author: POSNER, Circuit Judge.

text:
    Rigoberto VELASQUEZ-BANEGAS, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-2619
    United States Court of Appeals, Seventh Circuit.
    Argued December 1, 2016
    Decided January 19, 2017

      Ilan Wurman, Attorney, Winston & Strawn LLP, Washington, DC, Keren Zwick, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.
    Linda Y. Cheng, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    David Eli Farber, Attorney, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Amicus Curiae Lambda Legal Defense & Education Fund, Incorporated.
    Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
   POSNER, Circuit Judge.

The petitioner, a citizen of Honduras, entered the United States in 2005—with-out being authorized to do so—when he was 38 years old. He is now 49, still living in this country, still not authorized to live here. In 2014 the Department of Homeland Security began proceedings in the Immigration Court to have him removed from this country (i.e., deported) to Honduras. He applied for withholding of removal and also for protection under the Convention Against Torture, on the ground that he is highly likely to be persecuted if returned to Honduras. The immigration judge denied both applications and ordered him removed. The Board of Immigration Appeals affirmed summarily, and he appeals to us.

In '2007 he discovered that he was HIV positive. HIV, short for human immunodeficiency virus, is treatable, but often progresses to AIDS—acquired immunodeficiency syndrome—a very serious, and though treatable often fatal, condition. In the Immigration Court the petitioner argued (and in our court continues to argue) that he is entitled to remain in the United States because of acute danger that he faces if returned to Honduras, danger resulting from the fact that a great many Hondurans believe that AIDS is an affliction of homosexuals (often it is, but not always, as so many Hondurans believe), and also that any man with HIV is also a homosexual. Most important, a great many Hondurans are hostile—often violently so—to persons they believe to be homosexual. And for cultural reasons related to Hondurans’ belief about these two diseases, the medical treatment of both HIV and AIDS in Honduras is often deficient and often invasive of privacy, though poor medical service is not itself a form of persecution.

The petitioner testified without contradiction that “straight” Hondurans tend not only to despise homosexuals but also to perceive them as weaklings, and on both accounts to attack them physically. He presented evidence that many suspected homosexuals have been killed in Honduras out of sheer hatred and that the police often are complicit in, or refuse to investigate, these crimes. He testified that he’s not himself a homosexual but he reminds us (as we noted in the previous paragraph) that most Hondurans believe that any man who has either AIDS or HIV is homosexual. He fears that if returned to Honduras, as soon as he goes to a hospital for treatment of his HIV he will be “outed” as a presumed homosexual. And this is true, so far as appears, whether it is a private or a government-funded hospital—if the latter, the “outing” of him by the hospital might well be deemed explicit governmental persecution of presumed homosexuals.

He points out that persecution that does not result in death or serious bodily harm is still grounds for withholding of removal. E.g., Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011); Koval v. Gonzales, 418 F.3d 798, 805-06 (7th Cir. 2005). As we explained in Stanojkova,

Persecution involves ... the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity— that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded. The line between harassment and persecution is the line between the nasty and the barbaric, or alternatively between wishing you were living in another country and being so desperate that you flee without any assurance of being given refuge in any other country.

Suspicion of the petitioner’s being homosexual will be enhanced because, though now in his late forties, he has never married. There has always been suspicion, even in the United States, that a man who never marries may be homosexual or at least bisexual, meaning he’s sexually or romantically attracted to both men and women. The suspicion does not extend to heterosexual men who have such huge sexual appetites that they are unwilling to tie themselves to one woman, in marriage, but that is not our petitioner.

There is no suggestion that as a resident of the United States all these years, albeit an unauthorized resident, the petitioner has engaged in serious criminal conduct— his entire criminal record appears to be limited to a couple of minor offenses that resulted in his being jailed for 15 days—or has posed or poses any kind of threat to the nation’s health or welfare. He is, in short, harmless, and we can’t understand the immigration judge’s failure to take that into account in deciding whether to grant withholding of removal—also her failure to take into account the alarming and pertinent fact that Honduras has the highest crime rate in the western hemisphere. In fact, according to the U.N. Office on Drugs and Crime, Honduras has the highest homicide rate in the world—90.4 homicides per 100,000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig.1.5, www.unodc.org/documents/gsh/pdfs/2014_ GLOBAL_HOMICIDE_BOOK_web.pdf. This is a fact the immigration judge and Board of Immigration Appeals should have noted; neither did.

In fact the immigration judge made a hash of the record. A highly qualified American Ph.D. professor of Latin American studies, Suyapa Portillo, who specializes in the LGBTQ community (lesbian, gay, bisexual, transgender, and queer—an acronym that covers the entire spectrum of homosexual and related sexual orientations) in Honduras, testified as an expert witness for the petitioner. In the last 12 years she’s visited Honduras three to four times a year to conduct research. The immigration judge qualified Dr. Portillo to testify as an expert witness regarding “the experience of LGBTQ people in Honduras” and also of “HIV-positive people” in that country—overlapping groups, obviously— and having been thus qualified Dr. Portillo testified that it’s very difficult for people with HIV to find employment—employers often require proof that an applicant does not have HIV. She testified that since Honduras’s 2009 coup d’état (when the Honduran Army, following orders from the Honduran Supreme Court to oust President Manuel Zelaya, sent him into exile), more than 200 LGBTQ people have been murdered according to a pattern she thought indicated an “LGBT cleansing,” in which transgendered women were murdered with a single shot to the head and homosexual men tied up and mutilated. Dr. Portillo believes that the police are complicit in the murders and that laws purporting to protect LGBTQ people from assaults and murders are rarely enforced.

The immigration judge did not question the accuracy of Dr. Portillo’s testimony in the slightest, yej; deemed it irrelevant because it was “general”—it was about the LGBTQ community and about the typical experiences of Hondurans who have HIV rather than about the petitioner specifically. But realistically the evidence is specific to the petitioner because he fits the description of Hondurans who are at risk of persecution as a result of being believed (accurately or not) to be homosexual. The immigration judge demanded evidence that he would be persecuted if returned to Honduras, but failed to consider the feasibility of her demand. The petitioner left Honduras more than a decade ago; he’s hardly in a position, living in the United States, to assess the particular risk to him if he’s deported, as compared to the average HIV sufferer in Honduras or even the average HIV sufferer in Honduras who is middle-aged yet has never married. See 8 U.S.C. §§ 1281(b)(3); 1158(b)(l)(B)(ii).

No matter; to be a member of a group that faces a high probability of persecution in a foreign country is enough to establish that he’s at risk of persecution if deported to that country.

[I]n evaluating whether it is more likely than not that the applicant’s life or freedom would be threatened in a particular country on account of race, religion, nationality, membership in a particular social group, or political opinion, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for such persecution if: (i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and' (ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or .her life or freedom would be threatened upon return to that country.

8 C.F.R. § 1208.16(b)(2). That is an accurate description of this case.

It’s often said that an immigrant seeking withholding of removal must prove that he or she is more likely than not to suffer persecution if deported, see, e.g., INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and that belief may have informed the immigration judge’s insistence on proof that the petitioner will be persecuted if removed to Honduras. But in recent opinions we’ve explained that the “more likely than not test” should not be taken literally, for so taken it would mean that an applicant for withholding of removal who had a 50.1 percent probability of being persecuted (killed, let’s say) if deported would be entitled to withholding of removal, but not one who had only a 50 percent probability of being killed if deported. Not only is this an absurd example of line drawing, but it assumes unrealistically that such statistics can be computed. In fact “all that can be said responsibly on the basis of actually obtainable information is that there is, or is not,, a substantial risk that a given alien will be tortured if removed from the United States.” Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015). And therefore it should be enough to entitle the applicant to withholding of removal if there is a substantial, albeit unquantifía-ble, probability that if deported he will be persecuted. And that is Velasquez-Bane-gas’s' situation, given Dr. Portillo’s testimony—testimony accepted in toto, we emphasize, by the immigration judge. In the appendix to this opinion, we reprint, with slight editing, pages 5 to 7 of the immigration judge’s opinion, which is where she summarizes Dr. Portillo’s testimony— which, to repeat, she accepted in its entirety.

She accepted the petitioner’s evidence as well as Dr. Portillo’s, stating that “Having reviewed the [petitioner’s] testimony and documentary submissions, I find the [petitioner] credible. His testimony is internally consistent and consistent with his written statement. His testimony is also consistent ■with the other corroborative evidence in the record, including medical records and affidavits in support of his application.” What more could be required to justify granting withholding of removal?

Dr. Portillo testified without contradiction that “people with HIV are generally considered to be LGBTQ” and that the petitioner would not “be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that [he] would run into someone he knew while seeking treatment.” The ' immigration judge noted that other affidavits in the record (one by a native citizen of Honduras and another by a sociology professor who lived in Honduras for two years), stated that it is a “common belief in Honduras” that those with HIV are gay or lesbian, but this was not good enough for her because the affidavits had “cite[d] no data, reports, or examples.” But Dr. Portillo’s testimony that the immigration judge had accepted as truthful was uncontradicted evidence, from a qualified expert witness, that the petitioner will in all likelihood be unable to hide his HIV status and as such will be believed to be a homosexual and persecuted accordingly. Indeed he could hide it only by not seeking medical care for it, which would endanger his life.

In any event it was error for the immigration judge to suggest that the petitioner would be safe if he kept secret his HIV status. The law does not require people to hide characteristics like religion or sexual orientation, and medical conditions, such as being HIV positive. E.g., Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004). The immigration judge implies that the petitioner would be thought to be homosexual and for that reason persecuted unless he evaded his potential tormentors by pretending to be a very different person from what he actually is—a middle-aged HIV positive bachelor in a culture in which, should those characteristics be revealed, he would be in serious danger. The immigration judge would have sized up the danger to Velasquez-Banegas differently had she assumed the petitioner would live openly. Suppose a person if removed to his country of origin would be sure to be persecuted unless, by living in a cave, he avoided all contact with other persons. The next step would be to rule that no one can have a real fear of persecution because if persecution looms he can avoid it by committing suicide.

It’s true, as emphasized by the immigration judge, that the petitioner if deported will be returning to the region (Cómayag-ua, also the name of the major city in the region) where his parents and siblings live. The immigration judge thought this would protect him from the heavy crime activity in the region, because he would be associating mainly with people who had known him all his life and would know he was not a homosexual. But they and others would know that he was HIV positive, which Hondurans consider a badge of homosexuality; and they might conclude that he had become a homosexual after leaving Honduras for the United States, for Hondurans also tend to believe that homosexuality is a lifestyle choice rather than a person’s genetic destiny.

The immigration judge failed even to mention the petitioner’s testimony that an imputation of homosexuality to him is made more likely by his being middle-aged yet never married. This omission takes on a special irony given the judge’s criticism of petitioner’s evidence as being too general. Now maybe he could conceal his bachelor status, along with his HIV status, but in Muhur v. Ashcroft, supra, 355 F.3d at 960-61, we rejected the related proposition that “one is not entitled to claim asylum on the basis of religious persecution if (a big if, by the way) one can escape the notice of the persecutors by concealing one’s religion.” We noted that “Christians living in the Roman Empire before Constantine made Christianity the empire’s official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesn’t follow that Rome didn’t persecute Christians, or that a Christian who failed to conceal his faith would be punished for acting ‘unreasonably.’ ” Id. The law- -does not take a life of stealth as its starting point.

The immigration judge thought the most severe harm that could befall Velasquez-Banegas in Honduras would be inability to receive adequate medical care. But that proposition was inconsistent with her crediting Dr. Portillo’s testimony (as she did), as was the judge’s further statement that Velasquez-Banegas “[had] not established that -it [was] more likely than not that people [would] perceive him as LGBTQ”— though she had acknowledged that Dr. Portillo had “testified and stated in her affidavit that people with HIV are generally considered to be LGBTQ, which she attributes to a lack of information available to the public. She also testified that she does not believe that the petitioner would be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that the petitioner would run into someone he knew while seeking treatment. She also discussed a personal experience where she was extorted by police officers while on her way to a gay bar with friends who were members of the LGBTQ community. Three other affidavits in the record state generally that it is a common belief in Honduras that those with HIV are gay or lesbian, but cite no data, reports, or examples.... However, this evidence is insufficient to establish that the petitioner will likely have homosexuality imputed to him in Honduras, as it [this evidence] is general in nature, lacks objective data, and is not specific to the [petitioner].” What can the immigration judge have meant by that last sentence? The evidence, which certainly supports the proposition that Velasquez-Banegas -is likely to have homosexuality imputed to him in Honduras if he’s deported, is “general” because there is more than one person in Honduras with HIV, and is specific to the petitioner because he fits the description of Hondurans at risk of persecution because believed (accurately or not) to be homosexual. The judge also said, contradicting her crediting Dr. Portillo’s testimony (see Appendix below), that Portillo’s testimony that people in Honduras are uninformed and therefore tend to link homosexuality to HIV was not based on any report or evidence. It was based on her testimony, which was evidence—uncontoa-dicted evidence!

We have noted repeatedly that remand may be warranted when the agency overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after fuller evaluation of the record. See Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010); Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999). This is such a case. We therefore vacate the decisions of the Board and the immigration judge and remand the case for reconsideration in light of the analysis in this opinion.

Appendix (Quoted from the Immigration Judge’s Opinion)

Dr. Portillo testified that people with HIV, like the petitioner, are particularly vulnerable in Honduras. It is very difficult for such people to gain employment, because employers, particularly in the factory industry, require potential employees to present proof of a negative HIV test before being hired. Although this is illegal in Honduras, many private companies continue the practice with impunity.

Honduras has a socialized health care system, but those with money often use private doctors because of their superior quality and efficiency. She believes that private market care in Honduras is very expensive. She testified that hospitals often run out of medications, including HIV medication, which forces people to resort to self-medication or buying those medications in the private sector. She believes that the public health system’s problems stem from a military coup in 2009, which led to increased debt and corruption for the country. She testified that there are major hospitals and non-profit organizations who give medical care in the big cities in Honduras, but those who live in rural areas have to take a bus trip, often four to five hours long, to the city, where they must wait hours at the clinic for care. Also, the buses often do not run at night because of safety concerns. Dr. Portillo is not familiar with the particular medications that HIV patients take, and she has not studied or worked with doctors who treat patients with HIV.

She described her research regarding HIV testing in San Pedro Sula, Honduras, in 2006. She first went to a Red Cross clinic to be tested for the virus, which cost five hundred Lempira, and took two weeks to get results. She returned two weeks after her test to receive her results, and the nurses at the clinic gave her the results in front of everyone in the waiting room. She took a second HIV test at an Evangelical Church organization. The intake form there asked about sexual orientation, and she identified herself as bisexual. While she was waiting for the results of the test, the clinic displayed videos and pamphlets about God and abstinence outside of marriage. After receiving her results, she was counseled on God and family. She received no information about prevention or what to do if she was HIV-positive. Finally, she went to a LGBTQ organization for testing, which she described as the “best experience.” But such organizations are not funded on an ongoing basis and she does not know whether the organization still exists. After she received her results from all three clinics, she was given a card displaying her results, presumably to present to potential employers. She has not updated her research regarding current tests or procedures for HIV testing in Honduras since 2006.

Dr. Portillo remained in San Pedro Sula, Honduras, for two months after completing her HIV testing research before traveling to other parts of the country. She was not physically harmed or threatened during this time, though she did take daily precautions. However, five months later, she returned to San, Pedro Sula and went out to a gay bar with friends who were members of the LGBTQ community. They were stopped by police for a driving violation and harassed because of their gender identity. Dr. Portillo told the police officers that she was a US citizen and that this behavior was inappropriate, which led to the police taking one of her friends and telling the rest of the group to follow them. The police led them to a dark area in the city, and demanded money in exchange for releasing her friend, to which Dr. Portillo agreed. She believes that she was extorted because of her claim to U.S. citizenship and the assumption that as such she carried money on her.

She testified that many Hondurans directly link the HIV virus to the LGBTQ community. She believes that this is the result of a dearth of education both in the public school system and the public generally. Most HIV-positive people she has interviewed in Honduras are afraid to come out because they fear the reaction of their family, friends, and community, and because they fear losing their jobs. She testified that she does not believe it is possible for people to hide their HIV status in Honduras successfully because the confidentiality laws for medical providers are different from what they are in the United States, the cities are small, they may run into people they know, and many are required to seek help from LGBTQ organizations and may be seen there.

Dr. Portillo also discussed the homophobic nature of Honduran society. Since 2009, more than 200 LGBTQ people have been murdered, often in a particularly gruesome manner that she believes indicates they were targeted due to their gender identity. She testified that people defecated in front of the building of a LGBTQ organization where she worked, and they also spray-painted the building. Those who work for such organizations take precautions daily to avoid harassment. She also witnessed a large protest in Honduras regarding the government’s granting “nonprofit status” to a LGBTQ group, which Ms. Portillo described as the largest protest she has ever .seen. She also believes the police are complicit in the harassment, assault, and murder of members of the LGBTQ community, and that they rarely conduct fair investigations of such crimes. She discussed one case in which a transgender person was assaulted, on camera, and the footage showed police officers watching and laughing. Although the police officers involved were taken off active duty for a period of time, she does not believe they were prosecuted for any crimes.

According to Dr. Portillo, the Honduran constitution and criminal code have provisions intended to protect members of the LGBTQ community, but in practice these provisions are not used to protect members of the LGBTQ community or to prosecute those who discriminate or even physically assault or kill members of the community. She cited an example in which two transgender people ran for public office, and a well-known church leader made a derogatory televised speech encouraging the public to vote against them. But despite evidence of discrimination against them, the two individuals had them lawsuit dismissed for lack of evidence.

RIPPLE, Circuit Judge, dissenting.

I sincerely regret that I cannot join my esteemed colleagues in their disposition of this petition.

I cannot accept my colleagues’ view that the immigration judge “made a hash of the record.” Majority Op. at 260, The record in this case contains evidence supportive of the position of Mr. Velasquez-Banegas and evidence supportive of the position of the Government. The immigration judge carefully evaluated the entire record and determined that Mr. Velasquez-Banegas had not carried his burden of demonstrating, by a preponderance of the evidence, that he would be subject to persecution or torture if he returns to his homeland. Under well-established principles of law, our role in reviewing the immigration judge’s decision is limited. We review legal conclusions de novo; however, we review factual determinations under “the deferential substantial evidence standard.” Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Mozdzen v. Holder, 622 F.3d 680, 683 (7th Cir. 2010). We reverse “the agency’s findings only if, viewing the record as a whole, a reasonable factfinder would be compelled to reach a contrary conclusion.” Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015) (citing 8 U.S.C. § 1262(b)(4)(B)); see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Once we have determined that this deferential standard has been met, we have reached the limit of our authority. It is not within our ken to order a new trial because we believe that the evidence better supports a different conclusion.

Here, the substantial evidence test clearly has been met. Following a hearing, the immigration judge denied relief, rejecting both Mr. Velasquez-Banegas’s claim that he, faced persecution based on his imputed sexual orientation and his claim that he would be persecuted because of his HIV status.

A.

The immigration judge first concluded that Mr. Velasquez-Banegas had not established that he was an imputed membér of the LGBTQ community and therefore would suffer the mistreatment frequently accorded to members of that group. To support this conclusion, the immigration judge pointed to five factors that undercut Mr. Velasquez-Banegas’s claim: (1) Mr. Velasquez-Banegas was not gay and did not plan to associate with the LGBTQ community in Honduras; (2) Mr. Velasquez-Banegas “testified that none of the three people he knew with HIV in Honduras were homosexual, and that neither he nor anyone else believed them to be” ; (3) Mr. Velasquez-Banegas likely would seek HIV treatment at a hospital located four hours away in Tegucigalpa, reducing the possibility that he would see someone he knew while receiving treatment; (4) Mr. Velasquez-Banegas would be returning to his hometown where he-lived for thirty-eight years and many people who knew him before would still be living there; and (5) neither the provided articles nor the country conditions report stated that individuals who are HIV-positive are assumed to be gay, although those documents did discuss access to HIV healthcare, the stigma associated with being HIV-positive, and the violence experienced by members of the LGBTQ community.

Next, the immigration judge addressed Mr. Velasquez-Banegas’s claim that his HIV status was a protected social group. The immigration judge determined that the social group was cognizable and that Mr. Velasquez-Banegas was a member of this group. However, the immigration judge denied relief because Mr. Velasquez-Banegas had not demonstrated that it was more likely than not that his “life or freedom would be threatened” on account of his HIV status. The “most severe harm” that Mr. Velasquez-Banegas would face, according to the immigration judge, was his inability to receive medical care in Honduras. However, the immigration judge concluded, and my colleagues do not challenge, that the problem of inadequate medical care is not specific to those with HIV.

Regarding relief under the Convention Against Torture, the immigration judge found that Mr. Velasquez-Banegas had not established that it was more likely than not that he would be perceived as gay, although the judge recognized that the record reflects that LGBTQ people in Honduras experience persecution and “possibly torture.” The immigration judge added that lack of access to medical care and employment did not constitute torture. Based on these findings, the immigration judge denied Mr. Velasquez-Bane-gas’s petition.

Mr. Velasquez-Banegas first asks us to review the determination that his HIV status would not cause him to be perceived as gay. He claims that the Board disregarded relevant evidence and also impermissibly reasoned that others would not perceive Mr. Velasquez-Banegas as gay so long as he did not disclose his HIV status.

There can be no doubt that Mr. Velasquez-Banegas presented significant evidence that gay men in Honduras face abuse, violence, and even death at the hands of the general public, as well as at the hands of the police force. Indeed, the immigration judge concluded that “LGBTQ individuals in Honduras may face persecution, and possibly torture.” However, the immigration judge also found that Mr. Velasquez-Banegas had not shown that he would be perceived as gay based on his HIV-positive status.

Mr. Velasquez-Banegas submits that the immigration judge erred by discounting evidence merely because it was general in nature. Specifically, he claims that the immigration judge “faulted the testimony and affidavits in the record for only ‘generally’ stating that there is a ‘common belief in Honduras that those with HIV are gay or lesbian,’ and for citing ‘no data, reports, or examples.’ ” The relevant part of the immigration judge’s opinion states:

The record also contains some evidence that those with HIV are at times assumed to be a member of the LGBTQ community, and the respondent expressed this fear in his testimony. See Ex. 3. The respondent’s expert witness, Ms. Portillo, testified and stated in her affidavit that people with HIV are generally considered to be LGBTQ, which she attributes to a lack of information available to the public. She also testified that she does not believe that the respondent would be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that the respondent would run into someone he knew while seeking treatment. She also discussed a personal experience where she was extorted by police officers while on her way to a gay bar with friends who were members of the LGBTQ community. Three other affidavits in the record state generally that it is a common belief in Honduras that those with HIV are gay or lesbian, but cite no data, reports, or examples. See Ex. 3, Tabs B, E, and F.
However, this evidence is insufficient to establish that the respondent will likely have homosexuality imputed to him in Honduras, as it is general in nature, lacks objective data, and is not specific to the respondent.[]

First, it is important to note that the immigration judge considered the entire record, including “general” evidence. The judge found the general evidence to be unpersuasive and did not give very much weight to it. While Ms. Portillo, petitioner’s expert, had testified that people in Honduras are uninformed and therefore tend to link homosexuality to HIV, the judge noted that this statement was not based on any report or evidence. Instead, the expert could only support a related point; namely, that “there is considerable overlap between the two groups.” Similarly, the country report only supported the notion that the HIV/AIDS epidemic “is still concentrated in high-risk groups such as commercial sex workers and their clients, men who have sex with men, [and] prisoners. It did not expand on whether Hondurans likely would assume that all HIV-positive men shared a particular sexual orientation. Indeed, the report could be interpreted as cutting against this view. It listed “Vulnerable Groups” as including “Men who Have Sex with Men,” as well as “Sex workers,” “Prisoners,” “Women,” ‘Vulnerable Youth,” “Orphans,” “Military,” “Migrant Groups and Mobile Populations in Affected Regions,” and “Indigenous Groups and Descendants of African Origin.” According to the country report, all of these groups face an increased risk of exposure. It certainly was well within the discretion of the immigration judge to determine the weight that ought to be given to particular evidence. See 8 U.S.C. § 1158(b)(l)(B)(ii).

My colleagues also suggest that the immigration judge committed legal error in requiring evidence more specific to Mr. Velasquez-Banegas. They take the view that it is enough to be a member of a cognizable group that faces a high probability of persecution. Majority Op. at 261 (citing 8 C.F.R. § 1208.16(b)(2)). It is true that the general rule is that membership in a cognizable social group whose members are exposed to a high probability of persecution is sufficient to make out a case for withholding of removal. But that general rule assumes that it has been established that the applicant is in fact a member of the group. See 8 C.F.R. § 1208.16(b)(2)(ii). Here, no one maintains that Mr. Velasquez-Banegas is gay; in fact, he vigorously denies that he is and has stated that he has no plans to associate with the gay community, given his antipathy toward the group. His inclusion in the group therefore depends on establishing an imputed identification with that group, and, on that question, we already have acknowledged the necessity to examine the surrounding circumstances that might establish such an imputation, including the circumstances of the particular case. See Chen v. Holder, 604 F.3d 324, 332-33 (7th Cir. 2010).

Mr. Velasquez-Banegas seems to recognize the appropriateness of weighing evidence specific to him because he also contends that the immigration judge erred in failing to consider “one of the most important pieces of particularized evidence he offered.” Mr. Velasquez-Banegas explained that, in addition to being HIV-positive, he has “never gotten married,” and currently is middle-aged and single. He asserts that this increases the particularized risk that others will assume he is gay once they learn he has HIV. He claims that because the immigration judge did not cite specifically this evidence in her opinion, her entire determination is void.

As I have noted earlier, the immigration judge did consider particularized evidence about Mr. Velasquez-Banegas, including that:

the respondent will be returning to a country, and region, that he has lived in for thirty-eight out of his forty-seven years of life. His parents and siblings live in Comayagua, where he plans to return, and it is likely that many people who knew him before his departure from Honduras are still living there, .... Thus, the respondent will likely be living with people who have known him for the majority of his life and are unlikely to impute homosexuality to him, should they find out he is HIV-positive.[]

While the immigration judge’s opinion may have been clearer if it had stated that these findings directly overcame other “particularized” evidence about Mr. Velasquez-Banegas, including his age and marital status, that inference reasonably can be made from the record, and hardly warrants upsetting the immigration judge’s determination. Immigration judges need only consider those issues presented and say enough for us to conclude “that [they] ha[ve] heard and thought and not merely reacted.” Solis-Chavez v. Holder, 662 F.3d 462, 469 (7th Cir. 2011) (internal quotation marks omitted).

Finally, Mr. Velasquez-Banegas also contends that the immigration judge im-permissibly reasoned that others would not perceive him as gay so long as he did not disclose his HIV status. He argues that he has a right to be open about his condition. This is not an accurate characterization of the immigration judge’s opinion. The immigration judge concluded that, because Mr. Velasquez-Banegas likely would seek HIV treatment at a hospital located four hours away from his hometown, this “significantly decreases the odds that he would run into someone he knows while seeking treatment.” Even if Mr. Velasquez-Banegas chooses to be open about his HIV status, he has not established that his HIV status will cause him to be perceived as gay. The fact that he may choose to share his status does not alter this outcome.

B.

The immigration judge also determined that Mr. Velasquez-Banegas had established his membership in the particular social group of HIV-positive men living in Honduras. However, she then concluded that (1) he could not show a nexus between any harm he may suffer through his membership in this group; and (2) the alleged economic and social harm, including difficulty in procuring medical treatment and obtaining employment, did not rise to the level of persecution.

Although the statute governing withholding of removal does not define “persecution,” we have said that it “‘must rise above mere harassment.’ ” Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003). More to the point, we have described persecution as including “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture,” Toptchev v. I.N.S., 295 F.3d 714, 720 (7th Cir. 2002), behavior that threatens the same, and “non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe,” Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (citing Sayaxing v. I.N.S., 179 F.3d 515, 519 (7th Cir. 1999)). However, “generalized conditions of hardship which affect entire populations do not rise.to the level of persecution.” Id.; see also Musabelliu v. Gonzales, 442 F.3d 991, 994 (7th Cir. 2006) (“Asylum is not a form of unemployment compensation.”).

Mr. Velasquez-Banegas claims that the immigration judge ignored evidence related to the poor medical care and economic deprivation that HIV-positive individuals face. Mr. Velasquez-Banegas also claims the immigration judge gave too much weight to the fact that the Honduran government has enacted laws prohibiting the discriminatory practices which Mr. Velasquez-Banegas fears.

Regarding potential economic deprivation, the immigration judge acknowledged:

The record shows that the respondent will face some harm in Honduras on account of his HIV-positive status, including employment discrimination, welfare discrimination, social stigma, and difficulty obtaining medical treatment for HIV. See Ex. 8, Tabs G-O. The respondent’s expert witness, Ms. Portil-lo, testified that those with HIV in Honduras are frequently denied employment opportunities, particularly in the factory industry, as they are required to provide proof that they do not have the virus before being hired.[]

Despite this evidence, the immigration judge determined that Mr. Velasquez-Banegas had not met his burden of establishing economically based persecution. The judge cited specific evidence in making this finding, including that the Honduran government has prohibited companies from denying or terminating employment due to HIV status. Additionally, the immigration judge noted that Mr. Velasquez-Banegas’s expert, Ms. Portillo, only testified that the factory industry still conducted HIV tests and “was not aware of other industries in the country that refuse employment due to HIV status.” The immigration judge found these deficiencies significant because Mr. Velasquez-Banegas did not have a history of factory work. He had grown up on a ranch in Honduras, worked on a horse ranch in Kentucky, and also worked on a tobacco farm. The immigration judge therefore concluded that Mr. Velasquez-Banegas did not establish that he would be unable to secure the type of employment that he would be most likely to seek in Honduras.

Finally, the immigration judge determined that, although Mr. Velasquez-Banegas may experience difficulty obtaining HIV treatment and medication, this difficulty was due to general country conditions that make it difficult for all Hondurans to receive proper medical care. Additionally, the immigration judge noted “that the Honduran Government has passed legislation that establishes the right to medical care for people with HIV.” Honduras also has a socialized medical system, low-cost hospital care for those with HIV (in cities), and “at least thirty[-]seven” HIV treatment centers in the country. The immigration judge was certainly entitled to credit this evidence and come to the conclusion that any economic deprivation that Mr. Velasquez-Banegas might encounter would not rise to the level of persecution. I do not understand my colleagues to disagree with that determination.

Immigration cases always pose a special burden on United States judges. As Jacques Maritata so eloquently put it: “We are all wounded souls.” See Jacques Maritain, Reflexions sur I’Amerique 87-91 (1958). Every American, including every United States judge, has a family memory that includes ancestors who came from some place where life was not as good as it is here. The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety, and security that we enjoy. When the individual suffers from a medical condition that cannot be treated as well in the country to which he is returned, basic humanitarian values make the task even more difficult. No doubt, those who must make necessary policy choices and those who must enforce those choices feel, or should feel, that same angst. But immigration must be regulated, and, in this Country, national policy is set by Congress and enforced by the Executive. Our own task as judges is limited. Because the immigration judge’s determinations were supported by substantial evidence, I respectfully dissent.

      . A.R, at 114. The Government concedes that this was an inaccurate portrayal of Mr. Velasquez-Banegas’s testimony. Government’s Br. 14 n,4. Mr. Velasquez-Banegas testified that he did not think these three people were homosexual, but he was not aware of what others thought. A.R. at 170-74.

      . Id. at 114.

      . Id. at 115.

      . Id. at 116.

      . Id. at 116-17.

      . Mr. Velasquez-Banegas appealed this decision to the Board of Immigration Appeals (“the Board”). There, he argued that the immigration judge erred in (1) finding that he would not be perceived as gay; (2) improperly concluding that Mr. Velasquez-Banegas could hide his HIV status; and (3) discounting evidence as too generalized to support his claims. Finally, he alleged that he had met his burden of proof for protection under the Convention Against Torture.
      On July 1, 2015, the Board adopted and affirmed the immigration judge's decision. Because the Board summarily affirmed the immigration judge’s opinion, we base our review on the immigration judge's analysis. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).

      . The Board has recognized explicitly that homosexuality qualifies as a “particular social group.” Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir. 2007). The immigration judge noted that imputation may or may not apply to claims of membership in particular social groups. A.R. at 114. Assuming without deciding this issue, the immigration judge proceeded under the assumption that relief could be granted on this ground. Id. We have held that a petitioner can state an imputed claim where he shows that others will attribute a political opinion to him and will persecute him on that basis. See Chen v. Holder, 604 F.3d 324, 332 (7th Cir. 2010).

      . See, e.g., A.R. at 415-16, 486-87, 489, 521-24, 529-30, 537-46, 559.

      . Id. at 117.

      . Pet’r’s Br. 17 (quoting A.R. at 17).

      . A.R. at 114.

      . Id. at 398 (“Exhibit D”) (“To be precise, in 2005 UNAIDS estimated that 13% of men who have sex with men were living with AIDS. SHADOW REPORT at page 5.”). The other evidence fell short for the same reason. Exhibit E states "[p]ersecution extends to those individuals who are perceived as gay due to their HIV/AIDS status. The epidemic is concentrated within gay men. As a result, HIV/AIDS is perceived to be a disease 'caused' by LGBT individuals. Heterosexual males who have HIV/AIDS are often believed to be gay, and thus face the same risks of harm as gay individuals. In turn, LGBT individuals are often thought to have HIV/AIDS. As such, LGBT individuals and those with HIV/AIDS face persecution based on both homophobia and AIDS-phobia.” Id. at 415. The exhibit, however, cites no support for this conclusion. Similarly, Exhibit F states "[t]he common myth surrounding those infected with HIV is that the person is gay or they engaged in some homosexual activity,” but again does not support this conclusion. Id. at 431. Most unpersuasively, Exhibit B states "[i]n Honduras, there are a lot of people who link HIV to being gay. I know that the two are not necessarily connected because I know that Miguel was not gay, and I know that Rigoberto is not gay. But in my country, a lot of people assume that the two things are linked together,” immediately after discussing a heterosexual man dying from AIDS and rumors that he had infected another woman. Id. at 390.

      . Id. at 303.

      . Id. at 310-12.

      . Pet’r’s Br. 24-25 (emphasis in original).

      . A.R. at 174.

      . Id. at 114-15.

      . See Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011) (describing the inability to be open about membership in a protected group—their religion—as a "common form of persecution”); Muhur v. Ashcroft, 355 F.3d 958, 960 (7th Cir. 2004) (rejecting argument that applicant should avoid persecution by practicing religion covertly).

      .A.R. at 114.

      . Mr. Velasquez-Banegas repeatedly cites reports showing that police officers and private citizens have targeted LGBTQ individuals in Honduras. But, as noted above, Mr. Velasquez-Banegas failed to connect his HIV status with imputed sexual orientation. We therefore cannot consider the possibility of violence facing LBGTQ persons within the merits of his persecution claim based solely on his HIV status.

      . Id. at 115.

      . Id. at 116.

      . Id. at 377-79.

      . Id. at 382.

      , See, e.g., Medhin v. Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003) (petitioner's alleged loss of one job due to his ethnicity was at most, discrimination but not persecution); Zalega v. I.N.S., 916 F.2d 1257, 1260 (7th Cir. 1990) ("Although [the petitioner] complained that he could not get a government job commensurate with his education and training and that he could not obtain additional land to expand his fox farm, the economic disadvantage [the petitioner] suffered was minor.”).

      . A.R. at 116.

      . Id.


source: Caselaw Access Project

author: EASTERBROOK, Circuit Judge.

license: Public Domain

text:
    BUILDERS BANK, Plaintiff-Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant-Appellee.
    No. 16-2852
    United States Court of Appeals, Seventh Circuit.
    Argued January 4, 2017
    Decided January 19, 2017

      Richard D. Grossman, Attorney, Law Offices of Richard D. Grossman, Chicago, IL, for Plaintiff-Appellant.
    Joseph Brooks, Attorney, Andrew J. Do-ber, Federal Deposit Insurance Corporation, Legal Division, Appellate Litigation Unit, Arlington, VA, for Defendant-Appel-lee.
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Builders Bank is insured and regulated by the Federal Deposit Insurance Corporation, which conducts a “full-scope, on-site examination” every 12 to 18 months, 12 U.S.C. § 1820(d). After an examination in June 2015 the FDIC assigned the Bank a rating of 4 under the Uniform Financial Institutions Rating System. The parties call this a CAMELS rating, after the System’s six components: capital, asset quality, management, earnings, liquidity, and sensitivity. The highest rating is 1, the lowest 5. The Bank contends in this suit under the Administrative Procedure Act that its rating should have been 3 and that the lower rating is ai-bitrary and capricious. But the district court dismissed the suit for want of jurisdiction, ruling that the assignment of ratings is committed to agency discretion by law. 5 U.S.C. § 701(a)(2).

Some circuits have called rulings under § 701(a)(2) jurisdictional, see, e.g., Flint v. United States, 906 F.2d 471, 476 (9th Cir. 1990); Lunney v. United States, 319 F.3d 550, 551 (2d Cir. 2003); Tsegay v. Ashcroft, 386 F.3d 1347, 1349 (10th Cir. 2004), but ours is not among them. When a private party seeks judicial review of administrative action, 5 U.S.C. § 702 and 28 U.S.C. § 1346(a)(2) supply subject-matter jurisdiction. If there are no standards for judicial review (the usual meaning of “committed to agency discretion by law,” see Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)), then the court dismisses the suit on the merits because the plaintiff can’t show that the agency’s action was unlawful. That’s the conclusion of Vahora v. Holder, 626 F.3d 907, 916-17 (7th Cir. 2010). Accord, Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009); Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010). Older decisions such as Flint precede, or do not discuss, the Supreme Court’s modern effort to distinguish truly jurisdictional rules from case-processing doctrines. See, e.g., United States v. Kwai Fun Wong, — U.S. -, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015); Sebelius v. Auburn Regional Medical Center, — U.S.-, 133 S.Ct 817, 184 L.Ed.2d 627 (2013).

Decades ago this court sometimes used the word “jurisdiction” to refer to all doctrines that foreclose judicial review. Arnow v. NRC, 868 F.2d 223 (7th Cir. 1989), is one illustration. But loose usage does not establish a holding, see Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 act 1237, 176 L.Ed.2d 18 (2010), or survive the Justices’ recent insistence that “jurisdiction” means a tribunal’s adjudicatory competence, not whether a litigant has an ironclad defense. Section 701(a)(2), which prevents review of mattei’S committed to agency discretion by law, does not refer to or limit § 702, which creates subject-matter jurisdiction for claims under the APA. And when the Supreme Court has considered arguments under § 701(a)(2), it has done so on the merits; it has not ordered the cases remanded with instructions to dismiss for want of jurisdiction. See, e.g., Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993); Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). Section 701(a)(2) is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.

Maintaining the distinction between jurisdictional and other rules is important, because courts must enforce the limits on subject-matter jurisdiction even when the litigants prefer a decision on the merits. If § 701(a)(2) curtails jurisdiction, then courts must decide in every case under the APA whether some statute or doctrine provides the agency with discretion. The court would have to raise the issue on its own, comb the statute books for grants of discretion, and so on, even if the agency never contended that its action came within § 701(a)(2). Congress could require this, but the language of § 701(a)(2) does not foreclose the possibility of waiver or forfeiture. We do not see a reason to depart from Vaharais conclusion that the extent of agency discretion concerns the merits, not jurisdiction—unless a particular statute designates the subject as jurisdictional.

The distinction between jurisdiction and the merits matters here not only because the district court (wrongly) concluded that it lacks jurisdiction but also because the FDIC has bypassed two other procedural reasons why it might prevail. First, APA review normally is limited to final agency actions. See, e.g., FTC v. Standard Oil Co. of California, 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Assignment of a CAMELS rating does not appear to be a final decision. It might be the basis of an administrative order directing a bank to change certain practices or desist from others, see 12 U.S.C. § 1818(b), (c), (d), but the FDIC has not issued such an order to the Bank. The CAMELS rating affects how much a bank must pay for deposit insurance, but the Bank has not asked the court to order the FDIC to lower its rates. Second, the Bank failed to take advantage of the opportunity to have the FDIC’s Supervision Appeals Review Committee review the rating. See 77 Fed. Reg. 17055-2 (Mar. 23,2012).

As we understand the law, however, the absence of a final decision would be just another reason to dismiss the suit—provided that there is a live controversy between the Bank and the FDIC. The effect of CAMELS ratings on insurance premiums creates a concrete stake that makes the current dispute justiciable. Cf. Sackett v. EPA, 566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012) (dispute about classification of property as a wetland is justiciable even though additional steps may be required before a final remedy). The possibility of pre-enforcement review under decisions such as Sackett and Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), shows that a litigant-specific final decision is not a jurisdictional requirement. That the Bank may have sought judicial review prematurely therefore does not require a court to dismiss the suit when the agency has acquiesced in immediate review.

Apart from its jurisdictional argument, the FDIC maintains that the CAMELS rating is unreviewable because it has discretion to set appropriate levels of capital. It relies particularly on 12 U.S.C. § 3907(a)(2): “Each appropriate Federal banking agency shall have the authority to establish such minimum level of capital for a banking institution as the appropriate Federal banking agency, in its discretion, deems to be necessary or appropriate in light of the particular circumstances of the banking institution.” We shall assume that the agency’s discretion is so unconfined that the law commits the subject to administrative discretion under § 701(a)(2). So Frontier State Bank v. FDIC, 702 F.3d 588, 593-97 (10th Cir. 2012), holds, and the Bank does not ask us to disagree.

Instead the Bank reminds us that CAMELS stands for “capital, asset quality, management, earnings, liquidity, and sensitivity”. Each of the six factors is rated separately on a scale of 1 to 5, and the rating as a whole aggregates those six factors. The FDIC’s statement of policy, see 62 Fed. Reg. 752 (Jan. 6, 1997), explains the process. Suppose the FDIC’s team of examiners were to conclude that the Bank had adequate capital deserving a rating of 1 but that other components were unfavorable, leading to an overall rating of 4. The examiners may be right or wrong about those other issues, but a district court could ask whether the FDIC’s final rating was arbitrary, or supported by substantial evidence, without making any inroad on the agency’s discretion to evaluate a bank’s capital adequacy.

That’s what happened in Frontier State Bank, which in the course of reviewing a cease-and-desist order reviewed management, liquidity, and interest-rate-sensitivity issues while concluding that capital adequacy is unreviewable. 702 F.3d at 597-604. The sort of issues reviewed in Frontier State Bank affect CAMELS ratings. If those subjects could be reviewed there, notwithstanding the Tenth Circuit’s conclusion that capital adequacy is within the FDIC’s discretion, they can be reviewed in this litigation as well.

Indeed, it would be possible for a court to review the capital rating itself without transgressing § 3907(a)(2). Suppose the FDIC were to decide that Builders Bank needs $5 million in net capital in order to operate safely but has only $4 million. Section 3907(a)(2) puts the $5 million floor beyond judicial questioning. But the statute does not insulate the agency’s math. If the Bank were to contend that the examiners found that it fell short of $5 million because they had mistakenly treated a $1 million asset as a $1 million liability, turning $6 million of net capital into $4 million by error, a court would not impinge on the statutory discretion by insisting that assets go in one column of the balance sheet and liabilities in the other. Putting assets in the liability column is not part of a bank examiner’s remit.

Builders Bank insists that it takes the FDIC’s capital requirements as given and seeks to challenge only its application of the “asset quality, management, earnings, liquidity, and sensitivity” factors. The FDIC maintains that the Bank is just trying to disguise a challenge to a capital decision protected by § 3907(a)(2). The district judge did not decide which side is right about this, and the papers filed in this court do not enable us to do so reliably. The district court should take up this topic on remand. All we hold today is that the presence of capital as one of six components in a CAMELS rating does not necessarily mean that the rating as a whole is committed to agency discretion for the purpose of § 701(a)(2). We do not decide whether one or more components of a CAMELS rating other than capital may be committed to agency discretion; the parties have not briefed that question.

The judgment is vacated, and the case is remanded for proceedings consistent with this decision.


author: SMITH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Joseph Mario MCGREW, Defendant-Appellant
    No. 16-1095
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: January 17, 2017
    Rehearing and Rehearing En Banc Denied February 22, 2017

      Counsel who represented the appellant was Todd M. Lantz of Des Moines, IA.
    Counsel who represented the appellee was Mikaela Jo Shotwell, AUSA, of Des Moines, IA.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

       Judge Colloton and Judge Kelly did not participate in the consideration or decision of this matter,

   SMITH, Circuit Judge.

Joseph McGrew pleaded guilty to unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(3), which carries a statutory maximum penalty of 120 months’ imprisonment. 18 U.S.C. § 924(a)(2). At sentencing, McGrew made several objections to his presentence investigation report (PSR) and argued that the district court should apply a sentencing range of 33 to 41 months’ imprisonment for the charged offense under the United States Sentencing Guidelines. The district court, taking into account its calculated Guidelines range of 135 to 168 months, sentenced McGrew to the statutory maximum penalty of 120 months. After ruling on McGrew’s objections, the district court stated that it would find the statutory maximum sentence appropriate regardless of the final Guidelines range determination.

On appeal, McGrew argues that his sentence should be vacated and that this case should be remanded for resentencing because the district court improperly calculated his Guidelines range. We need not address the merits of McGrew’s Guidelines contentions because even if 'the district court erred in its Guidelines calculation, its sentence is affirmable. The district court founded its sentence upon its determination that the statutory maximum is the appropriate sentence and that no sentence within any argued Guidelines range would suffice in this circumstance. Any Guidelines calculation error was harmless. We therefore affirm the judgment of the district court.

I. Background

On December 4, 2013, Des Moines police officers stopped a vehicle driven by McGrew for a minor traffic infraction. During the stop, the officers noticed, a strong odor of marijuana coming from inside the vehicle. The officers ordered McGrew and his companion to exit. While searching the vehicle, the officers discovered a stolen 9mm handgun and ammunition in a secret compartment. At first McGrew denied knowledge of the handgun, but later, as part of his plea agreement, he acknowledged possessing it.

Within two months of the December 4th incident, McGrew had two additional encounters with the police involving vehicle stops and firearms. Before the grand jury returned its first indictment against McGrew, investigators lawfully searched McGrew’s Facebook account. This search uncovered numerous photographs of McGrew possessing a. firearm, smoking marijuana, and making gang-related gestures. The search also uncovered multiple conversations between McGrew and other Facebook users regarding the purchase and sale of various firearms. The court issued an arrest warrant on October 29, 2014, and McGrew received pretrial release on November 7, 2014. During this release period, McGrew served a ten-day jail sentence for harassing the mother of his children, tested positive for marijuana use, and stashed an AK-47 assault rifle in an attic. On April 28, 2015, after several superceding indictments involving these additional charges, the grand jury indicted McGrew for having committed four counts of unlawful possession of a firearm and one count of contempt of court for possession of a firearm in violation of pretrial release. The government entered into a plea agreement with McGrew that dropped all the charges except the single count relating to the December 4th stop. The United States Probation Office used the Facebook evidence and McGrew’s further encounters ■with law enforcement in making its PSR Guidelines determination. The report scored McGrew’s total offense level at 32 and his criminal history as category II. The PSR calculated McGrew’s' sentencing range to be 135 to 168 months’ imprisonment.

At his sentencing hearing, McGrew objected to the offense level calculation applied to him, specifically contesting: (1) the base offense level; (2) a four-point enhancement for possessing more than eight firearms; (3) an enhancement based on the offense’s connection to other offenses; and (4) the denial of a single-point reduction for McGrew’s acceptance of responsibility. The district court addressed all these objections in turn, finding the recommended total offense level appropriate. After-discussing the sentencing factors found in 18 U.S.C. §• 3553(a), the district court determined that the 120-month statutory maximum penalty was appropriate, stating: “Unquestionably this is the same sentence that I would have imposed regardless of how any of the guideline issues were resolved in this case, and it’s for all of the reasons that I identified, other than the guideline range factor,”

II. Discussion

McGrew asserts that the court misapplied several of the enhancements and selected the wrong base offense level. We review de novo the district court’s “construction and application of the Guidelines,” United States v. Beckman, 787 F.3d 466, 494 (8th Cir. 2016) (quotation omitted), but when the court derives its ultimate sentence apart from the Guidelines and offers an alternative explanation for its sentence, “such explanations may serve to prove other identified sentencing errors harmless.” United States v. Dean, 823 F.3d 422, 429 (8th Cir. 2016) (per curiam) (quoting United States v. Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012)).

Congress created the United States Sentencing Commission to promulgate sentencing guidelines in order to overcome the serious disparities in imprisonment lengths that could occur between different defendants prosecuted for similar crimes. See Mistretta v. United States, 488 U.S. 361, 363-70, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). “The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Guidelines are a “starting point” for a potential sentence, followed by the application of the factors found in 18 U.S.C. § 3553(a) to determine whether the sentencing range is appropriate. Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In reviewing the sentence applied by the district court, we must first review the sentence for any

significant procedural error, such as fading to calculate (or impropei'ly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.

Id. at 51, 128 S.Ct. 586. Then, if we find no significant procedural error, the “substantive appellate review in sentencing cases is narrow and deferential.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).

McGrew contends that the district court committed a significant procedural error by improperly determining his Guidelines sentencing range. We review a district court’s application of the Guidelines de novo. Beckman, 787 F.3d at 494. It is well established in the Eighth Circuit, however, that a Guidelines calculation error is harmless if it “did not substantially influence the outcome of the sentencing proceeding.” United States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008); see also United States v. Staples, 410 F.3d 484, 492 (8th Cir. 2005) (“An error is harmless if it is clear from the record that the district court would have given the defendant the same sentence regardless of which guidelines range applied.”). As with all Guidelines deviations, we look to whether the district court “adequately explained] the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S.Ct. 586.

At the outset, we recognize that an improperly determined Guidelines range can create a significant procedural defect in a defendant’s sentence. See Peugh v. United States, — U.S.-, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013) (“[W]hen a Guidelines range moves up or down, offenders’ sentences move with it.”). In the majority of cases, the Guidelines act as both the starting point and the lodestar for determining the appropriate sentence. Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016). The Supreme Court has recognized, however, that “[t]he record in a case may show ... that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range.” Id. In cases in which the sentencing court—taking into account the particular circumstances of the case—applies the maximum statutory penalty for an offense irrespective of the Guidelines and explains its reasoning for doing so, any possible sentencing range miscalculation is harmless. See United States v. Waller, 689 F.3d 947, 958 (8th Cir. 2012) (per curiam).

In Waller, the defendant pleaded guilty to knowingly transmitting a threat to injure another person, an offense with a maximum penalty of 60 months’ imprisonment. Id. at 950, 957. The defendant’s PSR calculated a sentencing range of 6 to 12 months. Id. at 950. At sentencing, the court granted a two-level enhancement under U.S.S.G. § 3Al.l(b)(l) because the offense included a vulnerable victim, results ing in a new range of 10 to 16 months’ imprisonment. Id. at 956. During the hearing, the district court also heard extensive testimony regarding the threats that the defendant had made to his missing wife. Id. at 951-55. Finding the threat at issue “inextricably intertwined” with a history of threatening behavior, the court ordered the statutory maximum of 60 months’ imprisonment. Id. at 956-57. The court further stated “that it would have imposed the same 60-month sentence regardless of whether the two-level enhancement applied.” Id. at 957. On review, we held that even assuming procedural had occurred in applying the enhancement, “we need not determine whether the district court procedurally erred ... because any such error would be harmless.” Id. at 958.

Wallers reasoning applies here. Although McGrew pleaded guilty to one count of possessing a firearm, the district court found that the evidence surrounding this single charge compelled a more serious penalty. McGrew’s Facebook page had multiple photos of him smoking marijuana and brandishing firearms. His- message history included numerous references to gang membership, selling weapons, and other illegal activity. The government introduced an AK-47 assault rifle connected to McGrew during pretrial release. As the district court stated, “This is not the offense in its most basic form. It’s the offense in a very aggravated form, ... because of the multiple weapons, the gang-related nature of it and his status as an arms dealerThe district court stated that it would have given McGrew the maximum penalty “regardless of how any of the guideline issues were resolved in this case.”

McGrew relies on United States v. Bah, 439 F.3d 423 (8th Cir. 2006), for the proposition that the district court cannot immunize a Guidelines range miscalculation with a blanket statement that it would have chosen a certain sentence regardless of the calculated range. McGrew’s proposition is true but inapplicable. In Bah, the district court improperly applied a sentencing enhancement pursuant to U.S.S.G. § 2L2.1 to the defendant’s Guidelines range, resulting in a total offense level of 12. Id. at 426. Because the defendant’s PSR also provided an offense level of 12 using a different Guideline provision, the government argued that the district court’s improper Guidelines calculation was harmless. Id. at 430. We disagreed, noting that to rely on an alternative method of calculating the Guidelines range, the sentencing court would still have to provide reasoning for this alternative application at the time of sentencing. Id. at 431-32. Even though the district court expressly stated that it would have applied the same sentence regardless of the range applied, we stated: “We have yet to apply such a harmless error rule where the sentencing court pronounced a blanket identical alternative sentence to cover any potential guidelines calculation error asserted on appeal without also basing that sentence on an alternative guidelines calculation.” Id. at 431. Bah comports with the guiding principle that the sentencing court needs to provide enough reasoning for “meaningful appellate review” of the sentence applied. Gall, 552 U.S. at 50, 128 S.Ct. 586.

A sentencing court that grounds its sentence upon a statutory maximum penalty based on the unique facts of the defendant’s case provides this court with an objective basis for the chosen sentence apart from the applicable Guidelines range. Accord United States v. Goodyke, 639 F.3d 869, 876 (8th Cir. 2011) (“[I]t appears from the record that regardless of the Guidelines range and the recommendations of the parties, seventy-five months was the sentence that the district court was going to impose.”). This does not eliminate the requirement of the sentencing court to make proper Guidelines determinations and to follow proper procedures. United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005) (“[T]he court should be careful to identify potential applicable ranges, the reason why a specific range is not being selected, and other § 3553(a) factors that predominate.”). Nevertheless, when a sentencing court adequately justifies setting a defendant’s sentence based on the maximum statutory penalty, quibbles about the application of Guidelines enhancements or departures become moot.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable John A. Jarvey, Chief Judge, United States District Court for Ae Southern District of Iowa.


author: SMITH, Circuit Judge. MURPHY, Circuit Judge,

text:
    Fineola INGRAM; Justin Simmons; Brian Boykin, Plaintiffs-Appellants v. COLE COUNTY; Sheriff Greg White; John Wheeler, Defendants-Appellees
    No. 16-1046
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: January 17, 2017

      Counsel who presented argument on behalf of the appellants was Roger G. Brown, of Jefferson City, MO. The following attorney also appeared on the appellant brief; Jason H. Ludwig, of Jefferson City, MO.
    Counsel who presented argument on behalf of the appellees was Michael G. Berry, of Jefferson City, MO. The following attorney also appeared on the appellee brief; Marshall V. Wilson, of Jefferson City, MO.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   SMITH, Circuit Judge.

The laundry policy at the Cole County Detention Center leaves pretrial detainees naked, with only a bed sheet and a blanket for cover, every four nights for women and every two-to-three nights for men. During this time, guards and cellmates may see the detainees naked. Because this plausibly amounts to unconstitutional punishment, we reverse the district court’s dismissal of the plaintiffs’ complaint.

I. Background

The plaintiffs were detainees at the Cole County Detention Center (“Jail”). Fineola Ingram was detained for 85 days beginning in November 2013. Justin Simmons was detained from April-September 2013 and again from April-July 2015. Brian Boykin was detained from March 2015 through at least July 2015, when this suit was filed.

Jail policy prohibits detainees from wearing their own clothes. Instead, the jail gives each detainee one set of clothes: underwear, undershirt, pants, outershirt, socks, and shoes. Female detainees also get a bra. Female detainees’ clothes are washed every four days; male detainees’ clothes are washed every two-to-three days. While this set of clothes is being washed, detainees are not provided substitute garments. They are, however, given a bed sheet and a blanket. Jail staff usually does the laundry at night and returns the clothes the following morning. This takes about seven hours. The cells have windows that, per jail policy, may not be covered. So during this time, jail guards and cellmates may see the detainees unclothed if not concealed by their bedding. Sometimes male guards return clothes to female detainees and female guards return clothes to male detainees.

The plaintiffs sued in July 2015 as two putative classes: current detainees and former ones. They alleged that the laundry policy violates the Eighth and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Missouri Constitution. They sought a temporary restraining order and a permanent injunction against Cole County, Sheriff Greg White, and Chief Deputy John Wheeler, and they sought damages against White and Wheeler. The district court denied the request for a restraining order and set the preliminary injunction for a hearing. The parties held depositions, and the defendants produced limited documents. The defendants moved to dismiss in late July 2015.

The court ultimately cancelled the injunction hearing and granted the dismissal motion. It held that the plaintiffs alleged “no more than minimal deprivation.” Because the laundry was being done at night, the court observed, “[d]etainees are sleeping in the nude, not going about their activities during the waking part of the day in the nude. Furthermore, detainees are issued a sheet and a blanket ... and may cover themselves with sheet and blanket if they wish.” The court also noted that the plaintiffs have no general right not to be seen by guards of the opposite sex. It therefore concluded that “[t]he laundry policy at issue here creates no combination of factors that establish a constitutional violation.” The court also identified cleanliness and hygiene as a legitimate purpose for the laundry policy. And even if the policy had no valid penological purpose, the court noted, that alone would not make it unconstitutional—the focus is on the totality of the circumstances. The court then granted qualified immunity to the individual defendants because the plaintiffs had not alleged an underlying constitutional violation.

The plaintiffs moved to set aside the judgment and for leave to file an amended complaint. The court denied that motion because the plaintiffs’ proposed amended complaint did not add any allegations based on new evidence—that is, evidence unavailable before the court ruled on the motion to dismiss. The plaintiffs now appeal the dismissal and the denial of their motion to set aside the judgment. Because we reverse the district court’s dismissal, we do not review its refusal to set aside the judgment in favor of amendment.

II. Discussion

We review the dismissal de novo. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009). To survive a motion to dismiss, the plaintiffs must allege sufficient facts to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). They must show more than a sheer possibility of ultimate success, but they need not establish a probability of it. Id. A complaint therefore may proceed even if a savvy judge thinks ultimate success is unlikely. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In evaluating the constitutionality of pretrial-detention conditions, “the proper inquiry is whether those conditions amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Due Process Clause prohibits any punishment before someone is adjudicated guilty. Id. We must first ask whether a given imposition is of “a de minimis level ... with which the Constitution is not concerned.” Id. at 539 n.21, 99 S.Ct. 1861 (quoting Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). Then, if the imposition is of constitutional concern, the second question is whether it “amounts to ‘punishment’ in the constitutional sense.” Id. at 537, 99 S.Ct. 1861.

This second question—whether there is punishment in the constitutional sense—arises in pretrial detainee cases because detention always involves some loss of freedom and of life’s ordinary comforts. Id. Yet “the Government concededly may detain [someone] to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment.” Id. at 536-37, 99 S.Ct. 1861. The relationship of the condition or restriction to nonpunitive government purposes is key. If a pretrial-detention condition or restriction “is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ ” Id. at 539, 99 S.Ct. 1861. But if it “is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id.

The defendants contend, relying on Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006), that Bell does not apply and that all conditions-of-conflnement claims are tested for deliberate indifference. The deliberate-indifference standard examines whether the state deprived the detainee of “the minimal civilized measure of life’s necessities” and knowingly disregarded an excessive safety risk created by that deprivation. Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Butler indeed purported to “hold that deliberate indifference is the appropriate standard of culpability for all claims that prison officials failed to provide pretrial detainees with adequate food, clothing, shelter, medical care, and reasonable safety.” 465 F.3d at 345. We decline, however, to depart from Bell.

First, Butler was a medical-care case, so its statement about food, clothing, and shelter claims is dictum. See John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers, AFL-CIO, 913 F.2d 544, 550 (8th Cir. 1990) (“We need not follow dicta.... ”). Second, our cases often apply Bell’s punishment standard to prison-conditions claims. See, e.g., Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996) (overflowing toilet). And third, the Supreme Court recently reaffirmed, albeit in “considered dict[um],” McDonough v. Anoka County, 799 F.3d 931, 942 (8th Cir. 2015), that Bell remains the standard for evaluating prison conditions for pretrial detainees. Kingsley v. Hendrickson, — U.S. -, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). In Kingsley, the Court addressed whether an excessive-force plaintiff must prove only that the force used was objectively unreasonable, or must also prove that the officer knew that it was. Id. In holding that only objective unreasonableness is required, the Court relied on Bell, which it construed as applying an objective standard “to evaluate a variety of prison conditions, including a prison’s practice of double-bunking.” Id. Bell, then, remains the standard in conditions cases like this one.

Prisons must provide detainees with basic necessities, including clothing. Green v. Baron, 879 F.2d 305, 309 (8th Cir. 1989). But “[a] minimal deprivation does not violate the Constitution.” Id. Temporary discomfort alone is not enough. See id. at 310. Is going without clothing every few nights, while having a blanket and a bed sheet for cover, more than a de minim-is imposition? We have no prior cases addressing the precise question. In our cases, the duration of the alleged deprivation varies, and there is no magic moment when the clock or calendar converts a condition of confinement into a constitutionally significant event. Beaulieu v. Ludeman held that 24 hours in unsanitary conditions is “too short a time to constitute a due process violation.” 690 F.3d 1017, 1045 (8th Cir. 2012). Giving a detainee one roll of toilet paper per week, even though he must wait 30 minutes to wash himself in the shower after the roll runs out, does not violate the Constitution. Stickley v. Byrd, 703 F.3d 421, 424 (8th Cir. 2013). And four days in a cell with the stench of one’s own feces “do[es] not rise to a level of constitutional significance,” Smith, 87 F.3d at 268.

Clothing-deprivation cases usually turn on the reason for the deprivation. Twelve hours naked in solitary with no penological purpose is enough to “justify a factual finding that [the inmate] has indeed been deprived of his constitutional rights.” Porth v. Farrier, 934 F.2d 154, 156 (8th Cir. 1991). Keeping a non-suicidal and non-dangerous prisoner in his underwear for five days “serve[s] no justifiable penological objective and [is therefore] a punitive measure.” Rodgers v. Thomas, 879 F.2d 380, 384 (8th Cir. 1989). Fourteen days in solitary with only undershorts and a mattress, if unrelated to security, may also be punishment. Maxwell v. Mason, 668 F.2d 361, 363 (8th Cir. 1981).

The reason for the deprivation may make its duration acceptable. Nine days in lockdown in boxer shorts is not punishment when the lack of clothing was an oversight and the prisoner apparently never requested more. Rust v. Grammer, 858 F.2d 411, 412, 414 (8th Cir. 1988). And even several weeks in unclothed psychological treatment is not excessive if reasonably related to a legitimate governmental objective. Green, 879 F.2d at 308, 310.

In this ease, the detainees’ outer garments and underwear are taken for laundering overnight at least twice—and sometimes three times—a week. During this time, they may be exposed to cellmates and guards when not covered by their bedding. They cannot block their cell windows. The defendants argue that these facts present “only a de minimis discomfort which is a necessary consequence of detention.” We disagree.

We conclude that this practice constitutes more than a de minimis deprivation. Of course “[l]oss of freedom of choice and privacy are inherent incidents of [prison] confinement.” Bell, 441 U.S. at 537, 99 S.Ct. 1861. “And the fact that such detention interferes with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punishment.’ ” Id, Even four days in: a cell with one’s own feces, for example, may be de minimis despite the constitutional interest in sanitary conditions. Smith, 87 F.3d at 268. But the distinguishing fact here is frequency. Each deprivation is not exceedingly long, but the deprivations are repetitive and are expected to last the full duration of confinement. See Green, 879 F.2d at 309 (duration of deprivation matters). And while there is “no general right not to be seen naked by guards of the opposite sex,” Hill v. McKinley, 311 F.3d 899, 909 (8th Cir. 2002), and a detainee’s expectation of privacy is “of a diminished scope,” Bell, 441 U.S. at 557, 99 S.Ct. 1861, detainees are still entitled to clothing.

Because the laundry policy’s imposition is more than de minimis, we ask whether it is reasonably related to a legitimate governmental purpose. Id. The defendants have not asserted one. The district court, reviewing the jail regulations cited by the plaintiffs, concluded that the policy promoted cleanliness and hygiene. A policy of cleanliness, though, does not explain why the jail is unable to stock and wash enough clothes to avoid extended periods without clothing on a more or less permanent basis. Because the record reveals no legitimate objective behind this policy, it plausibly amounts to unconstitutional punishment.

The district court also noted that even if “the policy could serve no valid penological purpose, such conclusion alone would not make it unconstitutional.” The district court is correct under the Eighth Amendment cases it cited. But this is not an Eighth Amendment case—it is, as framed by the district court, a pretrial detainee case under Bell. And under Bell, “if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted on detainees qua detainees,” 441 U.S. at 539, 99 S.Ct. 1861.

Because the plaintiffs have alleged more than a de minimis imposition that is not reasonably related to a legitimate governmental purpose, the district court erred in dismissing their complaint. And because the district court based its qualified-immunity ruling on the perceived lack of a constitutional violation, this too was error.

III. Conclusion

Accordingly, we reverse the dismissal and remand for further proceedings.

MURPHY, Circuit Judge,

concurring in part and concurring in the judgment.

I concur in the court’s well reasoned analysis of the pretrial detainees’ claims but write separately to address the claims of the convicted prisoners. While the district court addressed all plaintiffs as pretrial detainees, the complaint and briefs make clear that plaintiffs also include convicted prisoners.

Claims by convicted prisoners are analyzed under the Eighth Amendment. See Hott v. Hennepin Cty., 260 F.3d 901, 905 (8th Cir. 2001). To state an Eighth Amendment claim, “[a] prisoner must allege both that a deprivation of rights is ‘objectively, sufficiently serious,’ and that a state official is deliberately indifferent to inmate health or safety.” Zink v. Lombardi, 783 F.3d 1089, 1107 (8th Cir. 2015) (en banc) (per curiam) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). A deprivation is serious enough to satisfy the objective element only if it denies the prisoner “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).

The “length of time the prisoner was subjected to the harsh confinement” is a “crucial factor” in determining whether a practice deprives a prisoner of life’s necessities. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989); see also Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Deprivations of clothing may violate the Eighth Amendment, but not always. Rodgers v. Thomas, 879 F.2d 380, 384 (8th Cir. 1989).

Here, plaintiffs allege that jail officials have deprived them of clean clothing overnight between one and three times a week. They are sometimes left with only a bed sheet and blanket which are only intermittently washed. In the meantime they are not allowed to cover their cell windows and can be seen naked without their permission.

This claim is sufficient to satisfy the Eighth Amendment’s objective component. The responsible jail officials would have known this practice caused humiliation to inmates. The prisoners have alleged sufficient facts to state a claim for relief against the responsible officials.

For these reasons I concur in the court’s reversal of the dismissal of this action.

      . The plaintiffs’ complaint uses "detainees” to mean “pretrial detainees and inmates.” The district court, though, addressed the plaintiffs as "pretrial detainees” and therefore analyzed their claims under the Fourteenth Amendment rather than the Eighth Amendment. We follow the district court’s path.

      . Because Forth and Rodgers were Eighth Amendment cases, the punishment issue was not dispositive, as it is here. See Rodgers, 879 F,2d at 384 (condition not unconstitutional just because it serves no valid penological purpose).