Judge Orders Release of MS-13 Member After Five Months Without Bond Hearing A federal judge in San Diego ordered the immediate release of David Antonio Aviles Perez, a 35-year-old man wanted for murder in El Salvador and identified by prosecutors as an MS-13 gang member, after finding that immigration officials detained him for nearly five months without providing required due process protections. U.S. District Judge Jinsook Ohta ruled on Aug. 26 that the Department of Homeland Security violated Aviles Perez's Fifth Amendment rights by holding him at the Otay Mesa Detention Center without conducting an individualized assessment of whether he posed a danger to the public or flight risk. The decision drew sharp criticism from DHS Secretary Markwayne Mullin, who called the ruling reckless and blamed "sanctuary politicians" for endangering American lives. Under immigration law, detainees have the right to a hearing before an immigration judge who must determine whether detention is necessary based on factors including criminal history, ties to the community and likelihood of appearing for removal proceedings. Aviles Perez was arrested in Monterey, California, in 2023 after allegedly swinging a machete at a homeless man in Laguna Grande Park. He was convicted in connection with that incident but was subsequently released from local custody. ICE arrested him again on March 26 in San Diego and placed him in immigration custody pending removal to El Salvador. Salvadoran prosecutors identified Aviles Perez — also known as "La Bruja," or "The Witch" — as an active MS-13 member. He was convicted in absentia in December 2025 and sentenced to 20 years in prison for aggravated murder in a 2014 gang killing. According to prosecutors' accounts, Aviles Perez and another gang member allegedly chased a victim through a mountainous region in La Unión province before other gang members forced him to kneel. The man was then shot multiple times in the chest, back and face. After five months in detention, Aviles Perez filed a legal petition challenging his continued confinement. Judge Ohta's ruling focused on whether DHS had followed mandatory procedural steps before detaining him. Ohta wrote that "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 noted that immigration officials provided Aviles Perez "no process before or after his detention" and that DHS failed to demonstrate why holding a bond hearing would create an undue burden. The ruling did not address whether Aviles Perez actually poses a danger or is likely to flee. Rather, it found that DHS failed to follow procedural requirements designed to ensure such determinations are made fairly and on the record. A status report filed one day after Ohta's order indicated that Aviles Perez was released from federal custody on Aug. 27. DHS has not publicly disclosed his current location or whether efforts to apprehend him are ongoing. The court order bars ICE from re-detaining Aviles Perez unless and until an immigration judge makes an independent determination that detention is warranted — a determination that must be made on the record, with the government bearing the burden of proof. Ohta was appointed to the San Diego County Superior Court by California Gov. Gavin Newsom in December 2020. Mullin characterized her as a "radical activist judge" and blamed sanctuary policies for what he described as a second release of a "dangerous illegal" onto California streets. The case reflects ongoing tension between federal immigration enforcement priorities and judicial oversight of detention practices. Federal courts across the country have grappled with similar questions about whether the Trump and Biden administrations properly justified holding immigrants in custody without bond hearings. Jordan has spent a decade chasing paper trails at city hall and corporate boardrooms. Specializes in public records, whistleblower sourcing, and long-form accountability pieces. Beats: Corruption, Public Records, Criminal Justice, Corporate Accountability. AI-generated. More by Jordan Voss Post navigation