, 2654 (Jan. 18, 2018).

[18] Id.

[19] Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476-02, 3477 (Jan. 21, 2010).

[20] See Extension of the Designation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29000-01 (May 19, 2011); 77 Fed. Reg. 59943-01 (Oct. 1, 2012); 79 Fed. Reg. 11,808-01 (Mar. 3, 2014); 80 Fed. Reg. 51,582 (Aug. 25, 2015); 82 Fed. Reg. 23,830-01 (May 24, 2017).

[21] Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648-01, 2650 (Jan. 18, 2018).

[22] Id.

[23] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

[24]. “Federal District Court Enjoins the Department of Homeland Security from Terminating Temporary Protected Status”, Congressional research service, (Mar. 18, 2019). 

[25] Id.

[26] Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1098 (N.D. Cal. 2018), vacated and remanded sub nom. Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).

[38] “After TPS: Options and Next Steps”, Practice Advisory, immigration legal resource center (June 2018).

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

Justice Ruth Bader Ginsburg: Going Beyond U.S. Borders by: Sarah Vinci

Justice Ruth Bader Ginsburg has been called many things: a feminist icon, a trailblazer, a brilliant legal mind, a hero and so on. She fought passionately for what she believed in, breaking down barriers and shattering glass ceilings. Her impact went well beyond the United States borders, as she always made it clear that she believed in the Supreme Court’s use of foreign and international law materials to aid in interpreting U.S. law. 

In Justice Ginsburg’s speech “A decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication,Justice Ginsburg said that “The U.S. judicial system will be . . . poorer . . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.”[1] She also said that the reason a U.S. court could refer to a foreign and international court decision is because “it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”[2] In this speech, Justice Ginsburg noted all of other commentary that Judges are free to consult; “restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs.”[3] She found that, “If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?”[4]

In 2009, Justice Ginsburg spoke at the Mortiz College of Law at Ohio State University where she said, “I frankly don’t understand all the brouhaha lately from Congress and even some of my colleagues about referring to foreign law.”[5] Justice Ginsburg went on to ask, “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?” and suggested that this “hostility to foreign law references is ‘a passing phase.’”[6]

Not only did Justice Ginsburg discuss the importance of using foreign and international law in constitutional adjudication in her speeches, there is also evidence of her using foreign and international law in Supreme Court decisions. For example, in 2003 Justice Ginsburg joined the majority opinion written by Justice Kennedy in the case of Lawrence v. Texas. In this decision, Justice Kennedy writes about how the European Court of Human rights considered a case with parallels to Bowersand the case at issue.[7] Justice Kennedy discusses an adult male residing in Northern Ireland who desired to engage in consensual homosexual conduct but was forbidden by the laws in Northern Ireland.[8] The Court held that “the laws proscribing the conduct were invalid under the European Convention on Human Rights” and that the decision is “at odds with the premise in Bowersthat the claim put forward was insubstantial in our Western civilization.”[9] Not only was this opinion a landmark decision for LGBTQ individuals, but it also proved to be an important decision in regard to the incorporation of international law into the U.S. jurisprudence. 

Additionally, in 2005, Justice Ginsburg joined the majority opinion written by Justice Kennedy in Roper v. Simmons. There, Justice Kennedy held that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. . .”[10] Justice Kennedy also found that “the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”[11] While the case was not decided on an international law basis, Justice Kennedy (as well as Justice Ginsburg who joined the majority opinion) made it clear that international law could (and should) be used as offering persuasive insight.

Furthermore, Justice Ginsburg wrote a concurring opinion in Grutter v. Bollingerwhere she discussed international law. She found that “The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994. . . endorses ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’”[12] Justice Ginsburg reasoned that the majority’s “observation that race-conscious programs ‘must have a logical end point,’ accords with the international understanding of the office of affirmative action.”[13] More specifically, Justice Ginsburg noted the consistency between “the majority’s decision and the principles embraced in international treaties.”[14] This concurrence was powerful for many reasons, one of those reasons being her application of international and comparative law to the interpretation of U.S. law. 

Similarly, in Negusie v. Holder, Justice Ginsburg joined the majority opinion which recognized the role of comparative sources in interpreting the “persecution of others” bar to asylum.[15] The court cites cases from Canada, the United Kingdom, Australia, and New Zealand.[16] A few years later, in the 2015 case Glossip v. Gross,Justice Ginsburg joined Justice Breyer’s dissent regarding the death penalty. Justice Breyer writes that “many nations – indeed, 95 of the 193 members of the United nations—have formally abolished the death penalty and an additional 42 have abolished it in practice.”[17] These are just a few decisions in which Justice Ginsburg either directly or indirectly spoke to the importance of international law. 

There is no question that Justice Ginsburg has been a powerful advocate in legitimatizing the role of foreign and international law materials in deciphering U.S. law. Referencing the Declaration of Independence, Justice Ginsburg has stated that “the U. S. Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility.”[18] She has also quoted Justice O’Connor, who once said that  “other legal systems continue to innovate, to experiment, and to find . . . solutions to the new legal problems that arise each day, [solutions] from which we can learn and benefit.”[19] Justice Ginsburg understood the importance of looking at international law in an increasingly global world, and she helped to open U.S. law to a broader view – one that looks beyond our borders. 

[1] Ruth B. Ginsburg, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication, 1 FIU L. Rev. 27, 28 (2006).

[2] Id.

[3] 34.

[4] Id. at 35.

[5] Barbara Peck, Ginsburg Dazzles During Visit to Moritz, The Ohio State University Law School Magazine(2009).

[6] Id.

[7] Lawrence v. Texas, 539 US 558, 560 (2003).

[8] Id. 

[9] Id.  

[10] Roper v. Simmons,543 U.S. 551, 578 (2005).

[11] Id.

[12] Grutter v. Bollinger, 539 U.S. 306, 344 (2003). 

[13] Deborah E. Anker, Grutter v. Bollinger: Justice Ruth Bader Ginsburg’s Legitimization of the Role of Comparative and International Law in U.S. Jurisprudence, in Essays in Honor of Justice Ruth Bader Ginsburg (Feb. 4, 2013) (on file with the Harvard Law School Library);see also Grutter v. Bollinger, 539 U.S. 306 (2003). 

[14] Id.

[15] Negusie v. Holder, 555 U.S. 511, 515 (2009).

[16] Id.seee.g., Canada v. Asghedom, [2001] F.C.T. 972, ¶ 28 (Can.Fed.Ct.); Gurung v. Secretary of State for Home Dept., [2002] UKIAT 4870, ¶¶ 108–110 (U.K.Immigr.App.Trib.); SRYYY v. Minister for Immigration & Multicultural & Indigenous Affairs, [2005] 147 F.C.R. 1, ¶¶ 126–128 (Austl.Fed.Ct.); Refugee Appeal No. 2142/94, pp. 12–14 (N.Z. Refugee Status App. Auth., Mar. 20, 1997).

[17] Glossip v. Gross, 576, U.S. 863, 944 (2015). 

[18] Ruth B. Ginsburg, supra note 1. 

[19] Id. 

COVID-19 Impact on Developed and Developing Nations by: Bridget Sheerin

The COVID 19 pandemic has had lasting effects on the economies of low, middle, and high-income countries. Despite the pandemic being around for less than a year, its impact will last for many years to come. This blog post will examine the background of COVID 19, how COVID has impacted the economies of various countries, and how countries have attempted to rectify economic damage that has resulted from COVID. 

I. Background

COVID 19 began around November of 2019 and is believed to have originated in Wuhan, China.[1]The virus is believed to have been transmitted from an animal source and is now rapidly spreading between humans via airborne droplets.[2] The virus has spread globally since November of 2019 and has infected millions of people.[3] COVID can vary in its intensity, ranging from asymptomatic to severe pneumonia and death.[4] Pertinent statistics relating to the serious of COVID include:

[T]he incidence of respiratory failure in Wuhan was 54% overall; of those patients who died, 98% had respiratory failure compared to 36% of those who survived. All of those who succumbed had sepsis, and 93% had acute respiratory distress syndrome (ARDS), while 42% of survivors had sepsis and 7% had ARDS. Also noted in this Wuhan cohort was a 48% prevalence of comorbidities in those who died, most commonly hypertension, diabetes mellitus, and coronary artery disease. Increasing age was also associated with increased risk of death. Overall, in-hospital mortality rate was 28%, and for those requiring medical ventilation, it was 97%.[5]

II. Impact on Low Income Countries 

Low income developing countries (LIDCs) are in a very difficult position as a result of the COVID 19 pandemic.[6] Without international aid for LIDCs it will be difficult for these countries to prosper in the future.[7] Since the beginning of the COVID 19 pandemic, LIDCs have been impacted by a decrease in exports, lower export prices for many goods most importantly oil, less influx of capital, and a large decrease in tourism.[8] For example, “remittances, for example, that exceeded 5 percent of GDP in 30 (out of 59) LIDCs in 2019. Between April and May, they fell by 18 percent in Bangladesh, and by 39 percent in the Kyrgyz Republic, compared to the previous year.”[9] Such economic repercussions will likely be felt for many years to come. 

One major issue for LIDCs that has resulted from the COVID 19 pandemic is food shortages.[10] According to a recent survey, conducted across 20 African countries, over 70 percent of individuals in these countries are at risk of running out of food if a lockdown were to last more than two weeks.[11]Another large issue that may occur in LIDCs as a result of the COVID pandemic is “scarring” which is “the permanent loss of productive capacity.”[12] Scarring has resulted after previous pandemics and leads to a decrease in health and education, a depression of future earnings, a decrease in production, and economic debt.[13] An example of scarring was shown in Sierra Leone after the 2013 Ebola pandemic when the country did not return to its pre-crisis economic growth path.[14] If scarring results from the COVID pandemic it would result in major setbacks in global Sustainable Development Goals and greater global inequality.[15]

In order to avoid a spike in COVID cases, which would thus lead to a food shortage and scarring, researchers recommend social distancing and contact tracing.[16] “As a broad-based containment becomes difficult to sustain, LIDCs should transition to more targeted measures, including social distancing and contact tracing­– Vietnam and Cambodia are good examples. Policy support should focus on supporting the most vulnerable, including the elderly, and on limiting the health crisis’s long-term fallout.”[17]

III. Impact on High Income Countries

High Income Countries (HICs) have generally responded to COVID 19 with similar tactics.[18] First, HICs entered a suppression phase typically referred to as “flattening the curve.”[19] The goal of phase one is to avoid an overflow of COVID patients in the hospitals, which was seen in Wuhan when the virus began.[20] The next phase commonly followed by HICs is maintaining the initial suppression.[21] Maintenance of the initial flattening of the curve has been done through continued social distancing, identifying cases quickly, and isolating such cases.[22] While these methods of decreasing COVID outbreaks have found success in HICs the next question is whether such methods would be successful LIDCs. 

IV. HIC COVID response in LIDCs

Assistance from the international community will be key to preventing vast COVID outbreaks in LIDCs. Key aspects of support include:

(1) guaranteeing essential health supplies, including cures and vaccines when they are discovered; (2) protecting critical supply chains, especially for food and medicines; (3) avoiding protectionist measures; (4) ensuring developing economies can finance critical spending through grants and concessional financing; (5) ensuring LIDCs’ international liquidity needs are met, which requires international Financial Institutions to be resourced adequately; (6) reprofiling and restructuring debt to resort sustainability where needed, which, in many cases, may require relief beyond G20/Debt Service Suspension Initiative; and (7) keeping sight of the United Nations’ SDGs, including by reassessing needs which the  crisis subsides.[23]

The International Monetary Fund has committed $10 billion interest-free loans for LIDCs fighting COVID.[24] Also, the World Economic Forum has created a COVID action plan in order to engage public and private partnerships in taking action in regards to the pandemic.[25] In addition to financial aid, it is recommended that Nongovernmental organizations (NGOs) contribute with additional support.[26]  For example, “the Lifebox Foundation, partnering with Smile Train and Gradian Health Care, has secured 1650 pulse oximeters for distribution to countries most in need . . . . Massive efforts will be needed to improve oxygen availablility.”[27] In order to ensure against massive fallout for LIDCs as a result of COVID 19 the previously mentioned suggestions should be put in place as soon as possible.

[1] Will the Higher-Income Country Blueprint for COVID-19 Work in Low-and Lower Middle-Income Countries?, GLOBAL HEALTH: SCIENCE AND PRACTICE(Oct. 12, 2020),

[2] Id. 

[3] Id. 

[4]  Id.

[5] Id. 

[6] COVID-19: Without Help, Low-Income Developing Countries Risk a Lost Decade, IMF BLOG (Oct. 12, 2020),

[7] Id. 

[8] Id. 

[9] Id. 

[10] Id. 

[11] Id. 

[12] Id. 

[13] Id. 

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] The COVID-19 Pandemic: Effects on Low- and Middle-Income Countries, Anesthesia & analgesia(Oct. 12, 2020),

[19] Id. 



[22] Id. 

[23] IMF Blog, supra note 6. 


[25] Id. 


27 Id. 

Mexico Investigates Forced Sterilizations in US Detention Centers by: Michelle Artiles

Recent news has pointed to alleged forced hysterectomies of women in US detention centers.[1] Foreign Minister of Mexico, Marcelo Ebrard, is investigating such accusations and is likely to seek recourse on behalf of the victims if the investigation finds credible evidence. There are numerous agencies that focus in an effort to combat forced sterilization, including but not limited to the Office of the High Commissioner of Human Rights, United Nations Agency for Gender Equality and the Empowerment of Women (UN Women), United Nations Children Fund (UNICEF), and the World Health Organization (WHO).[2] These agencies cite a number of treaties and declarations in support of their efforts to put an end to forced, coercive, and otherwise involuntary sterilization. Some of these are the United Nations Declaration on the Rights of Indigenous People, the Convention on the Rights of the Child, and Article 7 of the Rome Statute of the International Criminal Court.[3] Mr. Ebrard is likely to rely on many of these to bring these claims against United States officials. The main issue with a lot of these international documents is that they are not binding, and therefore even if a country has signed on and ratified the agreement, it is very hard to enforce and ultimately seek recourse. Because of this, Mexico is likely to rely on legal precedent to bring claims against the United States. A noteworthy case regarding whether or not Mexico can sue on behalf of their citizens in the United States is Pfizer Inc. v. Government of India.[4] In Pfizer, the Supreme Court held that foreign nations were entitled to sue the United States’ entity Pfizer, despite the fact that respondents were foreign.[5] The case regarded an alleged violation of antitrust laws, and the Court’s rationale affirmed that foreign nations had standing to sue regardless of the fact that they were sovereign.[6] Here, the Sherman and Clayton Acts each provided that the word “person” shall be deemed to include corporations and associations.[7]

In contrast, a United States District Court dismissed a claim because the federalism justifications that might permit states to bring suit parens patriae were absent.[8] In Estados Unidos Mexicanos v. DeCoster, Mexican immigrant workers and the nation of Mexico brought a civil rights action against their employer.[9] The employer, a Maine private entity, was accused of discriminating against and treating its employees unfairly.[10] The court refused to extend the doctrine of parens patriae to a foreign nation absent a clear indication of intent to grant such standing, by the United States Supreme Court or by the other two branches of government.[11] Ultimately, the court held that the plaintiffs in this suit, could find potential relief under the executive branch through the North American Free Trade agreement or other labor agreements.[12]

Parents patriae, or “parent of the nation”, is a common law doctrine that allows a state to protect “quasi-sovereign interests.”[13] The doctrine is a basis for state standing, and allows a state to sue on behalf of its citizens in the interest of the “well-being of its populace.”[14] The interest must be recognized by the Supreme Court.[15] Here, the government of Mexico may be able to sue on behalf of the individuals who were forced to undergo sterilization procedures while in the custody of US officials, under the guise that a recognized interests is a “state’s effort to secure its citizens ‘from the harmful effects of discrimination.’”[16]

The women who suffered the forced sterilizations can bring suit in the United States under the Alien Tort Statute. The Alien Tort Statute, or ATS, is a federal law adopted in 1789 that gives federal courts jurisdiction to hear lawsuits by non-U.S. citizens for torts committed in violation of international law.[17] International law has expanded to include the protection of human rights, and ATS has enabled survivors of egregious human rights abuses to bring suit against the perpetrator in the United States.[18] Although ATS provides standing to sue, a foreign national suing US government officials will likely face significant legal challenges.[19] Courts have often rejected suits against US officials for human rights violations on grounds of political question doctrine or sovereign immunity.[20]

Sexual violence, which includes forced or coercive sterilization, is considered an international crime. The women who have suffered through these procedures, can sue under a number of international agreements, including the Fourth Geneva Convention, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[21] The Rome Statute of the International Criminal Court delineates that “enforced sterilization refers to forcibly sterilizing an ethnic group as part of a systematic attack against that ethnic group” is a crime against humanity.[22] Ultimately, the women in the detention center have a number of ways to ensure recourse against US officials, but do face significant challenges if suing in United States courts. 

[1]Rachel Treisman, Whistleblower Alleges ‘Medical Neglect,’ Questionable Hysterectomies of ICE Detainees, NPR, Sept. 16, 2020,

[2]International Human Rights Clinic, Forced Sterilization, United Nations,


[4]Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978). 




[8]Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000). 





[13]Kenneth Juan Figueroa, Immigrants and The Civil Rights Regime: Parents Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 Colum. L. Rev.408 (2002). 




[17]The Alien Tort Statute, The Center for Justice and Accountability, 




[21]Sexual Violence as International Crime, Human Rights Watch,’s%20definition%20of%20crimes,sexual%20violence%20of%20comparable%20gravity.%22.

[22]Forced Sterilization, Legal Information Institute, Cornell Law School,,of%20the%20International%20Criminal%20Court.