Under the Flores settlement, as it became known, UAC were exempted from ‘expedited removal’ — a newly created process in 1996 that allowed for removal of non-asylum seekers without a court hearing. Instead, it required the government to ‘ensure the prompt release of children’ and place them ‘in the least restrictive setting appropriate’ pending a court hearing. Parents, legal guardians and adult relatives of the UAC were the preferred appropriate settings designated by the government.
In 2002 and again in 2008, this legal framework was codified and clarified with very little resistance in Congress. At that time, few unaccompanied children were crossing illegally despite these relatively lenient policies. In 2008, Congress actually liberalized the Flores agreement considerably by making releases much less discretionary and moving temporary detention to Health and Human Services prior to the children being settled with their families or in foster care.
When it came up for a vote, 183 Republicans voted for the 2008 law. In fact, even Rep. Bob Goodlatte R-Va., the tough chairman of the House Judiciary Committee who just held a hearing entitled ‘An Administration-Made Crisis: The Border Surge of Unaccompanied Alien Minors,’ voted for the current policy regime.
The 2008 bill was crafted by both the Republican and Democratic Judiciary Committee staff and was so uncontroversial that the final version passed by unanimous consent in the Senate and a voice vote in the House. It was then signed into law by a Republican president.