(dissenting).
I find myself unable to agree to the opinion of my colleagues. The only issue, as I understand the law relating to these exclusion cases, is whether the boards of special inquiry and review gave the applicant a fair hearing, and did not abuse the discretionary powers vested in them. The courts do not weigh the evidence pro and eon. If there is evidence on which the refusal of admission is based, its weight is for the administrative officials. That this court would have arrived at a different conclusion is of no consequence. Neither the district courts in habeas corpus proceedings nor the appellate courts see the witnesses. How they may have impressed the boards of special inquiry and review we do not know.
It is not the function of an appellate court in a habeas corpus proceeding to weigh the evidence, or to go into the sufficiency of the probative facts, if there are such. Under the provisions of the statute, the decision of boards of special inquiry and review is final, unless reversed on appeal to the Secretary of Labor. It is only to be reviewed on habeas corpus when the administrative officers have manifestly abused the power and discretion conferred upon them. White v. Young Yen (C. C. A.) 278 F. 619; Low Wah Suey v. Backus, 225 U. S. 460, 468, 32 S. Ct. 734, 56 L. Ed. 1165; Zakonaite v. Wolf, 226 U. S. 272, 274, 33 S. Ct. 31, 57 L. Ed. 218; Lewis v. Frick, 233 U. S. 291, 300, 34 S. Ct. 488, 58 L. Ed. 967; Kwock Jan Fat v. White, 253 U. S. 454, 457, 40 S. Ct. 566, 64 L. Ed. 1010; Tulsidas v. Insular *147Collector, 262 U. S. 258, 263, 43 S. Ct. 586, 588, 67 L. Ed. 969; Tisi v. Tod, 264 U. S. 131, 133, 44 S. Ct. 260, 68 L. Ed. 590; Louie Lung Gooey v. Nagle (C. C. A.) 49 F.(2d) 1016; Fong Kong v. Nagle (C. C. A.) 57 F.(2d) 138.
As the court said in Tulsidas v. Insular Collector, supra: It leaves “the administration of 'the law, where the law intends it should be left, to the attention of officers made alert to attempts at evasion of it, and instructed by experience of the fabrications which will be made to accomplish evasion.” Also see Chin Ching v. Nagle (C. C. A.) 51 F.(2d) 64.
At the hearing before the immigration authorities, the alleged father and the alleged brother, Yee Shong Loong, testified in behalf of the applicant and supported his claim.
The boards of special inquiry and review in this ease based their order of exclusion upon certain discrepancies in the testimony of the applicant and his brother relating to matters of such recent occurrence that the boards evidently thought it was reasonable to expect they should have been in substantial accord, but more particularly on the statement of the alleged father in 1913, although the applicant was then nearly two years old, that he had only one son, naming as his only son, Yee Shong Loong, who was admitted as his son in 1931.
The chief discrepancies in the testimony of the applicant and his alleged brother related to the arrangements of the sehoolhouse which they claimed to have attended for ten years or more, and- the period of time which had elapsed before the older brother left for this country after leaving school, when the young men were at least eighteen and nineteen years of age, and only a few years had elapsed since they loft school.
These and other discrepancies as to the ages of certain relatives and circumstances connected with their families alone might or might not have weighed heavily in the minds of the boards; but it is inconceivable that a fond father should state that he had but one son within two years after the birth of this applicant, with whom he says he knew that his wife was pregnant when he left China in 1913, and of whose birth and name he had already been notified by her. That the number of his children was not in issue at the time may have made it even stronger evidence that he was then telling the truth. The boards may have accepted his statement made at a time when he had no motive for telling anything but the truth, and which in the minds of the hoards may have outweighed the evidence of the admitted son and another witness made nearly twenty years later at the time of his admission, and about two years previous to the petitioner’s application, when a conspiracy to enable this applicant unlawfully to enter this country may already have been in contemplation. No explanation of the statement of the alleged father in 1913 is made, except the stereotyped one of “I don’t know why I said that;” or, “I don’t know why he said that.” While the father stated that he had received letters from time to time from his wife mentioning this applicant by name, no such letters were offered.
I do not think on this evidence the board of special inquiry or the hoard of review can he said to have acted so arbitrarily as to have abused their discretionary powers. The applicant was given a full hearing. It was an inadvertence, of course, that the District Court supported its order by so many cases which had been overruled.