*433June 8, 1914.
(On Re-hearing)
This case having been heard, a decision was filed on the 16th day of February, no brief having been filed by the respondent, the court having received the impression, in. some way, that the respondent did hot intend to file a brief. After the decision was filed, District Attorney McCam, for the respondent, expressed a desire to put in a brief and the court agreed to consider the same and make such supplementary decision as might be called for. On the 5th of June the brief of respondent was filed. I have carefully examined it and find no reason to modify the decision of February 16th.
[1] [2] The evidence of the marriage of the petitioner and Wong She, in whose behalf the petition for habeas corpus was filed, is convincing and should have been convincing to the immigration authorities, there being no opposing testimony, either as to the marriage or as to the fact that they lived together and held themselves out to their friends and acquaintances as man and wife. This continued for a considerable period, up to the time they left China for Hawaii. The petitioner was a citizen of the United States, he having been bom in Hawaii and having-spent his life there. To refuse recognition of his alleged wife and refuse her an opportunity to join her husband, thereby separating, husband and wife or compelling him to break up his home in Hawaii and return to China, would create a hardship which can only be regarded as a wrong to them, and is unjustified unless there had appeared in the case a preponderance of evidence against the marriage, or an element of unreliability in the evidence for it, which would have made it most difficult to accept the theory of the marriage. No such condition, appears. The weight of evidence is all the other way.
*434As to the women with whom petitioner had previously cohabited in Hawaii and who had borne him two children, the evidence is that they were not married and also that she had died some years before. No evidence appears in the case, either that they had married or that she was still living at the time of the alleged marriage of petitioner and Wong She. The evidence on record showing uncertainty in regard to her burial place is negligible, either to prove her dead or alive.
I still feel that the petitioner and Wong She did not receive at the hearing before the immigration authorities a fair trial, and affirm the previous decision overruling the demurrer.