A panel of federal appeals court judges are grappling over whether to transfer Rümeysa Öztürk, the Tufts graduate student from Turkey, from a U.S. Immigration and Customs Enforcement detention facility in Louisiana to Vermont.

Tuesday’s hearing was about whether the the transfer, ordered by a federal judge in the state two weeks ago, should move forward ahead of a hearing about the legality of her arrest and detention. The judges are also considering whether to consolidate hearing Öztürk’s case and the case around Mohsen Mahdawi, a Columbia University student detained at his naturalization interview who has since been released in Vermont.

The panel tried to discuss First Amendment issues that are the root of Öztürk and Mahdawi’s detentions: both had expressed pro-Palestinian sentiments during campus activity, and had their immigration papers (Öztürk’s visa and Mahdawi’s green card) revoked as a result of their speech.

“Does the government contest that the speech in both cases was protected speech?” asked U.S. Circuit Judge Barrington D. Parker Jr.

“Your Honor, we haven’t — we have not taken a position on that,” said Deputy Attorney General Drew Ensign, who represented the government. “Our position is that the jurisdictional bars, you know, prevent adjudication of that.”

“Help my thinking along — take a position,” Parker said.

Ensign declined, telling the judge he doesn’t have the “authority to take a position on that right now.”

Öztürk was detained by plainclothes ICE agents in Somerville on March 25. She was transferred to New Hampshire, Vermont, and finally Louisiana in a period of less than 24 hours, without access to an attorney.

At Tuesday’s appeals court hearing, an attorney for the government disclosed for the first time that the warden of the Vermont ICE facility was the custodian at the time attorney Mahsa Khanbabai filed a case for Öztürk in Massachusetts, which has since been transferred to Vermont.

In an effort to dismiss the case, the government argued Öztürk’s attorneys needed to name the warden as the defendant, which they didn’t due to lack of communication with their client for nearly 30 hours.

The three-judge panel in the New York-based circuit court is comprised of Alison J. Nathan, Susan L. Carney and Parker Jr.