Supreme Court Justices Sonia Sotomayor and Neil Gorsuch joined forces to issue a statement highlighting the “constitutional absurdity” of an immigration case that the high court declined to take up Tuesday.
Sotomayor, an Obama appointee, and Gorsuch, a Trump appointee, hail from opposite ends of the Supreme Court’s ideological spectrum. But the pair, which agreed 62% of the time during the most recent term, has teamed up in the past to express their concerns about cases and call for the consideration of specific issues in future litigation.
The justices did agree with the Supreme Court’s decision to deny review for Jesus Herrera-Salazar’s case, a Mexican national convicted twice of being “found in” the U.S. without proper documentation. The pair concurred in part because Herrera-Salazar had already been removed from the country by the time his case reached the high court.
What Sotomayor and Gorsuch took specific issue with was lower courts’ disregard for the double jeopardy standard, which prevents an individual from being tried twice for the same crime.
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Sotomayor and Gorsuch described the “serious constitutional problems that plague the Government’s treatment of Herrera-Salazar,” including a lower court’s 2020 indictment for Herrera-Salazar being “found” to be present in the U.S. after having received an order of removal and leaving the country years earlier.
After Herrera-Salazar pleaded guilty and served a 15-month prison sentence, authorities expressly instructed him not to leave the Eastern District of Oklahoma while serving on supervised release. He was later arrested and indicted under the same federal charge in 2022 — though he did not leave the country again and reenter unlawfully between his two convictions.
Herrera-Salazar appealed his case after the 10th Circuit Court of Appeals rejected his double jeopardy concerns by arguing that a separate reentry offense was not required to indict him in 2022.
By the appeals court’s logic, Sotomayor and Gorsuch asserted, Herrera-Salazar could have been charged with a separate violation “for each day that he was ‘found in’ prison while serving his sentence for the first conviction.”
“Absurd as that seems, it is a logical outgrowth of the Government’s contention” that Herrera-Salazar’s second conviction “poses no double jeopardy problem,” the justices wrote.
The justices also argued that the government had presented Herrera-Salazar with a Hobson’s choice — a seemingly free decision that only offers one real option — because “whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law.”
Sotomayor and Gorsuch encouraged the justice system to “give the Double Jeopardy Clause its full weight and meaning” if courts are tasked with reviewing cases similar to Herrera-Salazar’s.
President Donald Trump has pursued an aggressive stance on immigration policy and deportations since the start of his first term in 2017. The White House’s web page cataloging immigration policies and data reports that the Trump administration has deported more than 605,000 people, with additional 1.9 million individuals opting to self-deport rather than face immigration proceedings.
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