Sotomayor, Gorsuch flag double-jeopardy ‘absurdity’ in immigrant case

High court declines petition after immigrant’s second reentry conviction

U.S. Supreme Court Justices Sonia Sotomayor and Neil Gorsuch called out what they termed a ‘constitutional absurdity’ in the case of a Mexican immigrant prosecuted twice for being ‘found in’ the United States — the second time while he was required to remain in the country under supervised release.

The court on Tuesday declined to take up the petition of Jesus Herrera-Salazar, who was deported in 2024, according to court documents. Sotomayor agreed the case did not need review because Herrera-Salazar had already been removed from the country, but she said she felt the need to ‘underscore the serious constitutional problems that plague the government’s treatment’ of him.

The case centers on the Fifth Amendment’s Double Jeopardy Clause, which protects people from being prosecuted twice for the same crime. Sotomayor said the second prosecution was ‘difficult to square’ with those protections.

Herrera-Salazar, a Mexican national, was indicted in 2020 on a charge of being found in the United States after being removed. He pleaded guilty and served his prison sentence. Afterward, while required to stay in the United States under supervised release, he was arrested again in Oklahoma, charged with the same crime, and convicted of illegal reentry. He served another prison sentence and was deported in 2024, court documents show.

The 10th U.S. Circuit Court of Appeals, where Herrera-Salazar had previously appealed, said the clause did not apply and that both of his convictions were for different offenses. Sotomayor, joined in her opinion by Gorsuch, disagreed.

“When a defendant is convicted of a crime that involves continuous, uninterrupted conduct, 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,” Sotomayor wrote.

By the appeals court’s logic, she wrote, the government could have charged Herrera-Salazar with a new crime for every day he remained in prison while serving his sentence.

Sotomayor and Gorsuch — appointed by Presidents Barack Obama and Donald Trump, respectively — wrote that should such a case arise again, courts should ‘avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.’