Justice Neil Gorsuch joined Sonia Sotomayor in branding the Justice Department’s second prosecution of an illegal immigrant a “constitutional absurdity,” even as the Supreme Court refused to take the case.
The high court declined an appeal from Jesus Herrera-Salazar, a Mexican national already removed from the United States more than once. What drew rare attention was not a full opinion, but a statement respecting the denial of review. Justice Sonia Sotomayor wrote it. Justice Neil Gorsuch, appointed by President Donald Trump, signed on.
Fox News Digital reported the pairing emerged Tuesday and centered on how federal prosecutors handled successive charges for being found unlawfully in the country.
Herrera-Salazar argued the second case violated the Fifth Amendment’s double jeopardy shield. The U.S. Court of Appeals for the 10th Circuit disagreed. Sotomayor and Gorsuch did not force the full Court to decide the fight. They still put the government’s conduct on the record.
Federal prosecutors first indicted Herrera-Salazar in 2020 for being found in the United States after a prior deportation. That charge tracked a long-standing immigration statute aimed at previously removed aliens who reappear inside the country.
He pleaded guilty, served prison time, and landed on supervised release. The terms barred him from leaving the Eastern District of Oklahoma without authorization. In plain terms, the court order kept him inside a slice of Oklahoma while immigration law treated his presence as a crime.
Police in Heavener, Oklahoma, later stopped him while those restrictions still applied. Prosecutors charged him again under the same statute. A jury convicted him. He drew another prison term and more supervised release.
By the time the Supreme Court statement appeared, he had already been removed from the United States again. The practical case was over. The constitutional warning was not.
Sotomayor, joined by Gorsuch, said the sequence left the defendant with no lawful path.
She wrote:
"From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson's choice,"
The statement pressed the point further:
"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."
They labeled the arrangement a "constitutional absurdity." Sotomayor also flagged a broader risk: if the government’s theory held, prosecutors could theoretically stack separate charges for each day of confinement after the first conviction. That is not border enforcement with a clear endpoint. That is serial exposure built from the government’s own conditions.
She noted Herrera-Salazar had already been removed and said she hoped the odd facts would not repeat. Gorsuch’s joinder gave the critique bipartisan weight on a Court that rarely advertises internal agreement in denial statements.
The appeals court rejected Herrera-Salazar’s Fifth Amendment claim. It held that the offense is complete when authorities discover unlawful presence. Under that reading, a later discovery can support a new prosecution without proof of another illegal entry.
That rule is aggressive. It treats each encounter with law enforcement as a fresh crime even if the alien never left. Combined with a supervised-release order that forbids departure from the district, the structure becomes a vise: stay and face new charges, or leave and violate the court’s own terms.
Secure borders require real penalties for illegal reappearance after removal. Taxpayers should not bankroll revolving-door releases. Constitutional limits still bind the prosecutors who draft the charging papers. Double jeopardy exists so the government cannot carve one continuous course of conduct into endless new cases for political or administrative convenience.
Tuesday’s statement fits a short pattern. In November 2024, Sotomayor and Gorsuch raised concerns after the Court declined a Texas property case, Baker v. City of McKinney, involving compensation when police damage a home during an operation. In February 2025, they again joined on a Fourth Amendment question tied to a warrantless misdemeanor arrest in Florida that led to broader federal charges.
Those notes do not make Gorsuch a liberal justice. They show a textualist unwilling to shrug when procedure and government power collide. Sotomayor, appointed by former President Barack Obama, supplies the other half of the odd couple. When both flag the same problem, lower courts and the Justice Department should pay attention.
Fox News Digital reached out to Supreme Court chambers for comment and received no reply before publication. The Court as a whole left the 10th Circuit ruling in place. The statement is a marker, not a nationwide holding.
Illegal immigrants who return after deportation should face swift removal and serious charges. Supervised release should not become a tool that locks a defendant inside the country and then treats that same presence as a brand-new federal crime. If prosecutors need cleaner statutes or tighter release conditions, Congress and the courts can draft them. Manufacturing a no-win box is not law and order. It is bureaucratic overreach with a badge.
Constitutional government is not optional when the defendant is unpopular. Gorsuch’s signature next to Sotomayor’s makes that harder to ignore.
