Trump-appointed judge joins Sotomayor in unlikely union to undo Justice Department's handling of illegal migrant case.

Neil Gorsuch and Sonia Sotomayor joined forces after prosecutors accused a deported man, despite a court having ordered him to remain in Oklahoma after his first conviction.

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Conservative Supreme Court Justice Neil Gorsuch has teamed up 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, raised concerns about the administration's decision to try a Mexican citizen twice for being in the United States illegally — even after a federal court barred him from leaving the Eastern District of Oklahoma after his first conviction.

The unlikely pairing emerged Tuesday when the Supreme Court declined to hear an appeal by Jesus Herrera-Salazar, who argued his second prosecution violated the Fifth Amendment's protection against double jeopardy. Although the justices agreed that the court should not hear the case, Sotomayor issued a separate statement, joined by Gorsuch, warning of serious constitutional problems with the administration's actions.

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"From the moment he was released from custody after serving his sentence, Sotomayor wrote in a statement joined by Gorsuch: 'In the eyes of the government, whether Herrera-Salazar remains in the eastern district of Oklahoma or leaves the United States, he is breaking the law.'"

The two judges questioned how the government could punish someone for staying in the country after effectively banning the exit ban, a situation the pair described as a "constitutional absurdity."

Their agreement is particularly notable given their differing judicial philosophies, but it's not the first time the pair have found common ground on constitutional protections against government action.

In November 2024, Sotomayor and Gorsuch jointly questioned whether homeowners should be compensated when police destroy private property during law enforcement operations. A few months later, they joined forces again to voice their concerns about illegal warrantless arrests. In both cases, as in the latest immigration dispute, the court declined to hear the appeals, but the justices issued statements that they said addressed constitutional questions.

The couple's latest public expression of concern came after Herrera-Salazar, a Mexican citizen who had previously been deported from the United States, was charged in 2020 with being found in the country after deportation, a violation of federal immigration law.

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He pleaded guilty and served a prison sentence before his supervised release, during which he was expressly prohibited from leaving the eastern district of Oklahoma without permission as part of his release.

While still under these restrictions, Herrera-Salazar was stopped by police in Havener, Oklahoma, and subsequently charged again under the same federal immigration law that prohibits previously deported individuals from being in the United States illegally. A jury subsequently convicted Herrera-Salazar, leading to another prison sentence and further supervised release.

The second prosecution prompted Herrera-Salazar to challenge his conviction on double grounds, arguing that the government 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 the subsequent discovery can support a separate prosecution without requiring another unlawful entry.

Sotomayor and Gorsuch questioned that argument, pointing to Supreme Court precedent that proves prosecutors cannot escape double protection simply by dividing a continuous offense into separate periods. Their concern was not whether Herrera-Salazar violated the immigration law in the first place, but whether the government could repeatedly prosecute him for remaining in the United States without proof of a separate illegal re-entry.

The justices also emphasized that the conditions of Herrera-Salazar's supervised release restricted him from leaving Oklahoma, effectively preventing the state from ending the conduct that later led to his prosecution. Sotomayor warned that under the government's interpretation, prosecutors could theoretically file separate charges against Herrera-Salazar for each day Herrera-Salazar remained in jail after his first conviction.

This statement was issued despite the judges' agreement with the court's decision not to hear the case. Sotomayor explained that Herrera-Salazar had already been deported from the United States and expressed hope that the unusual circumstances surrounding his trial would not recur.

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Rather than challenge the court's denial of the appeal, Sotomayor and Gorsuch used what is formally known as a statement of "respect for the denial of certiorari" to publicly identify constitutional concerns and urge lower courts to avoid similar problems in future cases.

The unusual collaboration follows two previous cases in which Sotomayor wrote statements he joined after Gorsuch rejected a Supreme Court review.

In November 2024, the pair raised concerns in Baker v. City of McKinney, a Texas case involving a homeowner whose property was heavily damaged during a police operation to apprehend an armed fugitive.

During this conflict, the police used tear gas, explosives, and an armored car, which severely damaged the house. Although the justices acknowledged that the officers acted properly to protect public safety, they questioned whether the Constitution allows the state to impose the financial burden of such damage on a homeowner without compensation.

Meanwhile, in February 2025, Sotomayor and Gorsuch joined forces again, this time questioning whether the Fourth Amendment allows police to make arrests without a warrant for crimes committed outside of the officer's presence and which they did not personally witness.

The case involved a Florida man who was arrested for loitering and loitering after police responding to a report of suspicious activity encountered him walking through a residential neighborhood before dawn. A subsequent search turned up the stolen mail, leading to a federal criminal charge.

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