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Court denies GOP states’ effort to continue Title 42 border expulsions pending appeal

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(WASHINGTON) — A federal appeals court on Friday denied an effort by several Republican-led states to continue a Trump-era public health order to expel migrants immediately at the border.

U.S. District Judge Emmet Sullivan had previously set a Dec. 21 deadline to end the protocols. The decision from the appeals court in Washington, D.C., keeps that deadline for now, but the states are expected to appeal to the U.S. Supreme Court.

Responding to the appeals court decision, White House Assistant Press Secretary Abdullah Hasan underscored the preparations the administration has made to manage the border once Title 42 ends.

“To be clear: the lifting of the Title 42 public health order does not mean the border is open,” Hasan said in a statement. “Anyone who suggests otherwise is doing the work of smugglers spreading misinformation to make a quick buck off of vulnerable migrants.”

“We will continue to fully enforce our immigration laws and work to expand legal pathways for migration while discouraging disorderly and unsafe migration,” Hasan said. “We have a robust effort underway to manage the border in a safe, orderly, and humane way when Title 42 lifts as required by court order. Instead of playing political games, Republican officials should provide the funding the President requested for border security and management, and pass the comprehensive immigration reform measures he proposed so we can finally have a modernized immigration system that works.”

Arizona Attorney General Mark Brnovich, one of the Republicans who sought to intervene in the Title 42 case, confirmed to ABC News Saturday they will appeal to the Supreme Court.

“We will appeal this ruling to the U.S. Supreme Court on Monday,” Brnovich said in a statement. “I will continue to fight for the rule of law and to secure our border every minute I’m still Attorney General.”

The policy known as Title 42 started in the early weeks of the global pandemic and has since been used to expel migrants from the southern border more than 2.4 million times. Due to the rapid nature of the expulsions, which usually take place in a matter of hours, access to asylum and other humanitarian protections is sharply curtailed.

The ACLU and other civil liberties advocates have been waging a legal battle against the order arguing it violates federal and international law.

“These states are just being hypocritical,” ACLU lead attorney Lee Gelernt told ABC News. “They have been fighting to end COVID restrictions everywhere since the beginning. And now all of a sudden, they want a public health restriction solely when it comes to asylum seekers. I think the real game here is that they’re trying to close the border.”

The decision comes as the Department of Homeland Security implements new measures to apprehend and process migrants across the southwest. Nearly 1,000 Border Patrol staff have been hired specifically for processing along with 2,500 additional contractors and personnel, the department said this week. DHS has also stood up 10 new tent-like facilities since President Joe Biden took office.

Critics of the administration say the efforts are not enough to handle the historic level of migration into the U.S. seen over the past year. Meanwhile, those who support the end of Title 42 protocols say its part of the problem for bottling up needed humanitarian relief at the border.

El Paso saw an influx of migrants in recent days with U.S. Border Patrol making 2,264 apprehensions on average per day this month, according to a CBP official. That average is up from the already elevated level of 1,700 to 1,800 per day.

There are half a dozen major sectors along the southwest border and 2,200 in one area is unusually high. USBP made a record 2.2 million apprehensions along the southern border this past budget year. Based on the latest available data from October, USBP is on track to meet or exceed that total with more than 204,000 apprehensions that month.

ABC News’ Sasha Pezenik contributed to this report.

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