Judge Releases MS-13 Killer ‘The Witch’ From ICE Custody

A federal judge in California has ordered the release of an MS-13 gang member wanted for aggravated murder in El Salvador from U.S. Immigration and Customs Enforcement (ICE) custody, igniting a firestorm of criticism from the Trump administration and law enforcement officials. U.S. District Judge Jinsook Ohta ruled that immigration officials violated the Fifth Amendment due process rights of David Antonio Aviles Perez, 35, by holding him for nearly five months without a bond hearing or an individualized determination of whether he posed a danger to the public or was a flight risk.

Aviles Perez, known as “La Bruja” or “The Witch,” was arrested by ICE in San Diego on March 26 on an international warrant for aggravated murder. He had been held at the Otay Mesa Detention Center pending removal to El Salvador, where he was convicted in absentia in December 2025 and sentenced to 20 years in prison for a July 2014 execution-style gang killing.

The Ruling and Its Rationale

In her written ruling, Ohta found that the government failed to provide Aviles Perez with adequate procedural protections during his detention. “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 wrote.

The ruling did not clear Aviles Perez of wrongdoing or determine that he posed no danger. Rather, it focused narrowly on whether immigration officials followed the required process to justify keeping him detained. Ohta ordered his immediate release and barred ICE from detaining him again unless an immigration judge first holds a bond hearing and determines that renewed detention is warranted.

A status report filed in the case on August 27 confirmed that Aviles Perez was subsequently released from federal custody, according to DHS.

DHS Condemnation

DHS Secretary Markwayne Mullin issued a strongly worded statement on September 5, accusing the judge of endangering public safety. “This radical activist judge has put American lives at risk by releasing a wanted murderer,” 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. DHS and ICE will not be deterred by these partisan games. If California’s leaders won’t protect Americans, DHS will.”

The case marks the second time Aviles Perez has been released in California. He was previously arrested in Monterey in August 2023 after allegedly swinging a machete at a homeless man at Laguna Grande Park. He was charged and convicted of assault with a deadly weapon, possession of a controlled substance, and petty theft, but was released under California’s sanctuary policies rather than being turned over to federal immigration authorities.

An anonymous federal law enforcement official told the New York Post that such releases are becoming increasingly common. “Criminal aliens are being released from ICE custody by activist judges on courts across the country,” the official said. “These judges are becoming emboldened by the failure of lower-level federal prosecutors to appeal their increasingly extreme decisions due to staffing and resource constraints. We should all feel scandalized by that.”

A Broader Legal Battle

The Aviles Perez case is part of a much larger legal conflict over the Trump administration’s expanded mandatory detention policy. Under previous administrations, most undocumented immigrants with no criminal record who were arrested inside the U.S. were allowed to seek bond hearings while their immigration cases were pending. Mandatory detention was typically reserved for those apprehended at the border.

In 2025, the administration issued guidance expanding mandatory detention to include undocumented immigrants inside the U.S. as part of the president’s mass deportation plan. This triggered numerous lawsuits from immigrants seeking release from custody.

On July 30, the Ninth Circuit Court of Appeals dealt a significant blow to that policy, ruling 2-1 that the government for more than 30 years has treated people detained inside the U.S. differently than immigrants apprehended at the border. Judge Daniel Bress, a Trump appointee, wrote for the majority that “we have 30 years of action — the government actively treating unadmitted aliens present in the interior of the country as entitled to bond hearings,” as CalMatters reported.

Four other appeals courts have also rejected the policy, while the Fifth and Eighth Circuits have ruled in favor of the federal government. This deepening circuit split raises the likelihood that the U.S. Supreme Court will ultimately take up the case, as Fox News noted.

Sanctuary Policies Under Scrutiny

California’s sanctuary law, SB 54, passed in 2017, prohibits state and local law enforcement from using resources for federal immigration enforcement. It bars police from asking about immigration status, detaining individuals solely for ICE, or sharing information with immigration authorities, with limited exceptions.

DHS has repeatedly criticized these policies, arguing they allow dangerous criminals to be released back into communities. The Justice Department filed suit against Los Angeles over its sanctuary city policies in June 2026.

A Related Release

On the same day Ohta ordered Aviles Perez’s release, Judge Linda Lopez, also a Biden appointee on the same court, ordered the release of Luis Valle, a Salvadoran convicted of first-degree murder in Los Angeles in the early 1990s. Valle had been released from state prison on parole in 2025 and was being held by ICE pending removal. Lopez ruled there was “good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future.”

What’s Next

The Aviles Perez case highlights the fundamental tension between the Trump administration’s immigration enforcement priorities and judicial interpretations of due process requirements. While DHS has vowed that the ruling will not deter its enforcement efforts, the legal landscape remains unsettled as courts across the country issue conflicting rulings on mandatory detention.

Key questions remain unanswered: Where is Aviles Perez now, and has he been recaptured? Will the government appeal Ohta’s ruling or seek a bond hearing? And how will the Supreme Court resolve the circuit split on mandatory detention?

For now, the case serves as a flashpoint in the ongoing national debate over immigration enforcement, sanctuary policies, and the limits of executive authority in an era of mass deportation.