Gorsuch and Sotomayor Unite Against DOJ Handling of Immigrant Case

Supreme Court Justice Neil Gorsuch, appointed by President Donald Trump, has joined liberal Justice Sonia Sotomayor in expressing concerns over the federal government's prosecution of a Mexican national.

The unusual alliance emerged as the Supreme Court declined to hear an appeal from Jesus Herrera-Salazar, who argued that his second prosecution for being found unlawfully in the United States violated the Fifth Amendment's protection against double jeopardy. While the Court opted not to take the case, Sotomayor issued a separate statement, joined by Gorsuch, highlighting what they described as serious constitutional problems with the government's actions.

"From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson's choice," Sotomayor wrote. "In the Government's eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law."

The two justices questioned how the government could prosecute someone for remaining in the country when a federal court had previously prohibited him from leaving the Eastern District of Oklahoma following his initial conviction. They characterized the situation as a "constitutional absurdity."

This is not the first time Gorsuch and Sotomayor have found common ground on constitutional protections against government action. In November 2024, they jointly questioned whether homeowners should be compensated when police destroy private property during law enforcement operations. Months later, they again united to raise concerns about warrantless misdemeanor arrests. In all these instances, the Court ultimately declined to hear the cases, but the justices used separate statements to emphasize constitutional questions they believed warranted attention.

The case in question involved Herrera-Salazar, who was indicted in 2020 for being found in the U.S. after a prior deportation, a violation of federal immigration law. After pleading guilty and serving a prison sentence, he was placed on supervised release with explicit restrictions preventing him from leaving the Eastern District of Oklahoma without authorization. While under these restrictions, he was encountered by police in Heavener, Oklahoma, and subsequently charged again under the same statute.

A jury convicted Herrera-Salazar on the second charge, leading to another prison sentence. He challenged this conviction, arguing that the government was prosecuting him twice for the same continuous period of unlawful presence. The U.S. Court of Appeals for the 10th Circuit rejected this argument, ruling that the offense is completed upon discovery of unlawful presence and that subsequent discoveries can support separate prosecutions.

Sotomayor and Gorsuch, however, questioned this reasoning, referencing Supreme Court precedent that bars prosecutors from evading double-jeopardy protections by dividing a continuous crime into separate periods. Their concern focused on whether the government could repeatedly prosecute Herrera-Salazar for remaining in the U.S. without evidence of a new unlawful reentry, especially given that his supervised release conditions prevented him from leaving Oklahoma.

Sotomayor noted that under the government's interpretation, separate charges could theoretically have been brought against Herrera-Salazar for each day he remained imprisoned after his first conviction.

The justices agreed with the Court's decision not to review the case, with Sotomayor expressing hope that such circumstances would not recur, particularly as Herrera-Salazar had already been removed from the United States. Their statement, formally known as a statement "respecting the denial of certiorari," served to publicly highlight constitutional concerns and advise lower courts against similar issues in the future.