Justices Sotomayor and Gorsuch condemned the double prosecution of an illegal immigrant for reentry as a constitutional absurdity, even as the Court refused his appeal.
Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued a sharp statement this week condemning what they called “serious constitutional problems” in the government’s repeated prosecution of Mexican national Jesus Herrera-Salazar for illegally reentering the United States.
The Supreme Court still turned away his petition on Tuesday, along with dozens of other appeals. Sotomayor and Gorsuch agreed the case did not warrant full review, in part because Herrera-Salazar had already been removed from the country in 2024. Their written warning, however, put lower courts on notice about double jeopardy and continuous illegal presence.
The Hill reported that the justices found it hard to square his treatment with Fifth Amendment protections against being put twice in jeopardy for the same offense.
Herrera-Salazar’s path through the system was messy, and the facts are not in serious dispute.
Authorities found him in Texas in 2020 and sentenced him to prison for illegal reentry. The government said he had crossed the border on numerous occasions.
After that first sentence, he remained on supervised release. The terms required him to stay on U.S. soil under law enforcement watch. Officers later found him in Oklahoma and convicted him of illegal reentry again.
He served both sentences. Court records show he was removed from the country in 2024.
He kept arguing that the second prosecution violated the Double Jeopardy Clause. The 10th U.S. Circuit Court of Appeals disagreed. That court held each conviction covered a separate offense and found no constitutional violation.
That is the ruling the Supreme Court left in place when it declined review. Recent terms have also produced sharp splits on election rules and emergency relief, including cases where the Court left a mail-ballot injunction intact over conservative pushback.
Sotomayor did not leave the double-jeopardy concern buried in a quiet denial. Joined by Gorsuch, she wrote that the government’s approach raised basic problems under settled doctrine.
She framed the core issue in plain terms:
"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,"
She added a short verdict on that logic:
"That makes sense."
And she closed with a direct instruction to the lower courts:
"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,"
The New York Post noted another piece of the bind: in the government’s eyes, whether Herrera-Salazar stayed in eastern Oklahoma or left the United States, he would be breaking the law. Supervised release ordered him to remain. Immigration law treated his presence as a crime. Either path exposed him to new charges before his eventual deportation.
That is the “Hobson’s choice” sitting underneath the justices’ warning. It is also why two members of the Court called the episode a constitutional absurdity even while accepting that the petition itself was not a vehicle for a full ruling.
Sotomayor is a liberal justice appointed by former President Obama. Gorsuch is a conservative justice and President Trump’s first Supreme Court appointee. They do not vote together as a routine pair.
Their joint statement therefore carried extra weight. It was not a campaign speech. It was a doctrinal flag about continuous conduct, time markers, and repeated charging for the same underlying offense of being “found in” the United States after removal.
The Washington Examiner reported that the justices released the statement alongside the Court’s decision not to hear the Mexican national’s appeal, underscoring that the criticism and the denial traveled together.
Institutional fights around the Court have been loud in other lanes this cycle, from emergency-docket transparency to political pressure. GOP senators have defended the Court when it came under partisan fire, and separate battles continue over how much the justices should explain shadow-docket orders.
This matter cut differently. No one claimed Herrera-Salazar was a lawful resident. No one claimed the government lacked an interest in prosecuting illegal reentry. The dispute was narrower: once the first conviction covered continuous unlawful presence, could prosecutors simply pick a new date, charge the same continuous crime again, and call it a fresh offense?
Sotomayor and Gorsuch said the Constitution’s double jeopardy guarantee points the other way. They also said they hoped the facts “are anomalous.”
The practical outcome is straightforward. The Supreme Court denied review. The 10th Circuit’s “separate offenses” holding stands for now. Herrera-Salazar has already been deported after serving both sentences.
Breitbart reported the same arc: a second charge while he was still under supervised release that required him to remain in the country, followed by a formal critique from Sotomayor and Gorsuch of repeated charges for continuous uninterrupted conduct.
Illegal reentry cases are a staple of federal dockets in border and interior districts alike. Prosecutors lean on “found in” charges because they match how repeat crossers are actually encountered. The justices did not revise that statute. They warned that stacking successive prosecutions onto one unbroken stretch of unlawful presence can collide with the Double Jeopardy Clause when the conduct never stopped.
That warning lands in a Court already juggling high-profile disputes over executive power and election administration, including a decision that cleared a Trump mail-in ballot order ahead of the midterms and another that allowed federal database screening of voter rolls.
Liberal justices have also pressed for fuller written explanations on the emergency docket as those fights multiply, a theme visible when Kagan and Jackson called for more written rulings amid a run of Trump administration wins.
Herrera-Salazar’s petition never became that kind of landmark. It became a caution label attached to a denial.
Nothing in the Sotomayor-Gorsuch writing hands illegal immigrants a free pass. The man at the center of the case was prosecuted, sentenced twice, and removed. The border offense remained a border offense.
What the statement does is tell trial and appellate judges to stop treating unbroken unlawful presence like a vending machine for serial indictments keyed only to new calendar dates. Continuous crime doctrine is not a technicality invented this week. The justices said existing precedent and the clause’s basic logic already point that way.
For prosecutors, the message is operational. Charge cleanly. Prove distinct offenses when they truly are distinct. Do not manufacture a second jeopardy out of the same ongoing presence by sliding the time marker and filing again.
For the public, the episode shows two other things at once. First, immigration enforcement can and does end in removal, even after tangled supervision terms. Second, constitutional limits still bind the government when it prosecutes, including in illegal reentry cases that voters rightly expect to see taken seriously.
Law and order is not a slogan that erases the Fifth Amendment. Secure borders and honest charging rules are supposed to work together. When supervised release orders a person to stay, and immigration law treats that same presence as a fresh crime, the paperwork has failed before the jury is even sworn.
Sotomayor and Gorsuch named that failure without turning the denial into a victory for the petitioner. The Court would not hear the case. The deportation already happened. The constitutional problem, they said, should not happen again.
Enforce the border. Deport repeat illegal crossers. And stop asking the Double Jeopardy Clause to pretend one continuous offense is two just because the calendar moved.