Supreme Court justices Sotomayor and Gorsuch blasted a second prosecution of illegal immigrant Jesus Herrera-Salazar as a constitutional absurdity after he was deported.
The Supreme Court on Tuesday rejected Jesus Herrera-Salazar’s bid for review of his case, even as Justices Sonia Sotomayor and Neil Gorsuch issued a brief opinion warning of “serious constitutional problems” in how the government charged him twice for illegally re-entering the United States.
The New York Post reported that the high court declined to take the case in part because Herrera-Salazar, a Mexican national, had already been deported to Mexico in 2024 after serving both sentences. The pair still used the denial to spotlight what they called a constitutional bind created by successive prosecutions for being “found in” the country.
Herrera-Salazar first faced federal charges after an arrest in 2020. He pleaded guilty to illegally re-entering the United States following a prior removal, served time in prison, and was placed on supervised release that required him to remain in the country.
While still under that order, he was stopped in traffic in Oklahoma, arrested again, indicted, and convicted a second time on the same core offense. The Denver-based 10th U.S. Circuit Court of Appeals rejected his Fifth Amendment double-jeopardy claim and treated the two convictions as separate offenses.
Sotomayor, joined by Gorsuch, described the result as a trap. In the government’s view, staying put or leaving both broke the law.
The justices wrote:
"In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States [after his first release from prison], he would be breaking the law,"
They pressed the point further on the second prosecution itself.
"While Herrera-Salazar was caught in this bind, the Government prosecuted and punished him yet again for being ‘found in’ the United States, even though all agree he was forbidden to leave the United States."
That sequence, they said, left him facing a “Hobson’s choice.” After he finished both sentences, court documents show he was removed to Mexico in 2024. The Supreme Court then turned away his request for review.
Double jeopardy is not a technicality. The Fifth Amendment bars the government from trying someone twice for the same offense, and the justices tied their warning to that text and to prior case law on continuous crimes.
Sotomayor and Gorsuch wrote that “our 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.”
The opinion did not reverse the convictions. It did urge lower courts to handle any repeat of these facts with greater care.
Sotomayor wrote:
"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 also expressed hope that the facts of the case prove anomalous. The high court still left the 10th Circuit’s result in place and refused full review, citing the deportation as one reason the petition no longer warranted the Court’s time.
Immigration cases keep returning to the justices on enforcement power, asylum bars, and detention rules, including a Supreme Court case on whether cooking for terrorists bars asylum and separate fights over removal authority.
Herrera-Salazar’s record is straightforward on the underlying conduct. He is an illegal immigrant who re-entered after removal, drew a federal conviction, stayed under court supervision, and drew another conviction after the Oklahoma stop before his 2024 deportation.
Public opinion has been clear that criminal illegal immigrants should be removed. A Harvard-Harris poll found 77% back deporting illegal immigrants who commit crimes, a baseline most voters treat as common sense rather than a close call.
The second case grew out of a traffic stop in the Eastern District of Oklahoma while Herrera-Salazar remained bound by supervised-release terms that kept him inside the United States. Prosecutors charged him again for being “found in” the country. He was convicted and served that sentence as well.
His lawyers argued the successive prosecutions violated the Fifth Amendment right not to be tried twice for the same offense. The 10th Circuit disagreed and treated the counts as distinct. That ruling stood after the Supreme Court denied certiorari.
Federal immigration enforcement still turns on whether agencies can detain and remove people who break entry and re-entry laws. The Court has also taken up ICE detention rules at the core of Trump deportations, another signal that custody and removal authority remain live fights.
Local resistance can undercut those efforts. New York’s record of sidelining detainers has drawn sharp scrutiny, including coverage of how New York snubbed more than 16,000 ICE detainers on criminal illegal immigrants in a recent stretch.
Judges also shape outcomes case by case, sometimes freezing removals after contested arrests, as in a recent matter where a judge froze deportation of a Dominican illegal immigrant shot in a Bronx ICE arrest.
Tuesday’s order did not wipe away either conviction. It did put a rare joint statement from Sotomayor and Gorsuch on the record about charging a continuous re-entry offense twice through a later “found in” theory while supervised release blocked departure.
The government prosecuted, the 10th Circuit affirmed, the sentences were served, and Mexico took Herrera-Salazar back in 2024. The Supreme Court then declined to reopen the judgment.
Constitutional limits still bind prosecutors even when the defendant is an illegal immigrant with a repeated entry record. Courts can enforce the border and honor the Double Jeopardy Clause at the same time; the Sotomayor-Gorsuch statement says the second path used here failed that test.
Secure borders and clean process are not opposites. When charging theories create a closed loop that punishes both staying and leaving, the law loses clarity, and clarity is what equal enforcement requires.
