Justices Sonia Sotomayor and Neil Gorsuch called the government’s second prosecution of an illegal immigrant a constitutional absurdity, even as the Supreme Court refused to hear the case.
The high court on Tuesday rejected Mexican national Jesus Herrera-Salazar’s request to review his convictions, the New York Post reported. Sotomayor, joined by Gorsuch, still issued a brief opinion warning of “serious constitutional problems” with how prosecutors handled him.
Herrera-Salazar had already been deported to Mexico in 2024 after serving both sentences. That fact helped sink his bid for review. The justices still used the denial to flag what they saw as a Double Jeopardy mess created by the government itself.
The Fifth Amendment bars trying someone twice for the same offense. Herrera-Salazar’s lawyers said that is exactly what happened. The Denver-based 10th U.S. Circuit Court of Appeals disagreed and treated the two convictions as separate offenses. Sotomayor and Gorsuch were not persuaded by that reasoning.
Herrera-Salazar was first arrested in 2020. He pleaded guilty to illegally re-entering the United States after removal, served prison time, and was placed on supervised release. That release came with a condition: remain in the United States, including in the Eastern District of Oklahoma.
He was later arrested after a traffic stop in Oklahoma, indicted, and convicted again for being “found in” the United States. He served that sentence too. Then he was deported.
Sotomayor, writing for herself and Gorsuch, described the bind the government built. From the moment he left custody after the first prison term, he faced no clean legal path.
Fox News reported the fuller statement language the justices used to frame that trap.
"From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson's choice. 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."
In plain terms, staying violated the re-entry laws as prosecutors read them. Leaving violated the supervised-release order. Either way, the government could treat him as a lawbreaker.
While he was stuck in that spot, prosecutors charged and punished him again for being “found in” the United States, even though everyone agreed he was forbidden to leave.
"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."
Sotomayor and Gorsuch argued that Supreme Court precedents and the Double Jeopardy Clause point the other way. When the government charges a continuous crime, it should not get a free second swing just by picking a new date on the calendar.
"[O]ur 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 10th Circuit had already rejected the Fifth Amendment claim and called the offenses separate. The Supreme Court left that result in place by denying review. The two justices still called the outcome a “constitutional absurdity” and said they hope the facts are anomalous.
Court-watchers often track how individual justices handle pressure, recusals, and public fights over the institution’s role, including moments when Justice Kagan defends the Court’s independence in political crossfire.
Sotomayor closed with a direct instruction to lower courts if a similar bind appears again.
"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."
Gorsuch joining Sotomayor drew notice because the two sit on opposite ideological wings of the Court. Fox News noted the pairing fits a short list of earlier statements in which they have aligned on constitutional limits, including issues tied to police property damage compensation and warrantless misdemeanor arrests.
Personnel drama on the Court remains a steady subplot in Washington. Coverage has followed everything from Alito’s public comments about weighing retirement to sudden shifts in case participation.
None of that changed the bottom line for Herrera-Salazar. The Court would not take his case. He had already been removed to Mexico after both sentences. The opinion still put prosecutors on notice about stacking “found in” charges on top of supervised-release conditions that order an illegal immigrant to stay put.
Separate high-court fights keep exposing how justices manage timing and jurisdiction under scrutiny, much like debates over whether liberal justices sought a jurisdictional off-ramp in a major climate dispute.
Illegal re-entry after removal is a crime. Taxpayers fund the arrests, the prison beds, the supervised-release machinery, and the deportation flights. A system that convicts a man, orders him to remain, then indicts him again for still being here invites exactly the Double Jeopardy fight Sotomayor and Gorsuch described.
Other recent Court stories have turned on last-minute changes in justice involvement, including when Alito stepped aside from a climate case days before arguments.
The government wanted Herrera-Salazar punished for coming back and for staying. It got two convictions and a deportation. What it also got was a public warning from a liberal justice and a conservative colleague that the charging theory looked like the same continuous offense dressed up with a new timestamp.
Even the justices who will not expand the Court’s docket for every flawed prosecution will still name a constitutional trap when the government builds one in plain sight. Border enforcement only works when the law is applied with equal clarity, not with no-win paper traps that collapse under the Fifth Amendment.