The president’s executive orders seeking to restrict immigration from selected countries have turned our immigration system into a partisan battleground. But despite President Donald Trump’s heated rhetoric about refugees and immigrants, there are some things on which reasonable people on both sides of the debate can agree. The vast majority of migrants, be they refugees, guest workers, or permanent immigrants, pose no threat, and there is no serious doubt that some immigration is economically beneficial.
It is also true that we do face challenges in screening out those few who do pose a threat — however much the president overstates the risks. After all, no vetting system is perfect.
The problem of admitting foreigners to the country is, at root, an information problem, not unlike those faced by banks thinking of loaning money, or firms deciding whom to hire. In those contexts, the potential borrower or worker has private information about their abilities and inclinations — information that the banks or companies would like to know, but cannot know with certainty. Similarly, in admitting foreigners we cannot be sure in advance that a person is really part of the vast pool of desirable entrants, or instead has hostile intentions.
In the context of guest workers, can we be confident the person will leave the country after their visa expires? Do we know that a refugee is not secretly harboring terrorist sympathies? The officers doing the screening of potential entrants are unlikely to be able to elicit such information from interviews. Furthermore, home state governments may not have reliable information themselves. Indeed, there may be an inverse relationship between the quality of record-keeping in a nation and the likelihood that it is a source of refugees. Ultimately it is only the immigrants themselves who have full information about their trustworthiness.
There’s another complication. Even if screening were 100 percent effective, people’s intentions and positions can change. A guest worker who originally planned to return to her home country may face altered personal circumstances and seek to stay. More grimly, a member of an immigrant community might become alienated once in the United States, become associated with similarly disgruntled people and begin to engage in hostile activity. We hasten to add that statistical evidence shows that this is extraordinarily rare. Still, alienated immigrants, however few in number, make up a larger proportion of bad actors than so-called Trojan Horse immigrants and refugees.
When you reframe vetting as an informational challenge, it opens the door to novel solutions. Our proposal is something we call a “trust circle” — a concept that borrows from cutting-edge ideas that some lenders in the developing world are already using to judge the reliability of people lacking credit records. The key idea is to make use of information from those who can best assess the likely behavior of entrants: members of immigrant communities themselves.
Here’s how it would work: To be admitted into the US, people would have to apply as a small group. Once inside the country, all migrants — except for those staying for a very short time — would by default be subject to periodic bureaucratic requirements such as in-person registration with immigration authorities and thorough security screening at every visa renewal date.
This would be a change from current practice: There is, at present, intensive screening of people at the moment of admission or as part of a proposed change in visa status (or a request to travel abroad), but relatively limited ongoing monitoring of admitted persons. Our idea is that some regular check-in with immigration officials could be required, in the same way that certain undocumented immigrants already must do, and as immigrants from certain countries were required to do from 2003 to 2011.
If all the people in a trust circle remained in good standing for an extended period, members of that circle would begin to receive exemptions from some requirements, making their lives much easier. As the members of the circle continued to pass periodic checks, those checks would decrease further, until eventually the monitoring could be eliminated.
Immigrants and refugees would have incentives to form reliable “circles of trust” — and to make sure they stay reliable
On the other hand, if anyone within a trust circle ever became involved in hostile or criminal activities, or raised reasonable suspicion of doing so, every member of the trust group would summarily lose exempt status, once again becoming subject to the default onerous set of bureaucratic procedures and costs.
Consider, for example, a set of five refugees from Iraq seeking asylum, who apply and are admitted as a trust circle. Each person would have to meet with Homeland Security personnel quarterly, submitting documents showing their assets and employment status, answering a questionnaire about their activities since the last meeting, and potentially undergoing biometric identification checks. If all members of the group went through the first year without committing a crime or otherwise coming to the attention of the authorities for violating the law or missing check-ins, the meetings would decline in frequency and intrusiveness. After five years, the checks would be over. If any member violated the terms of entry into the United States, however, all the other members would be subjected, for the full five years, to the more intensive regime of their early period in the country.
If one member committed a serious crime and the others were shown to know about it in advance, they could be deported. But timely reporting would exempt innocent members of the circle from such punishment, as would genuine ignorance of the wrongdoing. Of course, establishing that someone was truly ignorant would itself require some investigation, a process that itself can be unpleasant, providing yet another incentive to keep tabs on members of one’s circle. Willful ignorance — such as avoiding members of the trust circle who one knows likely to transgress in order to claim ignorance — would be punished. It would be the responsibility of all trust circle members to check on each other periodically.
As the name suggests, trust circles would create incentives for refugees to seek out reliable partners when putting together group for entry. An honest applicant, knowing that she will be collectively responsible for others, would try to choose people she knows are well intentioned. Trust circles would therefore tend to consist of self-selected, similarly minded individuals, often from the same neighborhood or with family ties.
Once in the United States (or other host country that adopts this method of screening), members of a trust circle would have incentives (legal and otherwise) for monitoring their peers in order to help prevent them from transgressing the law and the terms of their stay. The system we’re imagining both relies on and deepens social capital. Trust circles provide incentives to care for, and talk sense into, members of one’s circle who may be experiencing bad times or undergoing particularly damaging forms of exclusion or alienation.
It’s a concept with a Nobel Prize-winning pedigree
Our approach borrows from the widely-admired Grameen Bank in Bangladesh, which similarly made use of small groups to encourage repayment of microfinance loans with great success. The bank reached poor people who otherwise had no access to credit markets, and made them collectively responsible for each other’s loans. If any member defaulted, the others would have to pay that person’s portion of the loan back — or else possibly lose borrowing privileges in the future.
Repayment rates were much higher among group members than among people in the same socioeconomic status, in the general credit markets, who were not part of a group. The success of the program led to the spread of the Grameen model all around the world — and to the bank and its founder, Muhamed Yunus, sharing the Nobel Peace Prize in 2006.
Of course, not every potential migrant knows reliable people in the same situation, and so might have trouble forming a trust circle. In fact, this is likely to be the case with some of the most vulnerable refugees: widows, orphans, or those fleeing sexual violence or abusive families. Such people will be at a relative disadvantage to others in that they will be forming their trust circles with strangers.
But if there is little social capital at the start of such a situation, the process might well build some. Members of a trust circle would be required to meet regularly after migrating (if they wind up in the same place), or at least to communicate regularly (if they do not). To some extent, these new trust circles might create a social network for those who lack one.
One might object that a “cell” of “bad hombres” could form a trust circle, and fail to report on each other. In such a case, our approach has the advantage that it multiplies opportunities for detection through the default screening procedures, which would be more intense than current practices. Detecting one bad apple might raise a red flag about all members of a group of applicants, leading to rejection, deportation, or at a minimum heightened scrutiny.
The legal world tends to frown on “collective responsibility,” but the concept remains useful when applied carefully
Our proposal — a more detailed version of which can be found in this academic paper — leans on a version of collective responsibility, a notion that has something of a bad name in modern law, although it is a legal device that dates back to ancient times.
Today, we rightly tend to decline to punishing the innocent just because they are affiliated in some way with a guilty person. Despite this discomfort, however, we continue to use collective responsibility when we think it will incentivize better monitoring of bad behavior: the idea of a corporate crime is one example, as is the doctrine of vicarious liability. Those legal concepts open the door to employers being required to compensate people for injuries caused by their employees. Collective responsibility can both deter bad behavior and increase inter-group ties.
International law would provide some limitations on punishments under our proposal: No one could be deported to a country in which they are likely to be tortured, for example. But while there are some limitations on collective punishment in the context of war, nothing we are proposing would violate those rules or general norms of proportionality — the idea that punishment must be calibrated to fit the seriousness of the offense. (Economic sanctions against a country are one form of collective responsibility that’s legal under international law.)
In the immigration context, some of the objections to collective responsibility can be mitigated because the people subject to it would be voluntarily opting in to the regime, and they’d have a role in choosing those they would be affiliated with. And if one’s affiliates commit a bad act that one did not and could not have known about, there would be no punitive process other than temporary heightened scrutiny.
Note that current immigration policies already lead many to suffer because of the actions of a small number of people: Overall policy becomes more restrictive when one or two people commit a horrific crime.
In a variety of situations, from mortgage applications to hiring decisions to refugee admissions, perfect screening is never possible. But the United States would be worse off if banks did not extend credit, firms did not give people jobs, and migration were fully halted. Our proposal taps into a source of information that would complement vetting procedures already in place. Common social and cultural bonds in migrant communities mean that insiders are better able to screen out those with bad intentions and to observe changes in the speech and behavior of their peers than are government officials.
In a sense, the debate about immigration divides those who think that better vetting is possible in principle, from those who think the task is hopeless. We think it can be improved.
Holding a group accountable for each of its members may conflict with current norms of liberal individualism, but this approach has been enormously successful in other realms, and it would likely be viewed as superior to current practices from the point of view of its greatest beneficiaries — some of whom now face indefinite stays in refugee camps.
Tom Ginsburg is the Leo Spitz professor of law at the University of Chicago Law School. Alberto Simpser is associate professor of political science and the Center for Economic Research at ITAM in Mexico City. Both are on Twitter: @tomginsburg and @AlbertoSimpser.
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