Supreme Court Turns Away Immigration Double Jeopardy Case While Sotomayor Flags Constitutional Flaws

The Supreme Court issued a broad orders list on Tuesday, denying review in an immigration case that drew sharp criticism from two justices, granting three new cases for argument, and turning away dozens of other petitions.

In the case of Jesus Herrera-Salazar v. United States, the court declined to hear an appeal regarding whether a person can be prosecuted twice for being “found in” the country without legal authorization while under federal supervision.

Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued a statement agreeing with the decision not to take the case because Herrera-Salazar has already been removed from the country, but she used the writing to address the legal issues surrounding his prosecution.

According to the statement, Herrera-Salazar pleaded guilty in 2020 to one count of being found in the country following a prior removal. After serving his prison sentence, he was placed on supervised release and ordered not to leave the Eastern District of Oklahoma. During a routine traffic stop in Heavener, Oklahoma, authorities arrested and indicted him again under the same statute. A jury convicted him, resulting in a second prison term and an additional period of supervised release.

“Because I hope the facts of this case are anomalous and because Herrera-Salazar has since been removed from the United States, I concur in the Court’s decision not to grant review in this case,” Sotomayor wrote. “I write, however, to underscore the serious constitutional problems that plague the Government’s treatment of Herrera-Salazar.”

Sotomayor argued that the second conviction conflicted with the Fifth Amendment’s Double Jeopardy Clause, which protects people from being prosecuted twice for the same offense. She noted that under the terms of his initial supervised release, federal rules barred Herrera-Salazar from leaving the area.

“From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice,” Sotomayor wrote. “In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law. While Herrera-Salazar was caught in this bind, the Government prosecuted and punished him yet again for being ‘found in’ the United States, even though all agree he was forbidden to leave the United States.”

Sotomayor added that the government’s approach treated a single, continuous presence in the country as separate offenses based on different dates. “Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning,” she wrote.

The court also added three new disputes to its argument calendar by granting certiorari in U.S. DOGE Service v. U.S. District Court for the District of Columbia, Blanche v. Ozurumba, and Berry v. United States.

In four other matters, the court issued summary dispositions, granting review, vacating earlier lower-court rulings, and sending the cases back for further consideration in light of recent precedent. Those remanded cases include Roofing Designs by JR, L.L.C. v. Royal American Construction, Inc., Silva Ochoa v. United States, Monsanto Co. v. Dennis, and Hobson v. United States.

The justices denied two emergency stay applications brought by Carl Gordon in lawsuits naming California Governor Gavin Newsom and a federal district judge.

In an order involving petitioner James E. Whitney, the court barred him from filing future in forma pauperis petitions in noncriminal cases, citing repetitive filings. Justice Ketanji Brown Jackson dissented from that sanction, writing: “I respectfully dissent from the orders barring this incarcerated petitioner from filing future in forma pauperis petitions in noncriminal matters.”

The remainder of the release included denials of more than 100 other petitions for review, as well as orders rejecting several petitions for habeas corpus, mandamus, and rehearing.

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