On Monday, the Supreme Court rejected a request to hear a case because it’d become moot since the petitioner filed it, but Justice Sonia Sotomayor and Neil Gorsuch raised concerns about the constitutional problems it posed. In Jesus Herrera-Salazar v. United States, the petitioner, Jesus Herrera-Salazar, argued that he was wrongly prosecuted twice for being in the country illegally after the government barred him from leaving the United States.
By the time the case reached the Supreme Court, Herrera-Salazar had already been removed from the country, leading the justices to deny review. But Sotomayor and Gorsuch wrote a separate note explaining the “serious constitutional problems” that “plague the government’s treatment of Herrera-Salazar,” surrounding double jeopardy. Herrera-Salazar was indicted in 2020 for being “found in” the United States after previously being removed, which is a federal crime.
He pleaded guilty and served a prison sentence. After his release, however, he was told not to leave the Eastern District of Oklahoma because he remained under federal supervision. While he was under restrictions not to leave the state, he was pulled over for a traffic violation and charged with being unlawfully “found in” the United States.
A jury convicted him, and he was once again imprisoned and given supervised release. Herrera-Salazar argued that the second prosecution violated the Fifth Amendment’s Double Jeopardy Clause, which protects people from being prosecuted twice for the same offense. The Tenth Circuit rejected his argument, concluding that the two prosecutions could be treated as separate offenses under the immigration statute.
Sotomayor and Gorsuch questioned that conclusion. The justices noted that Herrera-Salazar didn’t leave the country and reenter between the two prosecutions, so they weren’t separate offenses. The justices said this was “difficult to square” with the Constitution’s double jeopardy clause.
The government argued that they were two separate crimes because he was “found in” the United States in 2020 and then “found in” Oklahoma, constituting two separate violations. Lawyers also argued that if courts sided with Herrera-Salazar, someone who stayed in the United States illegally could be “forever immune from punishment” unless they were removed and reentered the United States. The Tenth Circuit ruled that a person didn’t need a separate reentry to be charged for a separate offense, which the justices argued meant a person could be subjected to limitless charges.
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