Sotomayor and Gorsuch Question a Second Illegal Reentry Conviction for a Man Told Not to Leave His District

Interior of the U.S. Supreme Court courtroom — Supreme Court Interior, Washington, D.C.
Photo Credit: LOC, Highsmith, Carol M., 1946-, photographer

Two justices from opposite wings of the Court say prosecutors may have charged the same continuing crime twice. The case is over, but the statement gives defense lawyers a new argument in one of the most common federal prosecutions in the country.

Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, warned on Tuesday that the Constitution’s ban on double jeopardy may bar the government from convicting a deported man twice of being “found in” the United States when, between the two cases, federal authorities had ordered him to stay put. The two justices agreed with the Court’s decision not to hear Herrera-Salazar v. United States, No. 25-6989, in part because the petitioner has since been removed. But they called the outcome a “constitutional absurdity” and urged lower courts not to repeat it, a message aimed squarely at the federal courts that now see nearly 20,000 illegal reentry cases a year.

The statute at the center of the case, 8 U.S.C. 1326(a), makes it a felony for a person who has been removed to enter, attempt to enter, or be “at any time found in” the United States without permission. The “found in” clause is what makes the law easy to use: prosecutors do not need to prove when or where someone crossed, only that immigration authorities discovered the person here. Sotomayor asked what happens when the government has already found and convicted that person, then kept him here under its own supervision.

Ordered to stay, then charged for staying

Herrera-Salazar had been removed several times between 2005 and 2015. In 2020 he was found in Brownsville, Texas, pleaded guilty under section 1326(a), and received 15 months in prison and two years of supervised release. After his release in June 2021 he moved to Oklahoma, where, according to both documents, he was told not to leave the Eastern District of Oklahoma. A traffic stop in Heavener, Oklahoma, on April 1, 2022, led to a second “found in” indictment. A jury convicted him, and he was sentenced to 21 months and three more years of supervised release.

The Tenth Circuit upheld the second conviction in an unpublished decision in September 2025. It reasoned that the statute does not require a fresh removal and reentry before each charge, so each discovery is a separate offense. Sotomayor wrote that this logic would allow repeated “found in” charges after a single reentry. Relying on the Court’s 1889 decision in In re Nielsen, she treated unlawful presence as one continuing crime that lasted until the government let him leave, and pointed to Brown v. Ohio (1977), which bars dividing “a single crime into a series of temporal or spatial units.” Herrera-Salazar, she wrote, faced a “Hobson’s choice”: stay in Oklahoma and commit a new crime, or leave the country and violate his release terms.

The Solicitor General’s office opposed review, arguing that the statute’s text supports separate prosecutions, that no conflict among the circuits warrants review, and that the unpublished Tenth Circuit ruling binds no future case.

Why a statement with no legal force still matters

A statement respecting the denial of certiorari is not a ruling, and lower courts are free to ignore it. In practice, these statements often work as an invitation. Federal defenders now have language from two justices to cite in motions to dismiss whenever a client already convicted under section 1326 is charged again without having left the country in between.

The volume of cases explains why the issue could recur. According to the U.S. Sentencing Commission, courts reported 18,204 illegal reentry offenses in fiscal year 2025, up 57 percent from 11,563 in fiscal 2021. That is about 27 percent of the 66,662 federal cases reported to the Commission that year, a calculation from its figures. The Commission also reports that 97 percent of those sentenced went to prison, the average sentence was 10 months, and 25 percent received a guideline increase for a prior illegal entry conviction. With reentry prosecutions rising, more people are likely to finish a reentry sentence while still inside the United States, which is precisely the setting where the double jeopardy question arises.

The cleanest test case would be a defendant who is prosecuted again while still under supervision and who has not yet been removed, so the dispute cannot slip away the way this one did. The statement puts the question on the record and leaves the next move to the circuits. The government, for its part, can sidestep the problem without any change in law by removing people after they serve their sentences instead of returning them to supervision inside the country.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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