DOWNTOWN SAN DIEGO
A San Diego federal judge came under heavy criticism over the weekend from the Trump administration for her recent decision to release an undocumented immigrant who is allegedly wanted for murder in El Salvador. But federal prosecutors acknowledged this week that they withheld information about the man’s criminal history from the judge, which meant she did not know about his allegedly violent past when she ordered his release.
U.S. District Judge Jinsook Ohta said during a hearing Tuesday in San Diego federal court that she would have ruled the man was a danger to the community and kept him in immigration custody if the very government that was criticizing her had properly informed her of the man’s criminal record.
Ohta authorized the government to re-detain the man, who was released last month and was not in attendance at Tuesday’s hearing, and then grant him a bond hearing with an immigration judge within two weeks.
U.S. Attorney Adam Gordon and his office, which represents the U.S. Department of Homeland Security and other federal government respondents in the case, said they made a “manifest error of law and fact” by failing to disclose the man’s criminal history. But they said it was an inadvertent and singular error made by Assistant U.S. Attorney Michael Wallace.
“My failure was an unintentional mistake, and I sincerely apologize to the Court for my omission,” Wallace wrote in a sworn declaration Monday.
“Your honor, we made a mistake,” Assistant U.S. Attorney Glen Dorgan told Ohta at the start of Tuesday’s hearing. “We made a mistake we regret.”
During the tense hearing, Ohta ordered her deputy to place Wallace under oath to answer questions about his mistake. Wallace initially resisted; after consenting, he declined to answer the judge’s questions. Gordon, who had been ordered by Ohta to appear at Tuesday’s hearing, said Wallace needed a chance to speak with legal counsel first.
Before Tuesday’s hearing, Ohta ordered the U.S. Attorney’s Office to show cause in writing by next Monday why she should not impose sanctions against Wallace and the office for their error.
Ohta told Gordon and his assistants Tuesday that there are times when judges make difficult and controversial decisions that are nevertheless based on law, but “this was not one of those cases.” Instead, she said it was the government, not her, that had been “callously irresponsible to the safety of the community” by withholding information about the man’s potential danger to the public.
The controversy surrounding Ohta’s decision to release David Antonio Aviles Perez from immigration custody appears to have started Friday, when the California Post and New York Post ran a story with a headline that called Ohta an “activist judge” who had freed a “Machete-wielding MS-13 executioner.” The story attributed the “activist” label to an anonymous federal law enforcement officer.
Court records showed that U.S. Immigration and Customs Enforcement officers detained Aviles in March. On Aug. 17, while being held at the Otay Mesa Detention Facility, he filed a habeas corpus petition without the help of an attorney, arguing in the formulaic petition that his continued detention without a hearing violated his constitutional due-process rights.
Habeas petitions have become a favorite tool of immigration detainees during the second Trump administration to seek release from custody on due-process grounds. Judges in San Diego and across the country have often sided with those petitioners, ruling the Trump administration has routinely violated the constitutional rights of immigrants it has detained. The violations often involve holding individuals too long without giving them a hearing, or revoking their immigration parole without a valid reason.
As part of the routine proceedings in a habeas case, Ohta ordered the government to respond to Aviles’ claims, including to provide individualized information about whether he might be a danger to the community.
According to the declaration of Wallace, the assistant U.S. attorney, ICE provided him with information that Aviles was wanted on an Interpol Red Notice and two active El Salvadoran arrest warrants allegedly related to a gang murder. But Wallace said he mistakenly failed to submit that information to Ohta.
She subsequently ruled that the government had violated Aviles’ due-process rights by not providing him a bond hearing, and without the information about his allegedly criminal past, she ordered that he be released with instructions to attend a later bond hearing with an immigration judge.
On Saturday, a day after the first news story ran, the Department of Homeland Security issued a news release with the headline: “Biden-Appointed Activist Judge in California Releases MS-13 Gang Member Wanted for Murder in El Salvador.” The agency posted similar assertions on social media.
“This radical activist judge has put American lives at risk by releasing a wanted murderer,” Homeland Security Secretary Markwayne Mullin said in the news release.
On Tuesday, DHS General Counsel James Percival appeared on FOX News during a segment about Ohta and slammed her decision.
“One thing that is not debatable is that murderers should be detained pending removal proceedings,” Percival said. “These are the types of people that the left believes should be your neighbors.”
What Percival did not disclose to viewers was that by the time he was making those claims Tuesday, the attorneys representing his agency had already filed their document Monday acknowledging their mistake. “The U.S. Attorney’s Office and Respondents sincerely apologize to the Court for this error,” the prosecutors wrote.
Ohta on Tuesday chastised DHS for its continued criticism of her even after its own attorneys admitted their error. She called it a “callous lack of responsibility of truth-telling to the public,” noting several instances in which DHS and its leaders continued criticizing her on Tuesday.
DHS did not respond to questions about the matter Tuesday. Gordon declined to comment after the hearing.