Sotomayor, Gorsuch Critique Biden DOJ Decision To Re-Charge Illegal Migrant
Two Supreme Court justices from opposite sides of the ideological divide raised constitutional concerns Tuesday over the government’s decision to prosecute a Mexican national twice for illegally reentering the United States after deportation.
Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, questioned whether the second prosecution of Jesus Herrera-Salazar violated the Fifth Amendment’s protection against double jeopardy. The Supreme Court declined to hear his appeal, leaving his convictions in place, but Sotomayor issued a written statement joined by Gorsuch.
Herrera-Salazar was arrested in Texas in 2020 and charged with being unlawfully present in the United States after a prior deportation. He pleaded guilty and served a prison sentence. After his release, federal authorities placed him under supervision and ordered him to remain within Oklahoma’s Eastern District.
In April 2022, police stopped him in Heavener, Oklahoma. Federal prosecutors then charged him again based on the same deportation and return to the United States that had underpinned his first conviction. A jury found him guilty, and he received another prison sentence followed by additional supervised release.
Herrera-Salazar argued that the second prosecution punished him twice for the same continuing offense. The 10th U.S. Circuit Court of Appeals rejected that argument, ruling that the two convictions arose from separate violations of federal immigration law.
Sotomayor questioned that analysis. She argued that the government’s interpretation could permit repeated prosecutions for the same continuing conduct, even as authorities required Herrera-Salazar to remain in the United States while serving his supervision.
She also challenged the appeals court’s reading of the statute barring previously deported immigrants from being found in the country without authorization. In her view, the alleged offense involved continuous conduct, rather than a new criminal act each time authorities encountered Herrera-Salazar.
Under the government’s approach, Sotomayor warned, prosecutors could potentially bring new charges for each day a previously convicted person remained in federal custody. She said that interpretation could weaken the constitutional safeguard against repeated punishment for the same conduct.
Sotomayor described Herrera-Salazar’s situation as a “Hobson’s choice”: after serving his first sentence, he was required to remain in a specified part of Oklahoma, while his continued presence in the country became the basis for another prosecution.
Despite their concerns, Sotomayor and Gorsuch agreed that the court should not take up the appeal. Herrera-Salazar had completed both prison terms and was deported to Mexico in 2024. Sotomayor said she hoped the unusual circumstances would not recur, while urging lower courts to carefully consider the constitutional issue in future cases.
The court’s refusal to hear the appeal leaves Herrera-Salazar’s convictions intact. The justices’ statement, however, draws attention to the need for immigration prosecutions to comply with constitutional protections against double jeopardy.