In the long tension between procedural law and public safety, a federal judge in San Diego ordered the release of an MS-13 member convicted of murder abroad, finding that immigration officials held him for nearly five months without the individualized hearing the Constitution requires. The ruling did not declare the man innocent or safe — it declared the government's process insufficient. This moment joins a growing body of cases where the machinery of enforcement and the architecture of due process grind against one another, leaving communities, courts, and officials to reckon with what justi
MS-13 member released after judge finds ICE violated due process in detention
A victim was shot in the chest, back, and face during a 2014 gang execution in El Salvador; a homeless man was allegedly attacked with a machete in California in 2023.
No process before or after his detention
Mark
So a federal judge released someone convicted of murder. That's the headline, right?
Mimi
The headline is narrower than that. The judge didn't say Aviles Perez was innocent or that he wasn't dangerous. She said ICE held him for five months without doing the paperwork the law requires—without a bond hearing, without assessing whether he was actually a flight risk or a public danger.
Luke
But he was convicted of an execution-style murder in El Salvador and allegedly attacked someone with a machete here. Why does procedure matter if the facts are that serious?
Mimi
Because procedure is how we know the government isn't just locking people up on a hunch. The judge's point was: you can detain someone, but you have to show your work. You have to hold a hearing. You have to make an actual determination.
Mark
And ICE didn't do that?
Mimi
According to the judge, no. They held him for five months without ever conducting an individualized assessment of danger or flight risk.
Luke
One thing to flag: we don't know if Aviles Perez is still in the country or where he is now. The court order says he was released from federal custody. That's all we know.
Mark
So the DHS Secretary says this puts Americans in danger. Is that a fair reading of what happened?
Luke
It's a political reading. The judge's ruling doesn't say Aviles Perez is safe or that he should never be detained. It says if you're going to detain him, you have to follow the law first.
Mimi
And this is the second time he's been released in California. The first time was after the machete incident—he was convicted but released, apparently because of how California handles immigration cooperation.
Mark
So the system failed twice?
Mimi
Different systems, different reasons. But yes, twice he's been out when the government wanted him detained.
O Pulso
- David Aviles Perez — an MS-13 member convicted of an execution-style murder in El Salvador and accused of a machete attack in California — walked free from a San Diego detention facility after nearly five months in custody without a required bond hearing.
- Federal Judge Jinsook Ohta ruled narrowly but firmly: immigration officials never conducted the individualized assessment of danger or flight risk that the Fifth Amendment demands before prolonged detention.
- The ruling did not clear Aviles Perez of wrongdoing — it exposed a procedural failure by ICE, which provided 'no process before or after his detention,' according to the judge.
- DHS Secretary Markwayne Mullin erupted in condemnation, calling the judge a 'radical activist' and blaming California's sanctuary policies for enabling what he described as a pattern of dangerous releases.
- ICE is now barred from re-detaining Aviles Perez without first holding a bond hearing before an immigration judge, setting a procedural threshold the administration has signaled it intends to challenge rather than accept.
In the long tension between procedural law and public safety, a federal judge in San Diego ordered the release of an MS-13 member convicted of murder abroad, finding that immigration officials held him for nearly five months without the individualized hearing the Constitution requires. The ruling did not declare the man innocent or safe — it declared the government's process insufficient. This moment joins a growing body of cases where the machinery of enforcement and the architecture of due process grind against one another, leaving communities, courts, and officials to reckon with what justice actually demands.
David Antonio Aviles Perez, a 35-year-old MS-13 member known as 'the witch,' walked out of the Otay Mesa Detention Center in San Diego on August 26 after a federal judge ordered his immediate release. His history is severe: in 2014, he and an accomplice chased a man through a mountainous region of El Salvador, forced him to kneel, and shot him in the chest, back, and face. Both men were convicted in absentia, and Aviles Perez received a 20-year sentence for aggravated murder.
Years later, Aviles Perez surfaced in California. In 2023, he was arrested in Monterey after allegedly swinging a machete at a homeless man in a public park. He was convicted in that incident but later released — a release ICE attributed to California's sanctuary policies limiting local cooperation with federal immigration authorities. ICE arrested him again in March of this year in San Diego and began removal proceedings, holding him at Otay Mesa for nearly five months.
After that stretch without a bond hearing, Aviles Perez filed a legal challenge. U.S. District Judge Jinsook Ohta ruled in his favor — not on the question of his danger, but on the question of process. She found that immigration officials had never conducted the individualized assessment of public safety risk or flight risk that federal law requires before prolonged detention. The government, she wrote, offered no evidence it had considered those facts before locking him away. She ordered his immediate release and barred ICE from detaining him again without first holding a bond hearing.
The ruling drew fierce condemnation from the Trump administration. DHS Secretary Markwayne Mullin called Ohta a 'radical activist judge' who had endangered American lives by releasing a wanted murderer, and vowed that enforcement efforts would continue undeterred. Ohta, appointed to the state bench by Governor Gavin Newsom and later confirmed to the federal bench by the Senate in 2021, issued a ruling that neither exonerated Aviles Perez nor found him harmless — it found only that the government had skipped the legal steps required to justify holding him.
David Antonio Aviles Perez walked out of the Otay Mesa Detention Center in San Diego on August 26 after a federal judge ordered his immediate release. The 35-year-old MS-13 member, known by the nickname "the witch," had been held by immigration officials for nearly five months without a bond hearing—a procedural requirement that U.S. District Judge Jinsook Ohta found violated his Fifth Amendment rights.
Aviles Perez's path to that courtroom began in 2014 in El Salvador, where prosecutors say he and another gang member chased a man through a mountainous region in La Unión. Once cornered, the victim was forced to kneel while being held by the shoulders. Aviles Perez and his accomplice then shot the man in the chest, back, and face. Both defendants were tried and convicted in absentia, and Aviles Perez received a 20-year sentence for aggravated murder.
Years later, Aviles Perez entered the United States at an unknown date and location. In 2023, he was arrested in Monterey, California, after allegedly swinging a machete at a homeless man in Laguna Grande Park near Monterey State Beach. He was charged and convicted in that incident but was subsequently released from custody. Immigration and Customs Enforcement blamed California's sanctuary policies, which restrict local law enforcement cooperation with federal immigration authorities, for his release.
On March 26 of this year, ICE agents arrested Aviles Perez again, this time in San Diego, and placed him in removal proceedings. He remained at Otay Mesa Detention Center as officials prepared to deport him to El Salvador. But after nearly five months in custody, Aviles Perez filed a legal challenge to his detention.
Judge Ohta's ruling focused narrowly on procedure rather than Aviles Perez's guilt or danger. She found that immigration officials had held him without conducting what the law requires: an individualized assessment of whether he posed a threat to public safety or was likely to flee. "Although Petitioner appears to have previously been convicted following a fight with another individual in May 2023, 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," Ohta wrote. She noted that federal officials provided "no process before or after his detention" and had not demonstrated that holding a bond hearing would burden the government.
The judge ordered Aviles Perez's immediate release and barred ICE from detaining him again without first holding a bond hearing before an immigration judge. A status report filed the day after the release order confirmed that Aviles Perez had been released from federal custody.
The decision ignited sharp criticism from the Trump administration. Department of Homeland Security Secretary Markwayne Mullin called Judge Ohta a "radical activist judge" who had "put American lives at risk by releasing a wanted murderer." He noted that this was the second time Aviles Perez had been released in California and blamed what he characterized as sanctuary politics for endangering innocent Americans. Mullin vowed that DHS and ICE would not be deterred by the ruling and pledged to continue immigration enforcement efforts.
Ohta, who was appointed to the San Diego County Superior Court by California Governor Gavin Newsom in December 2020, was later nominated by President Joe Biden to the U.S. District Court for the Southern District of California in September 2021. The Senate confirmed her that December. The ruling itself did not exonerate Aviles Perez or find that he posed no danger—it addressed only whether immigration officials followed the legal process required to justify his detention.
Citações Notáveis
This radical activist judge has put American lives at risk by releasing a wanted murderer. This is now the SECOND time this dangerous illegal has been released back onto the streets in California.— DHS Secretary Markwayne Mullin
Although Petitioner appears to have previously been convicted following a fight with another individual in May 2023, 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.— Judge Jinsook Ohta
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