Sotomayor and Gorsuch Challenge Repeated Immigration Prosecutions

The U.S. Supreme Court declined on October 13, 2026, to review the immigration prosecution of Jesus Herrera-Salazar, a Mexican citizen convicted twice for being unlawfully present in the United States after removal. Justices Sonia Sotomayor and Neil Gorsuch agreed with the decision not to hear the appeal but warned that the second prosecution raised serious constitutional questions under the Fifth Amendment's protection against double jeopardy.

In a joint statement accompanying the court's order, Sotomayor and Gorsuch questioned whether federal authorities could prosecute Herrera-Salazar again without evidence that he had left the country and subsequently reentered. Their concerns focused on whether the government had effectively punished the same continuing conduct twice.

Herrera-Salazar was first charged in 2020 with being found in the United States after a previous removal, a federal immigration offense. According to the case history described by the outlets reporting on the decision, he pleaded guilty, served a prison sentence and was subsequently placed under federal supervision.

After his release, Herrera-Salazar was required to remain within the Eastern District of Oklahoma. A traffic stop led to another prosecution for being unlawfully found in the country. A jury convicted him, and he received another prison sentence followed by supervised release. He was removed from the United States in 2024, according to UA.News.

Sotomayor explained that the court's refusal to hear the case reflected the circumstances surrounding the petition, including Herrera-Salazar's removal, rather than an endorsement of the prosecution's constitutional basis.

"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," Sotomayor wrote in a statement joined by Gorsuch.

The justices questioned the reasoning of the U.S. Court of Appeals for the Tenth Circuit, which had rejected Herrera-Salazar's double jeopardy argument. That court concluded that the two prosecutions could constitute separate offenses under federal immigration law, even without a separate departure and return between them.

Sotomayor highlighted the potential consequences of that interpretation, arguing that it could permit prosecutors to bring successive charges based on uninterrupted unlawful presence.

"A person in Herrera-Salazar’s shoes can be subjected to repeated, limitless ‘found in’ charges without offending the Constitution," Sotomayor wrote.

The federal government had maintained that the two cases involved separate violations because Herrera-Salazar was found in the country at different times and locations. Its position also raised concerns about whether a ruling in his favor could prevent further punishment for people who remained unlawfully in the United States without another removal and reentry.

The justices pointed to the Supreme Court's precedent in Brown v. Ohio, which limits prosecutors' ability to divide a single criminal offense into multiple charges to avoid constitutional protections. They reasoned that Herrera-Salazar's initial offense might not have ended until he left the country, making the second prosecution difficult to justify.

They also identified a conflict between the government's actions and the conditions imposed on Herrera-Salazar's supervised release. He was restricted from leaving his designated district while facing the possibility of another prosecution for remaining in the United States.

"In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law," the justices wrote.

Sotomayor and Gorsuch acknowledged that the circumstances might be unusual but urged courts to avoid repeating the constitutional problem. Their statement called for renewed attention to the limits imposed by the Fifth Amendment and the prohibition against prosecuting someone twice for the same offense.

"Avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning," the justices urged.

The Supreme Court's decision leaves the Tenth Circuit's ruling in place in Herrera-Salazar's case. Because the justices declined to grant review, they did not issue a new ruling resolving the broader constitutional question.