NRT briefing
Trump-appointed justice joins Sotomayor in unlikely alliance to rip DOJ's handling of illegal immigrant case
Based on reporting by Fox News.
The Brief
Supreme Court Justices Neil Gorsuch and Sonia Sotomayor, known for their contrasting judicial philosophies, joined forces to question the federal government's prosecution of an illegal immigrant, warning of a potential constitutional violation.
The unlikely alliance emerged Tuesday when the Court declined to hear the appeal of Jesus Herrera-Salazar, a Mexican national who argued his second prosecution for being unlawfully present in the U.S. violated the Fifth Amendment's double-jeopardy protection. Although the justices agreed not to review the case, Sotomayor issued a statement, joined by Gorsuch, describing the situation as a "constitutional absurdity."
Herrera-Salazar was initially convicted in 2020 and, after serving his sentence, was placed on supervised release with an express prohibition on leaving the Eastern District of Oklahoma. While still under those restrictions, he was stopped by police in Heavener, Oklahoma, and subsequently charged and convicted again under the same federal immigration statute.
Sotomayor and Gorsuch questioned the government's logic, noting that Herrera-Salazar was effectively ordered to remain in Oklahoma while being prosecuted for remaining in the country. They pointed to precedent that prosecutors cannot divide one continuous crime into separate periods to avoid double-jeopardy protections, and noted that under the government's interpretation, charges could have been brought for each day he remained imprisoned after his first conviction.
NRT commentary
How We See It
The joint statement by Justices Gorsuch and Sotomayor highlights a critical tension between enforcing immigration laws and upholding constitutional protections. While the government has a legitimate interest in prosecuting unlawful presence, its actions in this case created a Catch-22 for Herrera-Salazar, who was ordered to stay in Oklahoma yet later prosecuted for being found in the country.
This case underscores the need for federal prosecutors to exercise discretion and avoid creating legal absurdities that undermine public confidence in the justice system. The Court's decision to decline review may leave lower courts without clear guidance, but the justices' pointed statement serves as a warning to avoid similar pitfalls in future cases.
The broader implication is that even in matters of immigration enforcement, the government must act within the bounds of the Constitution. As the justices noted, the failure to do so risks not only individual injustice but also erosion of the rule of law.
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