A Biden-appointed federal judge ordered U.S. Immigration and Customs Enforcement (ICE) to release an illegal alien and active MS-13 member known as “the Witch” who was convicted in absentia of aggravated murder in El Salvador.
U.S. District Judge Jinsook Ohta granted David Antonio Aviles Perez’s habeas corpus petition on August 26 after ruling that immigration officials violated his Fifth Amendment due process rights by holding him for five months without a bond hearing or an individualized assessment of whether he posed a danger to the public or a flight risk.
The Department of Homeland Security (DHS) confirmed the release in a September 5 statement and accused Ohta of endangering 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. Because sanctuary politicians want to play politics from the bench, innocent Americans are in danger.”
Judge cites lack of individualized review
Aviles Perez filed the petition on August 17 in the U.S. District Court for the Southern District of California. Ohta’s order said he fell under the discretionary detention framework of 8 U.S.C. Section 1226 because he already lived in the United States when ICE arrested him.
The government said it had scheduled a bond hearing. Ohta found that officials presented no evidence that the hearing had occurred or that they evaluated Aviles Perez’s record before detaining him.
“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.
Ohta ordered his immediate release and prohibited ICE from detaining him again unless an immigration judge first holds a bond hearing. The ruling did not overturn Aviles Perez’s Salvadoran conviction or find that he posed no danger. It addressed whether federal officials followed the process required to justify his immigration detention.
Convicted in absentia
Aviles Perez and Ismael Enrique Mendoza Flores received 20-year prison sentences in December 2025 for an aggravated murder committed on July 2, 2014, according to Salvadoran prosecutors. The attorney general’s office said evidence showed the men and other gang members chased a victim in Yucuaiquín, forced him to his knees and shot him in the chest, back and face. Prosecutors identified both defendants as active MS-13 members and said the court convicted them in absentia.
ICE arrested Aviles Perez in San Diego on March 26 on an international warrant, DHS announced. The department identified him as an illegal alien and said his California history included a 2023 arrest for assault with a deadly weapon, possession of a controlled substance and petty theft.
Monterey police accused Aviles Perez of swinging a machete at a man during a 2023 argument and hiding the weapon afterward, the New York Post reported, citing an incident report. Local prosecutors confirmed his conviction, though the outlet did not identify the offense or sentence.
DHS said Ohta’s order marked his second release in California and blamed the state’s sanctuary policies for the first.
California Gov. Gavin Newsom (D) appointed Ohta to the San Diego County Superior Court in 2020, official records show. Biden nominated her to the federal bench on September 30, 2021, and the Senate confirmed her 47-24 on December 17, 2021.
The Dallas Express previously reported that ICE arrested three men, including an admitted MS-13 member, during a targeted Dallas operation in March.
Provided by Dallas Express
