Attorneys Demand Release of Wrongfully Arrested WA Wildland Firefighter

Immigration attorneys are demanding federal officials release a wildland firefighter arrested last month on the Olympic Peninsula.

Lawyers for the Portland-based Innovation Law Lab and the Northwest Immigrant Rights Project filed a federal lawsuit Friday on behalf of Rigoberto Hernandez, seeking his immediate release from the Northwest Immigration and Customs Enforcement Processing Center in Tacoma, where he's being held.

“The unlawful and dangerous actions of ICE, Border Patrol and Homeland Security under this administration have caused chaos, instilled fear in communities and torn families apart,” Isa Peña, the Law Lab’s director of strategy, said at a news conference Friday morning in Portland.

Immigration officials arrested Hernandez and another wildland firefighter, who is not named in the lawsuit, in late August as the Bear Gulch fire they were working was burning into the rugged territory of Olympic National Park. Their contract firefighting crew had been ordered into a remote area with no cell service when the federal officials arrived.

The attorneys argue that not only was Hernandez wrongfully arrested but also that immigration authorities violated his constitutional rights after the fact. This is emerging as a common critique as the federal government, under President Donald Trump, increases immigration enforcement actions.

Throughout a nationwide immigration push, federal officials, who often mask their identities and offer little or no information about themselves or their targets, have arrested both United States citizens and others legally allowed to live and work in the country. White House Deputy Chief of Staff Steven Miller said this summer that the administration was aiming for a “minimum” of 3,000 arrests by immigration authorities every day.

When immigration officers approached Hernandez, he invoked his Fifth Amendment right to remain silent, said Rodrigo Fernandez-Ortega, staff attorney at the Law Lab. The agents had no warrant or reasonable suspicion and instead racially profiled Hernandez and arrested him in retaliation for his silence, Fernandez-Ortega said.

Once in custody, immigration officials concealed Hernandez’s whereabouts from his family and lawyer for 48 hours, Fernandez-Ortega said. Online inmate locaters have not been updated to include his information.

“Federal agencies do not get to pick and choose which laws to follow,” Fernandez-Ortega said.

If U.S. Customs and Border Patrol can unlawfully detain someone in secret, without notice or access to counsel, “then no ones’ due-process rights are safe,” Fernandez-Ortega said.

Brought to this country when he was about 4, Hernandez was raised between Oregon, Washington and California by his farmworking parents, Peña said. He moved to Oregon three years ago to work as a wildland firefighter and has been waiting for a determination on his work visa application for more than seven years.

More specifically, Hernandez applied for a “U visa,” Fernandez-Ortega said. His family had been the victims of a felony and his father’s testimony helped the federal government secure a conviction in that case, he said.

U visas are meant to offer protected status to the victims of these types of crimes and to encourage cooperation with law enforcement. But due to the country’s massive backlog in a broken immigration system, Hernandez’s U visa application is still pending, said the Law Lab's legal director, Jordan Cunnings.

Past presidential administrations have followed the policy that without “exigent circumstances,” agents would not conduct their operations at natural disaster or emergency sites or arrest those with pending applications.

Under Trump, however, that policy is apparently not in effect. Hernandez and the second firefighter were arrested at the state’s then-largest wildfire during a Red Flag Warning, which indicates extreme fire danger. Two contract fire crews were sent to a remote area without cell service and asked to cut wood for the community. Their supervisor never showed up; instead, unmarked federal vehicles arrived.

News of the arrests quickly spread throughout the country, drawing outrage and condemnation from immigrant rights advocates and some public officials.

Several days after the arrests, the Law Lab wrote to U.S. Sen. Ron Wyden, D- Ore., pleading for his help. While Hernandez is now accused of entering the country illegally, that charge amounts to an “illegal after-the-fact justification,” the letter says. As such, any charge now would be “illegal, in bad faith and unsupported,” it says.

Hernandez’s arrest is indicative of a broader problem with the country’s current immigration policy, said Arianna Avena, of the Service Employees International Union’s Local 503. While the Trump administration claims the widespread arrests and detentions are meant to secure the country, the consequences tell a different story, she said.

“How is the federal government making us safer by upending the life of a law-abiding firefighter who is working so hard to protect us?” Avena said.

The Innovation Law Lab has seen multiple successes in seeking these types of requests to release inmates, Cunnings said. In part, that has been because the Trump administration’s immigration overreach has been so “egregious, she said.

Conditions in the Tacoma facility (and elsewhere) have been packed, largely because the administration has arrested so many people, Cunnings said. The facilities are unsafe, unsanitary and the functional equivalent of prison.

Allegations of fraud related to firefighters' time cards reportedly flagged Hernandez’s crew to immigration officials, Cunnings said. She expressed concern that emergency responders were collaborating with immigration authorities but said no additional details have emerged about the fraud allegations.

Hernandez does have a single misdemeanor conviction for “speed racing” on his record, Cunnings said. But the conviction wouldn’t disqualify him from his visa application, she said.

An unidentified representative for the U.S. Department of Homeland Security said in an email that the second firefighter was repeatedly deported and also convicted of delivering and selling methamphetamine.

But that conviction came more than a decade ago, the firefighter's brother told KGW8 news in Portland. He has since turned his life around, becoming a firefighter in the process, he said.

Assistant DHS Secretary Tricia McLaughlin attacked the media's coverage of the arrests and repeated the agency's incorrect assertions that the two arrested were not firefighters.

McLaughlin leveled additional criminal allegations against Hernandez but did not provide documentation to support the claims.

Cunnings said the lawsuit files a writ of habeas corpus, seeking Hernandez's release and also a temporary restraining order to express to the court the urgency of the matter and ideally expedite the process.

Seattle Times reporter Isabella Breda contributed to this report.

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