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Judge to hold hearing on Arpaio, Taitz roles in immigration suit

The main front in the legal war over President Barack Obama's immigration policies may have moved to the Supreme Court, but a federal judge in Texas isn't letting that stop him from taking up a curious side issue in the case: whether birther Orly Taitz and controversial Arizona Sheriff Joe Arpaio are entitled to join the fight.

Both sides in the lawsuit that halted Obama's latest round of immigration moves nearly a year ago have told U.S. District Judge Andrew Hanen they want the case put on ice until the Supreme Court announces whether it will take up the major executive power dispute — a decision expected as soon as next month.

In a little-noticed order earlier this month, Hanen set a hearing for Tuesday afternoon on the proposal to stay the case. However, he went on to say he wanted the parties to address whether to allow several other individuals to intervene in the litigation, among them Taitz and Arpaio.

"The Court ... wants the parties and those who have expressed an interest in becoming parties to be ready to address the extent to which the intervenors are going to participate in this matter," Hanen wrote.

The judge's call to dive into the issue and for the proposed intervenors or their attorneys to show up in person has left some immigrants' rights advocates suspicious.

"You've got a joint motion to stay the merits. ... It's difficult to understand why this has to be taken up right now as the Supreme Court is considering it," said David Leopold, an Ohio-based immigration attorney and past president of the American Immigration Lawyers' Association. "It has the potential of unnecessarily adding more politics to a case that's already politically charged."

Last month, a split three-judge appeals court panel sided with Hanen and refused to overturn his injunction against Obama's new Deferred Action for Parents of Americans initiative and his expansion of the Deferred Action for Childhood Arrivals program. However, the same panel voted unanimously to uphold the rights of three unnamed illegal immigrants to intervene in the case to protect their interests.

Fifth Circuit Judge Jennifer Walker Elrod gave various reasons for the ruling and noted that one reason the women cited was that the federal government may have alienated Hanen by issuing about 100,000 permits despite the injunction. The feds have blamed the issuances on bureaucratic foul-ups and have insisted the government did not intend to mislead the court.

Hanen said in his order (posted here) that he is "particularly concerned about the possible applicability of [the appeals court ruling] to parties beyond the three Jane Does discussed therein." He went on to list Taitz, Arpaio and several other people who sought to join in the high-profile court battle.

Taitz and Arpaio have previously struck out with similar efforts.

In July, Hanen threw out a lawsuit Taitz brought Obama, Homeland Security Secretary Jeh Johnson and others over various aspects of federal immigration policy. The following month, a federal appeals court in Washington upheld the dismissal of a similar case in which Arpaio challenged the legality of Obama's moves to make millions more immigrants who entered the country illegally, or overstayed visas, eligible for quasi-legal status and work permits.