# Sotomayor and Gorsuch question repeated immigration prosecution as court declines review

The justices raise double-jeopardy concerns in Herrera-Salazar’s case while agreeing not to take the appeal.

By The Signal Edition | News / Courts
Published: 2026-10-13T17:05:59.256871Z
Updated: 2026-10-13T17:05:59.256871Z
Canonical: https://www.thesignaledition.com/article/gorsuch-sotomayor-immigration-case-694k3i

## Summary
- The Supreme Court denied review on October 13.
- Gorsuch joined Sotomayor’s statement about constitutional concerns.
- The Tenth Circuit had affirmed the second conviction in September 2025.

## 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](https://www.law.cornell.edu/supremecourt/text/25-6989)

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](https://www.law.cornell.edu/supremecourt/text/25-6989)

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](https://www.law.cornell.edu/supremecourt/text/25-6989)

## 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](https://law.justia.com/cases/federal/appellate-courts/ca10/24-7029/24-7029-2025-09-26.html)

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](https://law.justia.com/cases/federal/appellate-courts/ca10/24-7029/24-7029-2025-09-26.html) [1](https://www.law.cornell.edu/supremecourt/text/25-6989)

## Reporting sources
1. [Supreme Court / Cornell Legal Information Institute: Herrera-Salazar v. United States, No. 25–6989](https://www.law.cornell.edu/supremecourt/text/25-6989) (October 13, 2026)
2. [Tenth Circuit / Justia: United States v. Herrera-Salazar, No. 24-7029](https://law.justia.com/cases/federal/appellate-courts/ca10/24-7029/24-7029-2025-09-26.html) (September 26, 2025)