A federal judge in California has ordered the release of David Antonio Aviles Perez, a convicted member of the MS-13 gang, from Immigration and Customs Enforcement (ICE) custody. Mr. Aviles Perez, 35, known by the nickname “La Bruja,” or “The Witch,” was wanted by authorities in El Salvador, where he had been sentenced to 20 years in prison for a brutal gang killing committed in 2014. U.S. District Judge Jinsook Ohta granted his habeas corpus petition, ruling that his continued detention without a bond hearing or an individualized determination of danger or flight risk violated his Fifth Amendment due process rights.
"This radical activist judge has put American lives at risk by releasing a wanted murderer." Markwayne Mullin, Homeland Security Secretary
Mr. Aviles Perez had been in federal immigration custody since March 26, following his arrest by ICE agents in San Diego. His arrest was part of an effort by U.S. authorities to remove him to El Salvador, where he was convicted in absentia. The Attorney General’s Office in El Salvador announced in December that Mr. Aviles Perez and fellow MS-13 member Ismael Enrique Mendoza Flores had each received 20-year sentences for aggravated homicide. Prosecutors detailed that the men and other gang members pursued their victim in Yucuaiquín before forcing him to kneel and shooting him multiple times in the chest, back, and face. Both men were identified as active members of MS-13.
The release of Mr. Aviles Perez immediately drew strong condemnation from the Department of Homeland Security (DHS). Homeland Security Secretary Markwayne Mullin issued a statement on Saturday, accusing Judge Ohta of jeopardizing public safety. "This radical activist judge has put American lives at risk by releasing a wanted murderer," Secretary Mullin stated. He added, "This is now the SECOND time this dangerous illegal has been released back onto the streets in California." DHS also posted on social media, reiterating their criticism and highlighting the severity of Mr. Aviles Perez's conviction.
Court records indicate that Mr. Aviles Perez later surfaced in California. In 2023, he was arrested in Monterey following allegations that he swung a machete at another man. DHS also notes previous arrests for possession of a controlled substance and petty theft. The New York Post reported that he was convicted after the California incident but was subsequently released. ICE arrested him again on March 26, citing the international warrant connected to the Salvadoran murder case.
The legal challenge leading to his recent release focused on the procedural aspects of his detention, not the validity of his Salvadoran conviction. On August 17, Mr. Aviles Perez filed a federal habeas corpus petition, arguing that immigration authorities had held him for nearly five months without a bond hearing or an individualized assessment of whether he posed a public danger or a flight risk. Judge Ohta, appointed to the San Diego County Superior Court by California Governor Gavin Newsom (D) in 2020 and later nominated to the U.S. District Court for the Southern District of California by then-President Joe Biden in 2021, ruled on August 26. She concluded that his continued detention under a discretionary section of immigration law entitled him to an individualized bond process.
Judge Ohta noted that while the government cited Mr. Aviles Perez’s previous California conviction, it had not demonstrated that these facts were considered in an individualized danger or flight-risk determination before his continued detention. The court stated, “The government has offered no evidence that it detained him after considering those facts and making an individualized determination of his danger to the public or flight risk.” Consequently, Judge Ohta ordered his immediate release and prohibited immigration officials from detaining him again under the same circumstances without first providing a bond hearing before an immigration judge.
This decision has intensified ongoing discussions regarding judicial discretion in immigration cases. One federal law enforcement official, speaking to the New York Post, expressed concern that judges across the the country are increasingly ordering the release of individuals identified as criminal illegal immigrants from ICE detention. This official suggested that federal prosecutors should challenge more of these decisions.
The Department of Homeland Security states Mr. Aviles Perez entered the U.S. at an unknown location, while his federal habeas petition claims he entered in December 2013 and has remained in the country since. Under President Donald Trump's administration, DHS has consistently emphasized arrests of suspected and convicted gang members, expanding immigration enforcement nationwide. Recent operations have led to hundreds of arrests, including those of MS-13 members. The release of Mr. Aviles Perez occurs amidst continuous legal battles over the detention and deportation of alleged MS-13 members, with federal judges in various cases requiring additional hearings or ordering detainees released while their immigration proceedings are underway. For Mr. Aviles Perez, the ruling does not negate his Salvadoran conviction or sentence; rather, it mandates that ICE must follow a specific bond process before any future detention under similar circumstances.
