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Under the Homeland Security Act of 2002, Congress transferred the care and custody of unaccompanied minor immigrants from the former Immigration and Naturalization Service (INS) to HHS.
In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act expanded the responsibilities of HHS, and required that the children must be placed "promptly" into the "least restrictive setting," that is in the best interest of the child. The act, a bipartisan effort that expanded on earlier efforts to protect unaccompanied children, was signed by George W. Bush shortly before he left office.
The law mandates that children be allowed to retain legal counsel and petition for the right to stay in the U.S. at an immigration hearing. Due to an overwhelming backlog in immigration cases -- there are currently over 360,000 pending cases pending, according to data gathered by the Transactional Records Access Clearinghouse at Syracuse University – the children often wait months, or years, for a judge to hear their case.
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