The three-judge panel did not rule on Tuesday, but they asked some tough questions, including whether the government gave up its right to appeal by entering into a consent decree regarding these types of arrests to begin with.
The three appellate court judges, two nominated by former President Joe Biden and one by President Donald Trump, listened but also seemed to provide an inkling of where they stand when it comes to the potential release of hundreds of immigrants from ICE custody.
"We have a consent decree. We have the parties entering into it, and the district court is merely enforcing it," said Judge John Lee.
"He just determined they were members of a potential class and released them. I don't even know where that came from. Do you?" said Judge Thomas Kirsch.
Tuesday's hearing took place after the 7th Circuit put the brakes on a lower court's decision ordering the release on bond of hundreds of immigrants detained in the Chicago area between June 11 and Oct. 7.
Judge Jeffrey Cummings found that the federal government violated a consent decree that forbids immigration authorities from conducting warrantless arrests without sufficient probable cause. The government's position is, in part, that the consent decree was extended without basis, and those in custody should not be released. Tuesday's hearing centered on the parties' interpretation of the statutes.
"We obviously think the district court has ample authority to do what it did," said Karen Zwik with the National Immigrant Justice Center.
According to the initial court order, up to 614 people might qualify for release on bond. But in reality, that number is a lot closer to 440.
This comes after the government determined that 75 have been deported, 33 have already been released, and 57 were determined to be a safety risk and are not subject to release.
Those numbers, however, are from last month, when the stay to Cummings' initial order came down. In court Tuesday, government attorneys admitted that they do not have updated figures.
"This is the whole reason we sought the interim relief, is they are rapidly forcing people to take either voluntary departure or removal, so that there's no one left when we get to the remedies," said Mark Fleming with the National Immigrant Justice Center.
Attorneys for the plaintiffs on Tuesday said there are at least 1,200 more people arrested after Oct. 7 who could eventually qualify for release if the appellate court allows Cummings' order to stand. But a lot has to go their way for that to happen. The government made it clear on Tuesday that even if the appellate court rules against them, they will be taking their case to the Supreme Court next.