On Tuesday, October 13, 2026, the Supreme Court quietly declined to hear a case that two of its justices say exposes something deeply wrong in how the government prosecutes immigration offenses. In the sotomayor gorsuch immigration case — formally Jesus Herrera-Salazar v. United States, No. 25-6989 — the Court denied the petition for a writ of certiorari, as it does with the vast majority of appeals. But Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued a rare statement respecting the denial, warning of the “serious constitutional problems that plague the Government’s treatment of Herrera-Salazar” and urging lower courts to “avoid the constitutional absurdity that occurred here.”
The pairing is the story as much as the substance. Sotomayor, appointed by President Barack Obama and an anchor of the Court’s liberal wing, and Gorsuch, appointed by President Donald Trump and one of its most prominent conservatives, rarely speak with one voice — but on the question of whether the government can prosecute the same man twice for what amounts to one continuous offense, they found common ground.
What the Sotomayor Gorsuch Immigration Case Decided — and Didn’t
To be precise about what happened on Tuesday: the sotomayor gorsuch immigration case did not produce a ruling. The Court’s one-line order reads, in full: “The petition for a writ of certiorari is denied.” Attached to that denial is the “Statement of Justice Sotomayor, with whom Justice Gorsuch joins, respecting the denial of certiorari” — a genre of writing justices use when they agree the Court should not take a case but want to flag an issue for future litigation.
Sotomayor was explicit that she concurred in the denial. “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,” she wrote. With the petitioner already deported and both sentences served, a ruling would have had limited practical effect for him — the kind of mootness concern that routinely drives denials.
But the statement’s real audience is not Herrera-Salazar. It is every lower court that will confront the same fact pattern tomorrow. “Should circumstances like these arise again,” Sotomayor wrote, “I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”
How Jesus Herrera-Salazar Was Prosecuted Twice for Being ‘Found In’ America
The facts, drawn from the petition’s summary of the record and the justices’ statement, read like a bureaucratic trap.
Jesus Herrera-Salazar, a Mexican national, was removed from the United States in 2015. He later returned without authorization and was found near Brownsville, Texas, in 2020. Federal prosecutors indicted him on one count of being “found in” the United States following removal, in violation of 8 U.S.C. § 1326(a) — the federal illegal-reentry statute. He pleaded guilty and served 15 months in federal prison.
What happened next is what troubled the justices. Upon his release, Herrera-Salazar was not deported. Instead, prison officials handed him a bus ticket to Oklahoma and told him to report there for supervised release. He testified that his probation officer instructed him not to leave the state. The statement notes he was “expressly instructed not to leave the Eastern District of Oklahoma” while on supervised release.
In 2022, an officer pulled him over in a traffic stop in Heavener, Oklahoma, discovered he was unlawfully present, and the government indicted him again under the very same statute — §1326(a) — relying on the very same 2015 removal order. A jury convicted him. He received another 21 months of imprisonment, followed by more supervised release.
He had never left the country and reentered between the two prosecutions. The government simply picked a second date on which he was “found in” the United States and charged him again.
The Double Jeopardy Question in the Sotomayor Gorsuch Immigration Case
The Fifth Amendment’s Double Jeopardy Clause bars the government from prosecuting a person twice for the same offense. The sotomayor gorsuch immigration case turns on whether being “found in” the United States is a single, continuing offense — or a fresh offense each time the government happens to find you.
The Tenth Circuit Court of Appeals, which heard Herrera-Salazar’s appeal, concluded the two prosecutions could be treated as separate offenses. But the petition argued that ruling conflicts with decisions from the Fifth, Seventh, and Ninth Circuits on how long a “found in” offense lasts — a classic circuit split of the kind the Supreme Court often steps in to resolve.
Sotomayor and Gorsuch questioned the Tenth Circuit’s conclusion. Their core point: when a crime involves continuous, uninterrupted conduct, the government cannot manufacture a second prosecution simply by selecting a different time marker. Under the logic the lower courts accepted, the government could bring new charges for each day of a person’s continued presence — including days spent incarcerated.
The facts made the abstraction concrete. Herrera-Salazar was ordered by the government not to leave Oklahoma — then prosecuted by the government for being found in Oklahoma. He was, in effect, breaking the law regardless of his actions: leave the district and violate supervised release, or stay and risk another §1326 prosecution.
Why the Sotomayor Gorsuch Immigration Case Drew a Cross-Ideological Response
Statements respecting the denial of certiorari that attract a cross-ideological co-signer are rare, and this one is rarer still for who signed it. Sotomayor and Gorsuch sit at opposite ends of the Court’s ideological spectrum, yet the sotomayor gorsuch immigration case statement marks another entry in their unlikely record of agreement on criminal-justice questions.
The two justices agreed roughly 62 percent of the time during the most recent term, and they have teamed up before to flag issues they believe deserve the Court’s attention in future cases — often involving the rights of criminal defendants, limits on government power, and the fair application of federal statutes. Gorsuch, in particular, has built a reputation as a conservative justice willing to side with liberal colleagues when he believes the text of the Constitution or a statute demands it.
That history is what gives the statement its weight. When justices from the Court’s liberal and conservative wings agree that something is a “constitutional absurdity,” lower courts and the Justice Department tend to listen — even when, as here, the Court has declined to issue a binding ruling.
What Happens Next After the Sotomayor Gorsuch Immigration Case
Because the Court denied review, the Tenth Circuit’s ruling stands — for Herrera-Salazar, who has since been removed from the country. But the sotomayor gorsuch immigration case is best understood as a warning shot rather than a final word.
First, the circuit split persists. With the Fifth, Seventh, and Ninth Circuits reading the “found in” offense differently than the Tenth, similarly situated defendants in different parts of the country face different double-jeopardy rules. The petition flagged that conflict explicitly, and splits of this kind are among the strongest predictors that the Court will eventually take a case.
Second, the statement functions as an invitation. By describing the “serious constitutional problems” in detail and urging courts to give the Double Jeopardy Clause “its full weight and meaning,” Sotomayor and Gorsuch have effectively published a roadmap for defense lawyers bringing the next challenge — and a signal to district judges that at least two justices are watching how these prosecutions are handled.
Third, the case lands in a moment of intense focus on immigration enforcement. As StateLineDaily previously reported, federal agents searched the Washington-area home of Representative Ilhan Omar in an immigration-fraud probe, and the administration’s reported plan to revoke protected status for Ukrainian refugees has put enforcement tactics under a national microscope. Against that backdrop, a bipartisan judicial rebuke of prosecutorial overreach carries added resonance.
The full text of the Court’s order and the justices’ statement is available through the Legal Information Institute at Cornell Law School here.