Supreme Court Justices Gorsuch and Sotomayor Critique Government's Treatment of Immigrant Case

<figure><img alt="U.S. Supreme Court Associate Justice Neil M. Gorsuch poses during a group portrait at the Supreme Court in Washington, U.S., October 7, 2022." src="https://thedailybeast-thedailybeast-prod.web.arc-cdn.net/resizer/v2/HN7TD4GUTJD6TBE7RZBDR6ALBI.JPG?auth=d68ebc6f783470331dac8bf140e8b2f0f727f95ecd09b9d6da6fe64e0bb93684&amp;smart=true&amp;width=3078&amp;height=1731" /><figcaption>EVELYN HOCKSTEIN / REUTERS</figcaption></figure><p>On October 14, 2026, Justices Neil Gorsuch and Sonia Sotomayor of the U.S. Supreme Court expressed concerns regarding the government's actions in a case involving Jesus Herrera-Salazar, a Mexican national. They stated that the case presented “serious constitutional problems.”</p><p>Gorsuch, appointed by former President Donald Trump, and Sotomayor, appointed by former President Barack Obama, declined to hear arguments in the case. Herrera-Salazar had been arrested twice for being present in the U.S. after being ordered to remain in the country while on probation.</p><p>Sotomayor noted that the government's treatment of Herrera-Salazar did not align with double jeopardy protections, which prevent an individual from being prosecuted twice for the same offense. Gorsuch supported her statement.</p><img alt="Gorsuch joined his liberal colleague in a statement denying a petition for a writ of certiorari on Tuesday. / Carlos Barria/Reuters" height="1439" src="https://thedailybeast-thedailybeast-prod.web.arc-cdn.net/resizer/v2/PT3NOFT3XZCEBLAJ2SVOGI45FY.jpg?auth=6b2deb71c7f2c3478f5ffe9e729da394e3d94fbe2a25c37bc5d247fadeb5c337&amp;smart=true&amp;width=1439&amp;height=1439" width="1439" /><p>Sotomayor stated, “Because I hope the facts of this case are anomalous and because Herrera-Salazar has since been removed from the United States, I concur in the Court’s decision not to grant review in this case. I write, however, to underscore the serious constitutional problems that plague the Government’s treatment of Herrera-Salazar.”</p><p>She elaborated that the government prosecuted Herrera-Salazar twice after he illegally crossed the border, first being found in Texas in 2020 and subsequently sentenced to prison.</p><img alt="Sotomayor wrote that the government's treatment of Herrera-Salazar had " src="https://thedailybeast-thedailybeast-prod.web.arc-cdn.net/resizer/v2/PHWD7JMTUBFTXG7LNKSZCKNQLA.JPG?auth=40adcbbc0444395d56e7448dcc37cf8480b5e2ee52d0bcbd98604abe8b744319&amp;smart=true&amp;width=3000&amp;height=1807" /><p>“After being once convicted and punished for being found in the United States and, as part of his original sentence, prohibited from leaving the United States, Herrera-Salazar was convicted and punished for being found in the United States a second time,” she added.</p><p>According to reports, Herrera-Salazar served both sentences and was deported in 2024.</p><video id="gzSgo7zj" poster="https://cdn.jwplayer.com/v2/media/gzSgo7zj/poster.jpg"><source src="https://cdn.jwplayer.com/videos/gzSgo7zj.mp4" type="video/mp4" /></video><p>Sotomayor indicated that the statutory language “found in... the United States” was ambiguous and could not reasonably be interpreted to include a person already found and ordered to remain in the country under supervision.</p><p>She also noted that since the crime for which Herrera-Salazar was convicted extended over the entire period he was present in the U.S. after his previous removal and reentry, the crime would not have concluded until the government permitted him to leave the country.</p><img alt="The nine Supreme Court Justices of the United States. / EVELYN HOCKSTEIN / Evelyn Hockstein/Reuters" height="3491" src="https://thedailybeast-thedailybeast-prod.web.arc-cdn.net/resizer/v2/ET7UM4TDZJAXXFGKJSJMBVIIDA.JPG?auth=ffac3a4f522db94af8b4b06168d217697da9223c84d3750964c55ba731be4bd7&amp;smart=true&amp;width=4938&amp;height=3491" width="4938" /><p>Sotomayor concluded by stating, “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.”</p><p><a href="https://www.thedailybeast.com/trump-appointee-neil-gorsuch-joins-liberal-scotus-colleague-sonia-sotomayor-to-blast-absurd-case">Read more at The Daily Beast.</a></p>