By Isabelle Taft | New York Focus

This story originally appeared in New York Focus, a nonprofit news publication investigating power in New York. Sign up for their newsletter here.

For one Western New York man, an ongoing 10-month stint in federal immigration detention began with a suburban ritual: browsing at a mall department store.

On a Saturday evening in February, JMA, as he’s identified in court filings, was looking at belts at a Macy’s in Cheektowaga, outside of Buffalo. A security guard accused him of trying to steal one of the belts; JMA replied that he was shopping and hoping to purchase it, according to a court petition his lawyers filed. The guard called the police, who took him to the station and charged him with petty larceny, a misdemeanor.

A Cheektowaga police officer told JMA, a Cuban citizen, that his supervisor said he had to “call Border Patrol for noncitizens,” according to the petition. JMA has a pending application for permanent residency under a special program for Cubans, but a Border Patrol agent arrested him anyway. JMA’s shoplifting charge was later dismissed, but he has been held in a federal immigration detention center in nearby Batavia since.

JMA is one of at least 15 people taken into federal custody for immigration proceedings this year after Cheektowaga police called Border Patrol, according to documents obtained by New York Focus through public records requests. Five of the immigration arrests started with a call to Cheektowaga police by security guards at the Macy’s, according to incident reports. In several of the 15 cases, those arrested were not charged with crimes.

Some localities across New York have made headlines for entering into formal partnerships with federal immigration authorities, such as 287(g) agreements that empower local officers to enforce immigration laws, or contracts with local jails to hold immigration detainees. In Long Island’s Nassau County, for instance, police are authorized to conduct immigration arrests and the jail has held thousands of people for Immigration and Customs Enforcement this year.

Cheektowaga, a town of 90,000 about 10 miles from the Canadian border, has no such agreement. But immigration politics there have run hot since New York City bused hundreds of asylum seekers to local hotels in 2023, fueling a backlash that helped Republicans flip the town council and unseat a longtime Democratic state lawmaker.

Even without a legal partnership, Cheektowaga police call Border Patrol when they encounter people they suspect of being in the country illegally, or simply when they don’t trust their identification documents. In several cases that New York Focus identified, police officers initially contacted Border Patrol — a branch of US Customs and Border Protection, which has a presence at the airport in Cheektowaga — to verify someone’s identity and residency status. Some of their interactions with federal agents appear to push the bounds of what state law permits.

JMA’s attorneys argue that Cheektowaga police violated state law by detaining him while waiting for Border Patrol to arrive. A state appellate court ruled in 2018 that local police can’t detain people for civil immigration offenses — like overstaying a visa — without a warrant. That includes situations where police hold someone longer than needed to process their criminal charges so immigration agents can arrive to pick them up, Attorney General Letitia James wrote in 2020.

The incident report documenting JMA’s arrest was sealed, but Cheektowaga Police Captain Jeffrey Schmidt reviewed it at the request of New York Focus.

“It does appear from reading through the police report that he was released on an appearance ticket and continued to be held until Border Patrol came and retrieved him,” he said.

“If indeed we have stepped outside what the current guidance is by the state, including New York state case law that prohibits this type of activity, it will have to be addressed internally with the department, for sure,” Schmidt added.

Asked about JMA’s arrest and two other instances in which Cheektowaga police called Border Patrol, a spokesperson for the attorney general’s office said it “is aware and reviewing these incidents.”

Aaron Krupp, regional coordinator for the Buffalo-based advocacy organization Justice for Migrant Families, met JMA inside the immigration detention center in nearby Batavia about nine months ago and was struck by the story of how his detention began: “A mall cop saw a brown person walking through a Macy’s and assumed that he was shoplifting.”

Then the police got involved.

“The Cheektowaga police have absolutely no obligation whatsoever, legally speaking, to contact immigration enforcement,” Krupp said. “Yet they detained this person for a thing that was fairly obviously bullshit, and they held him until immigration enforcement could come over and pick him up.”

The Cheektowaga Police Department’s “Immigration Violations” policy, which Schmidt provided to New York Focus, states that officers “may detain” someone when they have “a reasonable suspicion” the person entered the United States in violation of a federal criminal law.

That could be when someone admits they came to the US illegally or offers immigration documentation that officers feel is dubious. “A lack of English proficiency may be considered” but should not be “the sole factor in establishing reasonable suspicion,” the policy says. The policy is copyrighted by Lexipol, a company that writes policies for thousands of law enforcement agencies around the country.

In early June, a Cheektowaga officer pulled over a vehicle with expired registration and an obstructed plate. The driver handed over his New York license, and all five of his passengers provided identification as well, according to an incident report. The officer noted they “spoke little to no English” and told him they were from Venezuela. He contacted Border Patrol, who arrested the driver and one of the passengers.

“Once they identified that they were not American citizens, that looks like that’s why our officers then reached out to Border Patrol,” Schmidt said.

In another case, police asked Border Patrol to verify a man’s identity and residency status while he was being held for shoplifting charges, after he initially gave police a false identity. The agency advised “that offender was indeed a U.S. citizen.”

Schmidt said that Cheektowaga officers will only detain someone facing immigration proceedings if they have a criminal immigration charge, such as illegal entry, or if they are also being charged with a state crime. But the police don’t have access to each person’s immigration record.

“We won’t really know if it’s a civil or criminal violation until after we’ve spoken with Border Patrol,” he said. “So what happens is, when we identify that someone is not a resident of this country, then we contact Border Patrol.”

As a result of the practice, low-level criminal allegations can yield major immigration consequences for Cheektowaga residents. In early October, police arrested a Venezuelan woman for stealing $37.46 worth of groceries from a Tops supermarket. Officers released her into Border Patrol custody. As of late November, she was detained at an ICE facility in Louisiana.

Officers do not seek out undocumented immigrants to conduct immigration enforcement, Schmidt said.

“Nobody in our department is authorized to target anyone based off of the color of their skin, based off the sound of their speech, at all,” he said. “We don’t do that. So I just want to make sure you get that out there.”

Ify Chikezie, a staff attorney at the New York Civil Liberties Union, said she was skeptical of the idea that Cheektowaga police need to contact Border Patrol to verify someone’s identity.

“That seems like a rationale that could be easily abused by local police departments,” she said.

The five cases that originated at Macy’s, located inside the Walden Galleria mall, involved accusations of stealing merchandise. In June, a security guard called the police on 20-year-old Anderson Contreras-Hernandez and accused him of stealing two pairs of Lacoste underwear valued at $90. After he showed police his work permit, according to the incident report, they called Border Patrol “to confirm his identification.” A Cheektowaga judge later dismissed the charges on the condition that he stay out of trouble for six months, but ICE didn’t release Contreras-Hernandez until he agreed to return to Venezuela, in a case the Investigative Post covered extensively.

Later that month, Cheektowaga police turned a man and a 16-year-old boy over to Border Patrol after two Macy’s security guards accused them of stealing about $300 worth of furs, according to incident reports. The officers called Border Patrol after the suspects told them they were from Colombia; Border Patrol said they were actually from Venezuela.

One of the security guards who made the initial call to police told New York Focus in a brief phone interview that he didn’t recall that interaction. He said Macy’s security doesn’t contact Border Patrol, and he didn’t know that Cheektowaga police do.

A Macy’s spokesperson told New York Focus that after reporting incidents to the police, “we are not involved in subsequent law enforcement or immigration decisions.”

New York lawmakers will reconsider legislation next year that would prohibit some of the interactions between Cheektowaga police and Border Patrol that have landed people in immigration detention. The New York for All Act, first introduced in 2020, would bar police officers from asking about citizenship or immigration status and from communicating with immigration authorities about when someone will be released from custody or have a court appearance.

State Senator Andrew Gounardes, a Democrat who introduced the bill this year, said he believes the increase in immigration arrests this year and reports of local law enforcement collaborating with ICE will add to the measure’s momentum, which is co-sponsored by the majority of Democratic state lawmakers.

“We’ve certainly seen an uptick in collusion and coordination that to us really undermines public safety, because if you really value public safety, you don’t want to have anyone in your community have a reason to not trust the police,” he said.

Another piece of legislation has the opposite aim of New York for All. The bill would require local law enforcement to notify ICE when they arrest someone who is not a US citizen.

“If someone is here illegally, and they’re here committing crimes, we want to be able to deal with that person and if need be remove them from our community,” said Assemblymember Patrick Chludzinski, a Republican who represents Cheektowaga and is one of the bill’s 30 Assembly co-sponsors. (All of the bill’s co-sponsors are Republicans, and it’s unlikely to pass the Democrat-dominated state legislature.)

Chludzinski, a former detective lieutenant in the Cheektowaga Police Department, won his seat by defeating the longtime Democratic incumbent last year in a race centered on immigration issues. Chludzinski argued that the process of busing asylum seekers from New York City had been poorly managed and opaque, and that the arrival of so many people strained local police and schools.

Chludzinski reviewed several incident reports at the request of New York Focus and said he was surprised by what he read.

“I think it’s a good thing that they cooperate,” he said. “But if you look at some of the case law in New York state, it looks like they’re entering a gray area.”

“I guess that’s part of the problem,” Chludzinski said. “It’s so unclear. It’s either gotta be one way or another.”