Sotomayor and Gorsuch flag constitutional risks in moot immigration double-jeopardy case

Jesus Herrera-Salazar faced two separate federal convictions for being "found in" the United States after his 2020 indictment and subsequent supervised release in Oklahoma. After serving his first sentence, he was barred from leaving the Eastern District of Oklahoma, yet a traffic stop led to a second prosecution, which he argued violated the Double Jeopardy Clause. The Tenth Circuit held that the offenses could be distinct under immigration statutes, a conclusion the Supreme Court found moot because Herrera-Salazar had already been removed.

Nonetheless, Justices Sonia Sotomayor and Neil Gorsuch issued a joint statement warning that the government's approach creates a constitutional absurdity, allowing endless charges without a new re-entry. They referenced Brown v. Ohio to argue that a single illegal presence should not be fragmented into multiple crimes. Both justices agreed the Court’s refusal to take the case was appropriate but urged lower courts to give full weight to the double-jeopardy protection.