THE DAILY BS: HOW MUCH CAN YOU HANDLE?
SPARE ME THE BS (I’ve got things to do).
- Justices Neil Gorsuch and Sonia Sotomayor questioned the repeated prosecution of Mexican national Jesus Herrera-Salazar for unlawful presence after removal.
- After his first conviction, supervised-release conditions restricted him from leaving the Eastern District of Oklahoma without permission.
- The Supreme Court declined to hear the appeal, but the two justices raised serious concerns about double jeopardy.
LAY IT ON ME (I’ve got time).
Imagine being told by a federal court that you must stay in a particular place — and then being prosecuted for staying there.
That’s the legal predicament that brought conservative Justice Neil Gorsuch and liberal Justice Sonia Sotomayor together in the case of Jesus Herrera-Salazar.
Herrera-Salazar, a Mexican national previously removed from the United States, was convicted of unlawfully being found in the country after deportation.
After serving his sentence, he was placed on supervised release with conditions restricting him from leaving the Eastern District of Oklahoma without authorization.
He was later discovered still in the United States and prosecuted again under the same immigration statute.
His attorneys argued that the second prosecution violated the Constitution’s protection against double jeopardy.
The 10th Circuit rejected that argument. But when the case reached the Supreme Court, Sotomayor and Gorsuch identified a serious problem.
“From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice,” Sotomayor wrote in a statement Gorsuch joined.
They described the predicament as a “constitutional absurdity.”
The justices weren’t saying the original immigration conviction was improper. Their concern was whether the government could prosecute the same continuing unlawful presence again, particularly when its own release conditions restricted the defendant’s movements.
The Supreme Court declined to review the case. Herrera-Salazar had already been removed from the country, and the two justices did not dissent from the denial.
So no conviction was overturned, and no new nationwide rule emerged.
But the warning was unmistakable: The government should not casually create a situation in which obeying one federal order becomes the basis for another federal prosecution.
When Gorsuch and Sotomayor agree that something looks constitutionally peculiar, it’s probably worth reading the fine print.
DBS WIRE SOURCES (I’ve got all day).
- Fox News — Gorsuch joins Sotomayor in questioning immigration prosecution
- U.S. Supreme Court — Opinions relating to orders
