Full Breakdown
Sotomayor and Gorsuch Call Double-Jeopardy Claim a “Constitutional Absurdity” in Immigration Prosecution
By Drooid · · How we work
Core Event
On Tuesday, April 7 2026, the U.S. Supreme Court declined to review an appeal filed by Jesus Herrera-Salazar, a Mexican national prosecuted twice for illegal re-entry after removal. Justice Sonia Sotomayor and Justice Neil Gorsuch called the case a “constitutional absurdity.”
Background of the Herrera-Salazar Prosecutions
Herrera-Salazar was first arrested in 2020 for illegal re-entry, pleaded guilty, served a prison term and was placed on supervised release with a restriction against leaving the Eastern District of Oklahoma. While under that restriction, police stopped him in Heavener, Oklahoma, and charged him again under the same statute. A jury convicted him a second time, adding another prison sentence and supervised-release period.
The 10th Circuit rejected his double-jeopardy argument, holding that each discovery of unlawful presence can support a separate prosecution because the offense is considered complete when authorities locate the individual.
Timeline of Legal Proceedings
- 2020 – First arrest, guilty plea, imprisonment.
- Supervised release – Prohibited departure from the Eastern District of Oklahoma.
- 2024 – Second arrest in Heavener; conviction on the same ground.
- 2024 – Deportation to Mexico after serving both sentences.
- Feb 2025 – 10th Circuit upholds the second conviction.
- April 7 2026 – Supreme Court denies certiorari; Sotomayor and Gorsuch issue joint statement.
Official Statements & Responses
Justice Sotomayor, joined by Justice Gorsuch, said the government forced Herrera-Salazar to choose between staying in the Eastern District under supervised release or facing another prosecution for the same continuous conduct. They warned that allowing successive prosecutions based solely on the passage of time would let the government charge a defendant repeatedly for each day of continued unlawful presence.
Both justices stressed that their concern was the Fifth-Amendment protection against double jeopardy, not the legality of Herrera-Salazar’s presence, and urged lower courts to give the Double Jeopardy Clause its full weight.
Verbatim Quotes
- “From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson's choice,” — Justice Sonia Sotomayor
Data & Statistics
- Two convictions for the same immigration offense (2020, 2024).
- Supervised-release restriction limited him to the Eastern District of Oklahoma.
- Two prison sentences imposed.
- Deportation completed in 2024.
Why It Matters
The joint statement shows a rare cross-ideological alignment on a constitutional issue, emphasizing the Court’s role in interpreting the Double Jeopardy Clause in immigration cases. If lower courts follow the 10th Circuit’s reasoning, the government could initiate new prosecutions each time an illegal immigrant is discovered, even without a new illegal entry. The justices’ warning may influence appellate decisions involving repeated immigration prosecutions.
What’s Next
The Supreme Court has not scheduled further review of Herrera-Salazar’s case. The justices’ statement may shape how lower courts address double-jeopardy challenges in immigration contexts moving forward.