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.
*725One 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, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) — 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.
More important is the fact that Zadvydas and Clark v. Martinez, — U.S.-, 125 S.Ct. 716, 160 L.Ed.2d 734 (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 Zadvydas. See 533 U.S. at 699-701, 121 S.Ct. 2491. 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.