(dissenting).

I. The Denial of Due Process and Need for Rehearing En Banc.

The proceeding before us is the consideration of a petition for rehearing. Instead, the majority opinion and decision treat it as a petition for reversal of our then existing decision without hearing and without r&ply. The majority’s decision is in gross violation of the principles of due process to which Ly Shew is entitled. It should be reviewed en banc.

We decided this case with a reversal ordering judgment to be rendered for Ly Shew, requiring the admission of his son and daughter to join their par *417 ents and their sister in the United States. Dulles filed a petition for rehearing. Our Rule 23 does not require such a petition to be served on the successful litigant nor for a brief or other opposition to it. All Ly Shew is required to do is to wait to see whether the petition is granted. If granted, Ly Shew for the first time is required to meet the contentions and authorities upon which the rehearing is granted.

The petition consists of several contentions neyer considered in the opinion in favor of Ly Shew. It relies upon over eighteen federal decisions, never cited in Dulles’ brief on appeal.

Upon these contentions and cases the majority opinion reverses our decision in favor of Ly Shew, without granting him any opportunity to reply to them. No clearer case of denial of due process is conceivable.

II. The Failure to Consider the Facts as in Mah Gong v. Brown, 9 Cir., 209 F.2d 4 -4-8, in View of the District Court’s Statement that Under the Usual Burden of Proof it is Required to Decide for Ly Shew.

Assuming, however, that a rehearing en banc is not granted, I further dissent from the opinion’s failure to consider the appeal under the principles established in our decision in Mar Gong v. Brownell, 9 Cir., 209 F.2d 448, 453 , where, as here, the opinion directed the lower court to make findings as to paternity “in the light of what is said in this opinion.”

In the Mar Gong case we gave an extended review of the evidence and the trial court’s disposition thereof, covering nearly five pages of the Federal Reporter. Such a review here is of greater importance since the district court’s opinion is based upon a too heavy burden of proof on Ly Shew, the court stating that if the ordinary burden of proof is applied it will be compelled to “issue a rubber stamp decree admitting the plaintiffs” in this case and many other cases. It is only by the wrongful application of the clear and convincing rule, held invalid in the Mar Gong case, that the court found against Ly Shew and his children, that finding being: “II. The persons who claim to be plaintiffs have failed to introduce evidence of sufficient clarity to satisfy or convince this Court that Ly Shew is the natural blood father of persons known as Ly Moon and Ly Sue Ning, or that the persons who appeared before this Court claiming to be plaintiffs Ly Moon and Ly Sue Ning are in truth and fact Ly Moon and Ly Sue Ning.” (Emphasis supplied.)

The evidence upon which the district court states that applying the ordinary rule of burden of proof it is required to “admit plaintiffs,” the boy and the girl, to citizenship to join their citizen sister in the United States amply supports the court’s conclusion. As in the Mar Gong case all of it was given through interpreters. It is as follows:

1. Ly Shew testified that appellants were his children. He said Ly Moon, the boy, was born while he was in China on a visit and that Ly Sue Ning, the girl, was being carried by his wife when he departed. Cancelled checks that he had sent to China for family support were offered but were excluded, I think erroneously, but not affecting the present decision.

2. Ly On testified that he was admitted bo the United States as a citizen and as the son of Ly Shew in 1947. He testified that he entered with another brother and his sister, Ly Shue Ngor. He testified that he lived with appellants and otherwise treated them as brother and sister.

3. In court appellants and Ly On simultaneously drew diagrams of the Chinese village where they lived. No conflict here appeared.

4. Ly Moon and Ly Sue Ning both testified they were Ly Shew’s children, clearly relevant in connection with the other testimony. Fulkerson v. Holmes, 117 U.S. 389, 397 , 6 S.Ct. 780 , 29 L.Ed. 915 .

5. Leong Yen Way, not a member of the family, was admitted to the United *418 States in 1949. At the time of the trial, he was serving as a soldier in the United States Army. He testified that he visited appellants’ family in China in 1948. He testified that he was given a package by them to bring to the father in the United States. He identified appellants as the same persons he had seen in China.

6. Ly Shue Ngor testified that she regarded Ly Shew as her father and Ly Moon and Ly Sue Ning as her brother and sister. She testified that when she left China in 1947, Ly Sue Ning was eleven and Ly Moon fifteen years of age. She said she helped rear the appellants, as an older sister would.

The government’s brief does not quarrel with the evidence adduced by appellant, except to the extent that it had attempted to cast doubt on Ly Shue Ngor’s credibility by raising doubts as to issues collateral to the issue of her statement of Ly Shew’s paternity, a matter not affecting the validity of the others arid her testimony. Mar Gong v. Brownell, 9 Cir., 209 F.2d 448, 451 .

Upon this evidence and the district judge’s statement that he is required to admit the children, we reversed and ordered the district court to enter “a judgment in their favor.” This we were required to do as what is “just under the circumstances”, 28 U.S.C. § 2106 , providing :

Such an order should have been given in the majority’s present decision. However, since it is not, further consideration should be given to the erroneous statement of the district court of the factors he states as controlling in consideration of the evidence.

As a suggestion of the likelihood of perjury of these Chinese witnesses 1 *the court points out: “A survey of the 716 cases here shows that 95% of the plaintiffs claim to have been born in Kwang Tung Province and 62% in the Toy Shan District of Kwang Tung Province. * * It fails to point out that Kwang Tung Province is the only one of the 18 provinces of the great area of China which surrounds the British city, Hong Kong, into which the nearby children of American parents could easily enter, thus freeing themselves from Bolshevik China. None of the other seventeen provinces has such a foreign city on its borders.

Further, the district court stresses, as indicating the likelihood of perjury, the fact that [ 110 F.Supp. 56 ]: “An examination of 354 of the 716 complaints shows 367 of the plaintiffs to be males and 39 to be female.” It is difficult to see how this is applicable to the instant case where of the two persons for whom declaration of citizenship is sought one is a girl and the record shows that another girl, her sister, had been previously admitted as such a citizen and is now living with her father, Ly Shew.

Undoubtedly there has been much perjury in cases of Chinese seeking to prove their nationality. However, there is another factor regarding the large number of males their parents seek to bring to the United States, which seems not to have been considered in the reported cases. This is the high status of the son in the centuries’ established social relations of the Chinese 2 and the low *419 status there of the female child, 3 — this entirely apart from the much higher earning capacity of the male child. That American fathers of Chinese-born children prefer to leave their daughters in China is no evidence that the testimony concerning the birth of their sons is perjured.

Those who ironically comment on the power of male procreation by American-born Chinamen mating with their wives in China seem ignorant of the above facts.

III. The Wrongful Invocation of a Religious Doctrine “in Every Sense” affecting the Decision.

Finally, as one of its reasons for deciding against Ly Shew’s paternity of this boy and this girl, the court states: “* * * In every sense, so far as I am concerned, this is God’s Country.” (Emphasis supplied.)

One wonders whether the omniscient and omnipotent Creator of the Universe, the God of the Christo-IIebraic religion of the majority of American people, has given their country such an exceptional and apparently exclusive position, as distinguished, say, from Great Britain, from which the laws controlling our democracy are derived; or whether China is no longer one of God’s countries, where the “golden rule” was stated by Confucius five hundred years before the birth of Christ.

“In every sense” a judge’s religious beliefs should not consciously affect his attitude towards his witnesses or his interpretation of the law.

The district judge is very able and it is regrettable that the above introduction of religion in this case cannot be treated as a casual irrelevancy, instead of applying “in every sense,” that is, not only to the burden of proof but with its effect on the minds of parties and witnesses — say one shown to be an agnostic or an atheist or a humanist, the latter believing in the brotherhood of man only and not in a god. The Supreme Court’s refusal of certiorari on October 14, 1954, made final the decision of the Supreme Court of New Jersey in Tudor v. Board of Education, 14 N.J. 31 , 100 A.2d 857, 868 . There Chief Justice Vanderbilt’s opinion held that the distribution *420 of the King James Bible in the public schools violated the First Amendment made applicable to the States by the Fourteenth. A part of the testimony quoted in the opinion to support the decision is “ ‘and, the people who don’t accept any religion would feel that the school is actually trying to teach the religion through this means.’ ” (Emphasis supplied.)

Finally, all these cases of the admission of Orientals should be governed by what this court has repeatedly stated in Chinese citizenship cases, that the “right to citizenship is a priceless thing” to the person seeking to establish it. Wong Wing Foo v. McGrath, 9 Cir., 196 F.2d 120, 122 , and the statement by the Supreme Court in another Chinese citizenship case, Kwock Jan Fat v. White, 253 U.S. 454, 464 , 40 S.Ct. 566, 570 , 64 L.Ed. 1010 , that “* * * It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.”

The courts of this circuit should not find themselves subject to the criticism of having such an anti-Oriental attitude as we made in our opinion on General DeWitt’s deportation and imprisonment of some 70,000 American citizens of Japanese descent in Acheson v. Mura-kami, 9 Cir., 176 F.2d 953 .

The petition for rehearing should have been denied and our judgment in favor of Ly Shew should have remained undisturbed.

On Petition for Rehearing and Petition for Rehearing in Banc.

Feb. 4, 1955.

Before DENMAN, Chief Judge, and MATHEWS and BONE, Circuit Judges.

Ly Shew filed on January 28, 1955, a document which is, in effect, a petition for rehearing and a petition for rehearing in banc. The petition for rehearing is denied.

Under our Rule 23, having denied the petition for rehearing, we are not required to consider the petition for rehearing in banc. The latter petition is therefore ordered dismissed.

. This court has stated in reversing in Lau Hu Yuen v. United States, 85 F.2d 327, 330 , that:

. LaTourette, “The Chinese” (1946) 678: “Closely associated with the family sys *419 tem, and possibly as one of its corollaries, have been the relations between men and women and the position of women. The ceremonies in honor of ancestors have constituted a cornerstone of the Chinese family. Male progeny has been necessary if these were to he continued. For this reason boys have been regarded as more valuable than girls. To the high esteem for men other factors have contributed. From the economic standpoint boys have been preferable. Remaining in the family as they do, they are producers who throughout their working lives aid its prosperity. On the other hand, after marriage a girl is lost to the family which has been to the expense of rearing her. The centuries-old doctrine of yin and yang has made for the higher status of men, because the yang, associated with good fortune and all that is desirable, has been identified with the male, and the yin the element of darkness and evil, is female. * * * ” (Emphasis supplied.)

Encyclopedia Britanniea, 14th Ed., Yol. 5, p. 524:

. Encyclopedia Britannica, 14 Ed., Vol. 5, p. 516:

LaTourotte, “The Chinese” (1946) 674: