A man convicted in El Salvador of an execution-style gang murder has been released from federal immigration custody in San Diego County after a judge ruled that officials held him for nearly five months without ever giving him a hearing to determine whether he was dangerous or a flight risk.
U.S. District Judge Jinsook Ohta ordered the immediate release of David Antonio Aviles Perez, 35, known as “the witch,” finding that immigration authorities violated his Fifth Amendment right to due process by detaining him without an individualized assessment.
Salvadoran prosecutors identified Aviles Perez as an active MS-13 member. He and another gang member were convicted in absentia in December 2025 and sentenced to 20 years for aggravated murder in a 2014 killing in La Unión, El Salvador. Prosecutors said the two chased a man through a mountainous area, where other gang members forced him to kneel before Aviles Perez and his accomplice shot him in the chest, back and face.
Aviles Perez entered the United States at an unknown date, according to the Department of Homeland Security. He was arrested in Monterey, California, in 2023 after allegedly swinging a machete at a homeless man in Laguna Grande Park near Monterey State Beach and hiding the weapon in a nearby hotel parking lot. He was charged and convicted in that case but was later released from custody, which DHS attributes to California’s sanctuary policies limiting cooperation with federal immigration officers.
ICE arrested him a second time in San Diego on March 26 and held him at the Otay Mesa Detention Center pending removal to El Salvador. He remained there without a bond hearing until Ohta ordered his release on Aug. 26.
What the ruling actually found
Aviles Perez filed a petition after nearly five months in custody arguing his detention was unconstitutional. Ohta agreed, writing that the government had 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,” despite his prior 2023 conviction.
“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.”
The judge found that federal officials gave Aviles Perez “no process before or after his detention” and had not shown that holding a hearing would impose an undue burden on the government. She ordered his immediate release and barred ICE from detaining him again unless an immigration judge first holds a bond hearing and finds renewed detention justified. The ruling did not clear him of wrongdoing or find that he posed no danger to the public — it addressed only whether the government followed required legal procedure before detaining him.
A status report filed Aug. 27 confirmed DHS had released Aviles Perez from federal custody.
Political reaction
DHS Secretary Markwayne Mullin criticized the decision sharply. “This radical activist judge has put American lives at risk by releasing a wanted murderer,” he said in a statement Saturday. “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.”
Mullin said the administration would continue its enforcement efforts regardless of the ruling. “DHS and ICE will not be deterred by these partisan games,” he said. “If California’s leaders won’t protect Americans, DHS will.”
California Gov. Gavin Newsom appointed Ohta to the San Diego County Superior Court in December 2020. President Joe Biden later nominated her to the U.S. District Court for the Southern District of California in September 2021; the Senate confirmed her that December.
Fox News Digital reported reaching out to Ohta’s office for comment on the release.
