                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2490
                                  ___________

Ahmed Hassan Ali, also               *
known as Ahmed Warsame,              *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Minnesota.
Mark Cangemi, Interim Director,      *
Bureau of Immigration and Customs    *
Enforcement,                         *
                                     *
            Appellant.               *
                                ___________

                            Submitted: April 11, 2005
                               Filed: August 16, 2005
                                ___________

Before LOKEN, Chief Judge, LAY, WOLLMAN, MORRIS SHEPPARD ARNOLD,
      MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER,
      and BENTON, Circuit Judges, en banc.
                              ___________

RILEY, Circuit Judge.

       On May 15, 2003, Ahmed Hassan Ali (Ali), a native of Somalia, applied in the
district court for a writ of habeas corpus under 28 U.S.C. § 2241, alleging his
extended detention awaiting deportation was unlawful and requesting the government
release him from custody. On June 1, 2004, the district court granted the writ, and
thereafter the government pursued this appeal. A panel of this court affirmed in a
September 27, 2004 opinion. Ali v. Cangemi, 384 F.3d 989 (8th Cir. 2004). On
November 23, 2004, the en banc court vacated the panel opinion and granted
rehearing en banc. We now reverse and vacate the district court judgment, and direct
the district court to dismiss, without prejudice, Ali’s application for a writ of habeas
corpus as moot.

       On December 29, 2004, the Bureau of Immigration and Customs Enforcement
(BICE) released Ali, allegedly by mistake, pursuant to an order of supervision issued
under one of Ali’s aliases. Since releasing Ali from custody, BICE has been
unsuccessful to date in its attempts to locate Ali. Because Ali has failed to comply
with the order of supervision requiring him to report to BICE and to notify BICE of
any change of residence, BICE considers Ali a fugitive and intends to apprehend Ali
and return him to custody.

       On February 2, 2005, the original panel in this case ordered supplemental
briefing to address the current custodial status of Ali, whether Ali’s status rendered
this appeal moot, and the effect on this appeal of two recent Supreme Court decisions,
Jama v. Immigration & Customs Enforcement, 125 S. Ct. 694 (2005), and Clark v.
Martinez, 125 S. Ct. 716 (2005). In response to the request for supplemental briefing,
both Ali and the government contend Ali’s release does not moot this appeal. The
government argues that if Ali is located, his future detention is likely and, therefore,
a case or controversy continues to exist. Ali’s counsel argues, because the
government intends to reincarcerate Ali if given the opportunity, a case or
controversy remains present.

       Two varieties of mootness exist: Article III mootness and prudential mootness.
Article III mootness arises from the Constitution’s case and controversy requirement:
“Article III of the United States Constitution limits the jurisdiction of the federal
courts to actual, ongoing cases and controversies.” Haden v. Pelofsky, 212 F.3d 466,
469 (8th Cir. 2000); see U.S. Const. art. III, § 2, cl. 1. “When, during the course of

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litigation, the issues presented in a case ‘lose their life because of the passage of time
or a change in circumstances . . . and a federal court can no longer grant effective
relief,’ the case is considered moot.” Id. (quoting Beck v. Mo. State High Sch.
Activities Ass’n, 18 F.3d 604, 605 (8th Cir. 1994) (alteration in original)); see also
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (stating an action becomes moot where it “no
longer present[s] a case or controversy under Article III”). If an issue is moot in the
Article III sense, we have no discretion and must dismiss the action for lack of
jurisdiction. See Powell v. McCormack, 395 U.S. 486, 496 n.7 (1969).

        On the other hand, prudential mootness, “[t]he cousin of the mootness doctrine,
in its strict Article III sense, is a melange of doctrines relating to the court’s discretion
in matters of remedy and judicial administration.” Chamber of Commerce v. United
States Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980). Even if a court has
jurisdiction under Article III to decide a case, prudential concerns may militate
against the use of judicial power, i.e., the court “should treat [the case] as moot for
prudential reasons.” United States v. (Under Seal), 757 F.2d 600, 603 (4th Cir.
1985); see also Alton & S. Ry. Co. v. Int’l Ass’n of Machinists & Aerospace
Workers, 463 F.2d 872, 877 (D.C. Cir. 1972) (recognizing “the constitutional power
of a court to decide a contention presented on appeal does not define a constitutional
duty. There is latitude in appellate courts to develop doctrines of judicial
administration that permit a court to decline decision though not precluded by a
jurisdictional bar from consideration of the matter.”); 13A Charles Alan Wright,
Arthur R. Miller, Edward M. Cooper, Federal Practice and Procedure § 3533.1, at
222-26 (2d ed. 1984). A panel of our court adopted the prudential mootness doctrine
reasoning in Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 765 (8th Cir.
2004) (citing S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727-30 (10th Cir.
1997)).




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        With Ali’s December 29, 2004 release, Ali arguably received the relief he
requested. See, e.g., Riley v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002) (holding
petitioner’s release from detention under an order of supervision “moots his challenge
to the legality of his extended detention”); Camara v. Comfort, 235 F. Supp. 2d 1174,
1176 (D. Colo. 2002) (holding petitioner’s release from custody rendered his habeas
petition moot). Because Ali was in custody when he filed his application for a writ
of habeas corpus, his subsequent release from custody does not automatically moot
this appeal in the Article III sense. Spencer, 523 U.S. at 7. However, we need not
decide whether Ali’s case is moot in the Article III sense, because we conclude Ali’s
case is prudentially moot in light of the myriad of uncertainties in this case, including
whether and where Ali might be apprehended, the changing country conditions in
Somalia, and our inability to provide an effective remedy at this time.


       Accordingly, we reverse and vacate the judgment of the district court, remand
the case to the district court, and instruct the district court to dismiss, without
prejudice, Ali’s application for a writ of habeas corpus as moot. See Simpson v.
Camper, 974 F.2d 1030, 1031 (8th Cir. 1992) (citing United States v. Munsingwear,
Inc., 340 U.S. 36, 39-40 (1950)) (providing the dismissal of a habeas petition “is the
customary form of disposition in cases that become moot while pending on appeal”).


LAY, Circuit Judge, with whom BYE, Circuit Judge, joins, concurring and
dissenting.


      I do not agree that the case should be dismissed on the ground of mootness for
prudential reasons.




                                          -4-
      One difficulty with the majority opinion is that it fails to discuss the elements
of prudential mootness in a meaningful way. Judge Phillips of the Fourth Circuit
explained that sometimes a case can be treated


      as moot for prudential reasons. See, generally, 13A Wright, Miller &
      Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3533.1.
      These have to do both with our inability to give an effective remedy
      under the circumstances now developed and with the imprudence of
      deciding on the merits a difficult and sensitive constitutional issue
      whose essence has been at least substantially altered by supervening
      events; which is not likely to recur in its original form in respect of these
      appellees; and which in its altered form is now subject to determination
      in a more appropriate forum and litigation setting.


United States v. (Under Seal), 757 F.2d 600, 603 (4th Cir. 1985). The majority
announces in conclusory language that we are unable to provide effective remedy
because of the myriad uncertainties in this case. Majority opinion at 4. I do not see
that as the case. Were we to reach the constitutional question looming in this case –
i.e., whether any further detention of Ali would offend Zadvydas v. Davis, 533 U.S.
678 (2000) – we would face an issue that is purely a question of law. Resolution of
that legal question is not encumbered by the fact of Ali’s mistaken release (as the
government has vowed to reapprehend him), or the country conditions in Somalia.
In short, the majority has failed to demonstrate that the circumstances of this case are
a good fit for the prudential mootness doctrine.


       At the very least, this case requires a remand to the district court to determine
the status of the case so that it can be dismissed or brought back to this court in its
present form after the district court has had an opportunity to review our remand. If
this direction was included in the majority opinion it would be much more
informative to the district court than what is presently written by the majority opinion.


                                          -5-
       More important is the fact that Zadvydas and Clark v. Martinez, 125 S. Ct. 716
(2005), still remain. Both of these cases demonstrate that Ali should not be detained
any further since further detention would be unconstitutional. He has already served
over thirteen months in detention solely for the purpose of awaiting removal to
Somalia. Even the government concedes that Ali’s removal is not “reasonably
foreseeable,” Supp. Brief for Respondent at 10, as required by Zadyvdas. See 533
U.S. at 699-701. The district court, upon remand, could reconsider whether to affirm
Ali’s petition for habeas corpus based upon additional evidence, or to dismiss the
case.


      This case should terminate somewhere.


      As the majority opinion merely dismisses without prejudice, it leaves the matter
open ended, and there is no hope for a final termination.
                       _____________________________




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