Trump-appointed Justice Neil Gorsuch joined Sonia Sotomayor this week in calling the Justice Department’s second prosecution of an illegal immigrant a constitutional absurdity the courts should not repeat.

The Supreme Court declined to hear the appeal of Jesus Herrera-Salazar, a Mexican national already removed from the United States. Still, Justice Sonia Sotomayor issued a statement respecting that denial, and Justice Neil Gorsuch signed on.

Fox News reported the pairing as the justices questioned how federal prosecutors handled a second charge for being found unlawfully in the country after supervised-release rules left him no clean way out.

The case never became a full Court ruling. It became a warning shot about double jeopardy, continuous presence, and a government theory that can turn one illegal stay into serial prison terms.

Herrera-Salazar was first indicted in 2020 for being found in the United States after deportation. He pleaded guilty, served prison time, and then sat on supervised release with a hard limit: he could not leave the Eastern District of Oklahoma without authorization.

That condition locked him inside the district. Leaving would violate supervision. Staying meant he remained present as a previously removed alien. Prosecutors later used that presence against him again.

Police stop in Oklahoma triggered a second federal case

While still under those restrictions, police in Heavener, Oklahoma, stopped him. Federal prosecutors charged him again under the same immigration statute for being found unlawfully in the country.

A jury convicted him. He drew another prison sentence and more supervised release. He challenged the second case under the Fifth Amendment’s Double Jeopardy Clause, which bars the government from punishing a person twice for the same offense.

The U.S. Court of Appeals for the 10th Circuit rejected that argument. The panel treated the offense as complete when authorities discover unlawful presence, so a later discovery could support a new prosecution without a fresh illegal entry.

Herrera-Salazar asked the Supreme Court to take the case. The Court said no. Sotomayor and Gorsuch agreed the petition should not be granted, then explained why the charging pattern still troubled them.

Hobson’s choice left no lawful exit

Sotomayor wrote that the government’s approach boxed him in from the start of supervision. In the statement joined by Gorsuch, she said:

"From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson's choice,"

She added the core bind in plain terms:

"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."

That is the heart of the criticism. Supervised release ordered him to stay put. Immigration law still treated his presence as a crime. The second indictment then treated a later “finding” as a separate offense.

Sotomayor also flagged how far the theory could run. Under the government’s reading, prosecutors could have stacked separate charges for each day he remained imprisoned after the first conviction. Continuous presence would become an open-ended charging machine.

By the time the statement issued, he had already been removed from the United States. Sotomayor said she hoped the unusual circumstances would not arise again.

Cross-bench statement targets a repeatable charging tactic

The Washington Examiner detailed the same joint statement and the double-jeopardy questions raised after two arrests and indictments tied to illegal presence, even as the Court left the 10th Circuit result in place.

Gorsuch’s vote with Sotomayor matters because he is a Trump-appointed conservative known for textual limits on government power. When he joins a liberal justice to police federal charging practice, the issue is constitutional structure, not party fashion.

Readers tracking the Court this term already have seen sharp splits and unexpected lineups, including a recent 5-4 fight over White House ballroom construction that scrambled expected conservative alignment.

Here the target was the Justice Department’s willingness to slice one continuous unlawful presence into multiple prosecutions by shifting the “time marker” of discovery.

The New York Post carried Sotomayor’s fuller caution to lower courts, joined by Gorsuch:

"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,"

She pressed the precedent point directly:

"[O]ur 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."

That language does not free anyone to ignore immigration law. It tells prosecutors they cannot recycle the same ongoing presence into round after round of punishment by stopping the clock whenever it suits them.

Immigration enforcement still needs clean charging, not traps

Secure borders and removal of people here illegally remain core duties. Herrera-Salazar had already been deported once, returned to face federal charges, and was removed again by the time the justices wrote. The public interest in stopping illegal re-entry is real.

So is the Constitution’s ban on double jeopardy. A supervised-release order that forbids leaving a district, paired with a statute that criminalizes being found inside the country, can manufacture the very “Hobson’s choice” Sotomayor described. Law-and-order policy collapses into a paperwork trap when the only options are new violations.

The 10th Circuit blessed the second case. The Supreme Court left that judgment undisturbed. The Sotomayor-Gorsuch statement still put lower courts on notice: do not bless the same continuous crime twice just because agents noticed the defendant on a later date.

That warning lands while the Court keeps moving a heavy immigration docket. In a separate matter, the Court cleared the Trump administration to continue third-country deportations while a broader challenge proceeds, another reminder that enforcement tools and constitutional limits travel together.

Fox News Digital sought comment from Supreme Court chambers and did not receive a response in time for publication.

Pattern of joint statements after denials of review

This was not the first time Gorsuch and Sotomayor have paired after the Court refused a case. In November 2024 they raised concerns in Baker v. City of McKinney, a Texas dispute over property damage during a police operation and whether compensation should follow.

In February 2025 they again joined after the Court declined review in a Florida matter involving a warrantless misdemeanor arrest for loitering and prowling, a later search that found stolen mail, and a resulting federal charge.

Those statements, like this one, did not create binding nationwide holdings. They flagged doctrines the two justices believe lower courts are mishandling when the full Court will not take the case.

Personnel and temperament on the Court remain a constant political story. President Trump has publicly praised Justice Samuel Alito in recent coverage, calling him one of the greatest justices of all time after Alito signaled he would stay on the bench.

Gorsuch’s record still runs through Trump’s first-term appointment and a consistent focus on statutory text and structural limits. Joining Sotomayor here fits that lane: restrain the government’s charging creativity when it collides with the Double Jeopardy Clause.

Other high-profile matters keep testing institutional lines as well, from campaign rules to election process fights such as when the Supreme Court again backed Trump in a campaign ad rates dispute.

None of those cases revises the Herrera-Salazar facts. They show a Court term already thick with executive power, immigration, and constitutional procedure, exactly the terrain where a joint statement on serial “found in” prosecutions carries weight.

What the denial does not change

Herrera-Salazar is gone from the country. His second conviction stands because the Court denied review. Federal prosecutors still hold the 10th Circuit’s discovery-based theory unless another circuit forces a split or the justices take a cleaner vehicle later.

What changed is the public marker from two justices on opposite ideological wings. They described the government’s posture as a constitutional absurdity and told courts to give the Double Jeopardy Clause its full meaning if the pattern returns.

Illegal presence after deportation is a serious federal offense. Stacking that offense by redrawing time markers while supervision forbids departure is a different problem, one that invites abuse, confuses defendants about lawful options, and erodes confidence that immigration prosecutions follow clear rules.

Constitutional order is not a loophole for lawbreakers. It is the rulebook that keeps enforcement legitimate. When a Trump-appointed justice and a liberal justice both say the charging theory went too far, the Justice Department should tighten its practice, not hunt for the next date stamp.