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The Supreme Court covered a wide range of immigration news on Tuesday, led by an improbable coalition. Two justices on opposite ideological sides criticised the government’s prosecution of a Mexican. Their claim leaves an awkward issue to ponder: If their act of illegal re-entry is, in appearance, the same act, is it double punishment to pursue them?
What Happened in the Case
The case is Herrera-Salazar v. United States, which is an illegal reentry case that is pending in the Supreme Court without a ruling on the merits. Jesus Herrera-Salazar illegally crossed the border many times, prosecutors said. Found in Texas in 2020 and sentenced to prison. Supervised release meant that he had to remain in the country under close police surveillance, and he was found in Oklahoma and was charged with a crime again. He was removed after serving both sentences.
The Law Behind the Charges
The charges are based upon the federal illegal reentry statute, 8 U.S.C. Section 1326. It is aimed at those who are coming back from deportation or are residing in the country illegally. This “found in” language is present in all illegal reentry prosecutions because the government may focus on the date the reentry was discovered and not the date that he or she crossed. Herrera-Salazar said that the Oklahoma discovery merely came after his conviction in Texas, and was a second conviction for the same act.
The Double Jeopardy Question
At the root of this is a double jeopardy immigration issue. The First Amendment prohibits the government from putting a person at risk of punishment more than once for the same crime (double jeopardy). The Tenth Circuit illegal reentry ruling, however, disagreed with Herrera-Salazar, ruling that his convictions applied to separate offences. That was not changed by the Supreme Court.
What the Justices Wrote
It’s a Sonia Sotomayor immigration opinion that’s joined by Justice Gorsuch, so it’s a Neil Gorsuch immigration case contribution too. Sotomayor said that if there’s a continuous crime involved, it doesn’t matter if the government comes after a different period of time — they can’t do it again. She said she hoped courts would not fall into the “constitutional absurdity” that has happened here.
Both judges ruled the Court should not rule on the case because Herrera-Salazar was already deported. With that being said, they were hoping that his facts were the exception. If the Supreme Court inquires after the re-prosecution of offenders and judges it according to party lines, it will be noticed by the lawyers and the lower courts.
Not a Binding Ruling
Don’t misunderstand this as a Supreme Court double jeopardy decision. No statement is precedent, and declining review is not a decision on the merits. Nevertheless, it provides a guide to future litigants on how to make the case.
Why It Matters
The statement has several areas of law in it:
- Immigrant double jeopardy rights are not to be tarnished with “creative charging” strategies.
- Non-citizens in federal criminal court have fundamental constitutional rights, despite the government’s sweeping immigration powers.
- Repeated illegal reentry charges now have two justices to call to mind for immigrant criminal defence attorneys.
The Wider Enforcement Picture
The case is filed in the US deportation system and criminal prosecution, where multiple criminal charges may be filed on top of deportation. Reentry cases have been a part of federal prosecution of undocumented immigrants for years, and when an immigrant is deported with criminal charges, the potential exposure increases with each deportation and conviction. These are among the most serious consequences of illegal immigration that are provided for by law.
This episode is not an attack on removal per se, but rather contributes to the larger debate concerning constitutional challenges to deportation laws. It illustrates for those who follow US immigration law 2026 how criminal doctrine and immigration policy are increasingly coming together in US immigration cases before courts and federal criminal dockets. Be aware of the US immigration controversy developments that will let the justices know if another petitioner, who does not have a finalised removal action but a live dispute, will bring the issue back before the justices.
Key Takeaways
- On October 13, 2026, the Court refused to hear Herrera-Salazar.
- Sotomayor and Gorsuch pointed out that the “time of the conduct” can be moved forward, meaning that the continuous conduct may not be charged repeatedly.
- This statement is not legally binding.
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