Supreme Court: Declines Herrera-Salazar Double Jeopardy Case

• The Supreme Court declined to review Jesus Herrera-Salazar's double jeopardy claim regarding repeat 'found in' charges.
• Herrera-Salazar was prosecuted twice under 8 U.S.C. § 1326(a) for being unlawfully present, despite being ordered to remain in the U.S. during probation.
• The 10th Circuit affirmed his second conviction, interpreting the law to allow multiple charges from a single unlawful reentry.
• Justices Sotomayor and Gorsuch highlighted 'serious constitutional problems' with the government's approach, calling Herrera-Salazar's situation a 'Hobson's choice'.
• The Court's inaction leaves the 10th Circuit's broad interpretation intact, potentially exposing individuals to limitless prosecutions.

The Supreme Court's refusal to intervene means the 10th Circuit's broad interpretation stands, allowing for potentially 'repeated, limitless 'found in' charges' for a single unlawful reentry.

Jesus Herrera-Salazar, an immigrant from Mexico, faced a complex legal predicament that ultimately led to the Supreme Court's recent decision not to intervene in his double jeopardy claim. His journey began with a deportation on February 12, 2015. Following this, he knowingly reentered the United States and was subsequently apprehended by Border Patrol agents near Brownsville, Texas. He was charged and pleaded guilty to being unlawfully 'found in' the U.S. after deportation, a violation of 8 U.S.C. § 1326(a).

For this initial offense, Herrera-Salazar received a sentence of 15 months in prison, followed by two years of probation. Upon his release in June 2021, specific conditions were imposed: he was explicitly barred from returning to Mexico and mandated to remain within Oklahoma for the duration of his probation. However, on April 1, 2022, he was arrested again in Heavener, Oklahoma, and charged with the identical offense of being unlawfully 'found in' the United States. The government contended that these were two distinct violations of the same statute, despite his compelled presence in the country. Herrera-Salazar's attempt to dismiss the second indictment was unsuccessful, leading to a jury conviction and a subsequent sentence of 21 months in prison with three years of probation. He then appealed to the 10th Circuit, arguing a clear violation of his double jeopardy rights, but the appeals court rejected his argument and affirmed his sentence.

The Supreme Court recently opted not to hear arguments in the case, effectively declining to address the significant double jeopardy questions raised by Jesus Herrera-Salazar's situation. This decision leaves undisturbed the 10th Circuit's interpretation of 8 U.S.C. § 1326(a), a federal criminal statute that prohibits the reentry of removed migrants. The 10th Circuit had concluded that the 'allowable unit of prosecution' for being 'found in' the U.S. does not necessitate a separate reentry attempt for each violation. Consequently, under this interpretation, multiple charges can stem from a single unlawful reentry, allowing for repeated prosecutions even when an individual is under government supervision and unable to leave the country.

By denying certiorari, the Supreme Court avoided ruling on whether such repeated prosecutions for the same underlying act of unlawful reentry, particularly when the individual is compelled to remain within U.S. borders by probation terms, violate the Double Jeopardy Clause of the Fifth Amendment. This inaction means the legal precedent set by the 10th Circuit, which permits successive 'found in' charges, remains in effect across its jurisdiction.

Despite the full Court's decision to deny review, Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued a concurring statement highlighting profound concerns. Justice Sotomayor underscored the 'serious constitutional problems' inherent in the government's treatment of Herrera-Salazar. She described his predicament as a 'Hobson's choice': from the moment of his release, he was legally barred from returning to Mexico and ordered to remain in Oklahoma. Yet, in the government's view, both remaining in Oklahoma and attempting to leave the U.S. would constitute a violation of the law.

Justice Sotomayor questioned whether the 'found in' language of 8 U.S.C. § 1326(a) was truly intended to apply to an individual already identified by the government and compelled to stay within the country under supervision. She asserted that even if such a broad interpretation of the statute were accepted, a second conviction under these circumstances is 'difficult to square' with the fundamental protections of the Double Jeopardy Clause. She emphasized that this constitutional right is not 'such a fragile guarantee' that prosecutors can simply divide a single crime into multiple offenses based on timing and location, which she argued was precisely what occurred in Herrera-Salazar's case.

The Supreme Court's refusal to intervene means the 10th Circuit's broad interpretation stands, allowing for potentially 'repeated, limitless 'found in' charges' for a single unlawful reentry. This outcome has significant implications for non-citizens facing similar charges under 8 U.S.C. § 1326(a), particularly those who are under probation or other forms of government supervision that restrict their movement. The lack of Supreme Court clarification leaves a critical constitutional question unanswered, potentially exposing individuals to successive prosecutions for their continued presence in the U.S., even when that presence is mandated by legal conditions.

Justice Sotomayor's strong dissent, joined by Justice Gorsuch, serves as a powerful warning about the potential for constitutional overreach when an individual is caught in a legal bind where compliance with one order leads directly to a new criminal charge. The Court's inaction on the Supreme Court Herrera-Salazar double jeopardy case means that the vulnerability of individuals to these repeated prosecutions, despite the compelling arguments about the Double Jeopardy Clause, remains a pressing concern within the legal system.

Lawyers advising non-citizens facing 'found in' charges under 8 U.S.C. § 1326(a) should note the Supreme Court's refusal to clarify double jeopardy protections, leaving the 10th Circuit's broad interpretation intact. This means individuals can face repeated prosecutions for a single unlawful reentry, even when compelled to remain in the US, necessitating robust constitutional arguments despite the lack of Supreme Court intervention.

Source: Original reporting via Courthouse News Service