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Conservative Supreme Court Justice Neil Gorsuch joined forces with liberal Justice Sonia Sotomayor to challenge the federal government’s prosecution of an illegal immigrant, marking the latest unlikely alliance between the two justices.
Gorsuch, appointed by President Donald Trump, and Sotomayor, appointed by former President Barack Obama, expressed concerns about the government’s decision to twice prosecute a Mexican national for being found in the United States illegally — even after a federal court barred him from leaving the Eastern District of Oklahoma following his first conviction.
This unlikely pairing emerged Tuesday when the Supreme Court declined to hear an appeal from Jesus Herrera-Salazar, who argued that his second lawsuit violated the Fifth Amendment’s protection against double jeopardy. Although the justices agreed that the Court should not take up the case, Sotomayor issued a separate statement, joined by Gorsuch, warning of serious constitutional problems with the government’s actions.
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Supreme Court Justices Sonia Sotomayor and Neil Gorsuch issued a joint statement this week questioning the federal government’s prosecution of an illegal immigrant, marking the latest in a series of unusual constitutional alliances between the two justices. (Getty Images)
“From the time he was released after serving his first prison sentence, Herrera-Salazar was offered a Hobson pick,” Sotomayor wrote in the statement Gorsuch attached. “In the eyes of the government, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law.”
Both justices questioned how the government could punish someone for remaining in the country after effectively barring them from leaving the country, with the two justices’ joint statement calling the situation a “constitutional absurdity.”
Their agreement is particularly notable given their different judicial philosophies, but it’s not the first time the two men have found common ground on constitutional protections against government action.
In November 2024, Sotomayor and Gorsuch jointly questioned whether property owners should be compensated when police destroy private property while conducting law enforcement operations. A few months later, they joined forces again to voice their concerns about warrantless misdemeanor arrests. In both cases, as in the latest immigration dispute, the Court declined to hear the appeals, but the justices issued statements highlighting constitutional issues they said merited consideration.
The U.S. Supreme Court has allowed the Trump administration to continue third-country deportations while judges consider challenging the policy in court. (Getty Images)
The latest expression of the two men’s shared public concern came after Herrera-Salazar, a Mexican national previously deported from the United States, was indicted in 2020 for being found in the country after his deportation, a violation of federal immigration law.
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He pleaded guilty and served a prison term before being placed on probation, during which he was expressly prohibited from leaving the Eastern District of Oklahoma without permission under the terms of his release.
While still subject to these restrictions, Herrera-Salazar was arrested by police in Heavener, Oklahoma, and then charged again under the same federal immigration law that prohibits people previously deported from being found in the United States illegally. A jury later found Herrera-Salazar guilty, earning him another prison term and additional supervised release.
The second prosecution prompted Herrera-Salazar to challenge his conviction on the grounds of double jeopardy, arguing that the government had effectively punished him twice for the same continuous period of unlawful presence.
The U.S. Court of Appeals for the 10th Circuit rejected this argument, concluding that the offense is complete when authorities discover a person’s unlawful presence and that subsequent discovery can justify a separate prosecution without requiring further unlawful entry.
Federal immigration agents arrest a man in the parking lot of an H-Mart grocery store on October 31, 2025 in Niles, Illinois. (Photo by Jamie Kelter Davis/Getty Images)
Sotomayor and Gorsuch questioned that reasoning, pointing to Supreme Court precedent establishing that prosecutors cannot escape double jeopardy protection simply by dividing a continuous crime into distinct periods. Their concern was not whether Herrera-Salazar had violated immigration law in the first place, but rather whether the government could prosecute him repeatedly for remaining in the United States without proof of a separate illegal reentry.
The justices also pointed out that Herrera-Salazar’s supervised release conditions prevented him from leaving Oklahoma, meaning the government was effectively preventing him from stopping the conduct for which it had prosecuted him again. Sotomayor cautioned that, under the government’s interpretation, prosecutors theoretically could have brought separate charges against Herrera-Salazar for each day he spent in prison after his first conviction.
The statement was issued despite the justices agreeing with the Court’s decision not to reexamine the case. Sotomayor explained that Herrera-Salazar had already been deported from the United States and expressed hope that the unusual circumstances surrounding his prosecution would not recur.
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Rather than object to the Court’s refusal to hear the appeal, Sotomayor and Gorsuch used what is officially known as the statement “concerning the denial of certiorari” to publicly identify constitutional concerns and urge lower courts to avoid similar issues in future cases.
Members of the Supreme Court pose for a group photo at the Supreme Court on October 7, 2022. Seated from left: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts Jr., Associate Justice Samuel A. Alito Jr., and Associate Justice Elena Kagan. Standing behind, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (USA TODAY Network via Reuters Connect)
The unusual collaboration follows two prior cases in which Sotomayor wrote statements to which Gorsuch attached after the Supreme Court declined review.
In November 2024, the two men raised their concerns in the case of Baker v. City of McKinney, a Texas case involving a homeowner whose property was significantly damaged during a police operation to apprehend an armed fugitive.
Police used tear gas, explosives and an armored vehicle during the clash, leaving the house badly damaged. Although the justices agreed that the officers acted properly to protect public safety, they questioned whether the Constitution allows the government to impose the financial burden of such damages on an individual property owner without compensation.
Meanwhile, in February 2025, Sotomayor and Gorsuch joined forces again, this time questioning whether the Fourth Amendment allowed police to make warrantless arrests for crimes committed outside of the presence of an officer that they had not personally witnessed.
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This case involved a Florida man arrested for loitering and loitering after police, responding to a report of suspicious activity, encountered him walking in a residential neighborhood before dawn. A subsequent search revealed stolen mail, leading to a federal criminal charge.
Fox News Digital reached out to the Supreme Court chambers for comment but did not receive a response in time for publication.
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