Ahmed Hassan ALI, also known as Ahmed Warsame, Appellee, v. Mark CANGEMI, Interim Director, Bureau of Immigration and Customs Enforcement, Appellant, 419 F.3d 722

RILEY, Circuit Judge. On May 15, 2003, Ahmed Hassan Ah (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. Ccmgemi, 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, Ah’s application for a writ of habeas corpus as moot. On December 29, 2004, the Bureau of Immigration and Customs Enforcement (BICE) released Ah, allegedly by mistake, pursuant to an order of supervision issued under one of Ah’s aliases. Since releasing Ah from custody, BICE has been unsuccessful to date in its attempts to locate Ah.

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 Ah, whether Ah’s status rendered this appeal moot, and the effect on this appeal of two recent Supreme Court decisions, Jama v. Immigration & Customs Enforcement, — U.S. -, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005), and Clark v.

Martinez, — U.S.-, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). In response to the request for supplemental briefing, both Ali and the government contend Ah’s release does not moot this appeal. The government argues that if Ah is located, his future detention is likely and, therefore, a case or controversy continues to exist. Ah’s counsel argues, because the government intends to rein-carcerate Ah 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 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, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (stating an action becomes moot where it “no longer presents] 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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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)).

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, 118 S.Ct. 978. 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, 71 S.Ct. 104, 95 L.Ed. 36 (1950)) (providing the dismissal of a habeas petition “is the customary form of disposition in cases that become moot while pending on appeal”).