Sotomayor and Gorsuch team up to rip ‘constitutional absurdity’ of immigration case

Supreme Court Justices Sonia Sotomayor and Neil Gorsuch teamed up on October 13 to criticize what they called a "constitutional absurdity" involving Jesus Herrera-Salazar, a Mexican national. The justices released a joint statement after the Supreme Court declined to hear Herrera-Salazar’s appeal, noting that he had already been deported following his second conviction for illegally entering the United States.

Herrera-Salazar was initially arrested in 2020 and pleaded guilty to being "found in" the U.S. after illegal entry; he served 15 months in prison before being released under supervision in Oklahoma. While on supervised release, Herrera-Salazar was again arrested during a traffic stop and re-indicted for the same offense, leading to an additional sentence of 21 months.

Sotomayor and Gorsuch expressed concern that such circumstances could violate the Double Jeopardy Clause, which prevents multiple prosecutions for the same crime. They encouraged courts to "avoid the constitutional absurdity" in future cases like Herrera-Salazar's and emphasized his dilemma: staying in Oklahoma or leaving the country to avoid re-arrest.