Herrera-Salazar v. United States: Two Justices Question Repeat Illegal Reentry Charges

The Supreme Court declined to hear Herrera-Salazar v. United States on October 13, 2026. But Justice Sotomayor, joined by Justice Gorsuch, wrote a statement warning that the government's second illegal reentry prosecution of the same man raised "serious constitutional problems" under the Double Jeopardy Clause.

What happened

8 U.S.C. § 1326(a) makes it a federal crime for a person who was removed from the United States to enter, attempt to enter, or be "found in" the country without permission.

Jesus Herrera-Salazar was charged in 2020 with being "found in" the United States after removal. He pleaded guilty and served his prison term. While on supervised release, he was expressly told not to leave the federal district where he was being supervised. During that supervision, he was stopped by police, arrested, and charged again under the same law. A jury convicted him, and he received a new prison term and a new term of supervised release.

The Tenth Circuit rejected his double jeopardy objection. As the statement describes it, the court reasoned that each "found in" charge was a separate offense, even though both rested on the same single reentry.

What the statement says

The Fifth Amendment says no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." That protects against a second prosecution for the same offense after a conviction.

Justice Sotomayor's statement made three main points:

• It is "not clear" that being "found in" the United States can cover someone the government has already found and ordered to stay here under supervision.
• Being found in the country after an unlawful reentry is a continuing crime. Under Brown v. Ohio, 432 U.S. 161 (1977), prosecutors cannot avoid the Double Jeopardy Clause by "dividing a single crime into a series of temporal or spatial units."
• The objection is even stronger when the government itself forbids the person from ending the unlawful conduct. Here, staying in the district or leaving the country would each have broken the law in the government's view.

She agreed with the decision not to take the case, because she hoped the facts were "anomalous" and because Herrera-Salazar has since been removed. She ended by encouraging courts, if this happens again, "to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning."

From my perspective

A statement respecting the denial of certiorari is not a ruling. It does not change the law, and lower courts are not bound by it. The Tenth Circuit's decision still stands.

What the statement does is put two Justices on record about a specific fact pattern: a second "found in" charge brought while the person was under a court order not to leave. Anyone facing a § 1326 charge on facts like these should make sure the double jeopardy objection is raised and preserved in the trial court, so it is not lost if the issue reaches the Court in a later case.

For more on how these cases work, see my page on federal immigration crimes. Book a consultation and tell us what happened.