SAN DIEGO, Calif. – A federal judge ordered the release of an MS-13 member wanted on an international aggravated murder warrant in El Salvador, prompting a furious response from the Department of Homeland Security.
David Antonio Aviles Perez was arrested by ICE on March 26 and held at the Otay Mesa Detention Center for five months. U.S. District Judge Jinsook Ohta ordered his immediate release Aug. 26 after finding immigration officials had detained him without a bond hearing or an individualized determination of whether he presented a danger to the community or flight risk.
- DHS says Aviles Perez is an MS-13 member wanted in El Salvador on an international warrant for aggravated murder.
- Judge Ohta found his continued immigration detention without the required individualized process violated his constitutional rights.
- DHS condemned the decision, while the court barred ICE from detaining him again without first providing a bond hearing.
DHS Says Aviles Perez Is Wanted for Aggravated Murder
DHS describes Aviles Perez as a criminal alien and MS-13 gang member with an international warrant from El Salvador.
The department says the murder allegations involve an execution-style killing in which the victim was forced onto his knees and shot repeatedly.
DHS said Aviles Perez was known in El Salvador as “the witch.”
His U.S. history also includes a 2023 California arrest for assault with a deadly weapon, possession of a controlled substance and petty theft, according to DHS. The department said California authorities subsequently released him.
ICE arrested Aviles Perez in March.
The government says his entry into the United States was unlawful. Court records provide a more specific piece of the timeline, stating that Aviles Perez entered the country on Dec. 29, 2013 and had continuously resided here since then.
Judge Says ICE Detained Him Without Required Process
Ohta’s ruling did not determine that Aviles Perez was harmless or resolve the murder allegations against him.
Instead, the case centered on whether the federal government could continue holding him without an individualized detention determination.
Aviles Perez filed a federal habeas corpus petition Aug. 17 challenging his immigration detention.
The court found he had spent five months in custody without a bond hearing. Ohta ruled that the government had not given Aviles Perez sufficient process before or after detaining him and had offered no evidence that the burden of providing that process outweighed his liberty interest.
The government told the court a bond hearing had been scheduled. Ohta found that did not resolve the constitutional challenge because officials provided no evidence that the hearing had actually taken place.
She ordered Aviles Perez released.
The judge also prohibited the government from taking him back into immigration detention without first providing a bond hearing before an immigration judge.
Homeland Security Blasts Release
DHS responded publicly Saturday, characterizing Ohta as an “activist judge” and warning that Aviles Perez’s release endangered the public.
“This radical activist judge has put American lives at risk by releasing a wanted murderer,” Homeland Security Secretary Markwayne Mullin said.
“This is now the SECOND time this dangerous illegal has been released back onto the streets in California,” Mullin said.
The secretary also accused California officials of putting politics ahead of public safety.
“DHS and ICE will not be deterred by these partisan games,” Mullin said. “If California’s leaders won’t protect Americans, DHS will.”
Ohta was nominated to the federal bench by President Joe Biden in 2021. Before becoming a federal judge, she was appointed to the San Diego County Superior Court by California Gov. Gavin Newsom in 2020.
Release Does Not Erase the Salvadoran Murder Case
The federal ruling concerned Aviles Perez’s detention in the United States. It did not dismiss or adjudicate the aggravated murder case in El Salvador.
Nor did Ohta’s order prevent immigration authorities from pursuing removal proceedings.
The ruling instead addressed the process the government used to keep Aviles Perez detained while those proceedings continued.
That distinction sits at the center of the dispute. DHS argues Aviles Perez’s alleged history makes his release a public-safety threat, while Ohta ruled that the government still had to provide the process required before continuing to deprive him of his liberty.
ICE can seek to detain him again, but under Ohta’s order, the government must first provide a bond hearing before an immigration judge.
David Antonio Aviles Perez is wanted in El Salvador for aggravated murder.
DHS identifies him as an MS-13 member with an international warrant and says ICE arrested him in California on March 26.
The federal judge’s ruling dealt with his ICE detention.
Ohta found Aviles Perez had been held for five months without a bond hearing or individualized determination justifying continued detention.
DHS strongly condemned the decision.
Homeland Security Secretary Markwayne Mullin said the release endangered Americans and vowed that ICE would continue pursuing public-safety threats.
Sources: U.S. Department of Homeland Security; U.S. District Court for the Southern District of California.
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