Sotomayor, Gorsuch condemn immigrant’s prosecution, citing ‘constitutional absurdity’

A liberal and conservative Supreme Court justice joined forces on Tuesday to condemn what they said were “serious constitutional problems” in the government’s prosecution of a Mexican national for illegally reentering the country.

Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, said it was difficult to see how Jesus Herrera-Salazar’s treatment squared with double jeopardy protections.

“Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning,” Sotomayor wrote.

The Supreme Court turns away the vast majority of requests to take up cases, and it did so with Herrera-Salazar’s on Tuesday alongside dozens of other appeals.

Sotomayor and Gorsuch agreed with their colleagues they shouldn’t have taken up the case, noting that Herrera-Salazar was already deported. But the duo cautioned they hoped the facts of his case “are anomalous.”

The government prosecuted Herrera-Salazar twice after saying he illegally crossed the border on “numerous occasions.”

First, he was found in Texas in 2020 and sentenced to prison time. Afterward — while still on supervised release and required to remain on U.S. soil under law enforcement’s watch — he was found in Oklahoma. He was convicted of illegal reentry once again.

Herrera-Salazar has served both sentences and was removed from the country in 2024, court documents indicate.

But he had continued to argue the subsequent round violated the Fifth Amendment’s protections against prosecutions “for the same offence to be twice put in jeopardy of life or limb.”

The 10th U.S. Circuit Court of Appeals found no violation, saying each of his convictions were for separate offenses.

It’s not the first time that Sotomayor, an appointee of former President Obama, and Gorsuch, President Trump’s first Supreme Court appointee, have teamed up to speak out publicly about a criminal defendant’s treatment.

“When a defendant is convicted of a crime that involves continuous, uninterrupted conduct, our precedents and the logic of the Double Jeopardy Clause strongly suggest that the Government is barred from charging that defendant with the same continuous crime for a second time simply by focusing on a different time marker,” Sotomayor wrote, joined by Gorsuch.