Sotomayor and Gorsuch question repeated immigration prosecution as court declines review

A statement accompanying denial

Justices Sonia Sotomayor and Neil Gorsuch raised constitutional concerns about repeated immigration prosecutions on October 13, even as the Supreme Court declined to review Jesus Herrera-Salazar’s case. Sotomayor wrote the statement, joined by Gorsuch, explaining why she agreed with the denial while objecting to the government’s treatment of the defendant. ^[1]

Her account says Herrera-Salazar was indicted in 2020 for being found in the United States after removal, pleaded guilty and served a prison term. During supervised release, he was expressly told not to leave Oklahoma’s Eastern District. A later traffic stop in Heavener led to another arrest and prosecution under the same statute. ^[1]

Sotomayor questioned punishing someone a second time for remaining in a country that his supervised-release conditions required him to stay in. She identified both statutory interpretation and the Fifth Amendment’s protection against double jeopardy as concerns. She nevertheless cited the unusual facts and Herrera-Salazar’s subsequent removal in agreeing not to grant review. ^[1]

The earlier appeals ruling

The Tenth Circuit’s September 26, 2025 decision affirmed the second conviction, rejecting double-jeopardy and insufficient-evidence arguments. The appeals court said removal after an earlier prosecution was not an element of a later offense of being found in the United States. It also treated the disputed prosecutions as separate violations under the statutory language. ^[2]

The appeals ruling states that the government presented no evidence that Herrera-Salazar left the country after his June 2021 prison release. It describes the dispute as a question about the statute’s unit of prosecution. Tuesday’s Supreme Court denial leaves that judgment in place; the accompanying statement expresses two justices’ concerns rather than a ruling overturning the conviction. ^{[2] [1]}