Sotomayor Gorsuch Immigration Case and Double Jeopardy Concerns
On Oct. 13, 2026, Supreme Court Justices Sonia Sotomayor and Neil Gorsuch jointly highlighted what they called a constitutional absurdity in the prosecution of immigrant Jesus Herrera‑Salazar. Their remarks appeared on the Court's order list accompanying a denial of review for the case.
Background of the Herrera‑Salazar prosecution
Herrera‑Salazar was initially charged with illegal re‑entry after being removed from the United States. He pleaded guilty, served a prison term, and was released under supervised release in the Eastern District of Oklahoma. During a routine traffic stop, federal agents charged him again with the same "found in" offense, leading to a second trial, conviction, and additional imprisonment.
Justice Sotomayor’s constitutional critique
Justice Sotomayor wrote that the repeat charge raised serious doubts about the Double Jeopardy Clause, which protects individuals from being tried twice for the same offense. She noted that a lower appellate court had rejected her view, but warned that under that reasoning the government could theoretically file endless charges for each day a person remains "found in" prison.
Neil Gorsuch joins the criticism
Justice Gorsuch added his voice to Sotomayor’s concerns, emphasizing that courts should avoid repeating the “constitutional absurdity” demonstrated in this case. Their joint statement called for the Double Jeopardy Clause to be given its full weight in future immigration prosecutions.
Supreme Court’s procedural action
Although the justices agreed the case raised important constitutional questions, they concurred with the majority decision not to grant a writ of certiorari. Sotomayor explained that she wrote the statement to underscore the broader issue, not because the case itself warranted Supreme Court review.
Implications for immigration law
The public remarks by two ideologically opposed justices—one appointed by President Obama and the other by President Trump—signal a rare bipartisan acknowledgment of potential overreach in immigration enforcement. Legal analysts suggest the comments could influence how lower courts interpret double jeopardy claims in similar contexts, though no immediate legal change has been announced.
Future developments will depend on whether lower courts adopt the justices’ perspective or continue to follow the appellate court’s narrower view. For now, the case remains a notable example of the Supreme Court using its order list to draw attention to constitutional issues without taking up the case itself.
