dissenting:
I dissent.
The majority opinion provides a misleading description of the facts and creates bizarre new constitutional law. We had previously held, in a split decision, that an immigration judge must, as a matter of due process, diligently elicit relevant facts from a pro se asylum seeker facing deportation, such as asking the alien to provide narrative testimony that might explain away apparent credibility problems.1 Yet today, we hold that when the immigration judge did just that, by telling the prospective deportee that to win his case he was going to need his wife’s testimony, the judge denied the applicant due process. The majority opinion reaches that conclusion by offering a psychiatric diagnosis and prognosis of the wife that no physician has ever given, so far as the record shows. The wife never appeared, and her medical records have never been provided. Under today’s decision, not only does an immigration judge have to act as a lawyer and psychiatrist, but if he tells the petitioner that he must present more than the minimum required by law to prevail, even if it’s true, it’s a denial of due process. There just isn’t any point to an administrative law system that delegates decision-making to specialized administrative judges, if this is how we perform our review function.
The majority’s theory appears to be that the INS denied Agyeman due process of law because it imposed an impossible and unjustified requirement on him, that his wife appear in person in Arizona at the hearing when she was perhaps hospitalized in New Jersey or unable to travel to Arizona. This is wrong for several reasons:
(1) the testimony before the IJ established that Agyeman’s wife was in fact in Arizona, not New Jersey, at the time of the hearing;
(2) the record does not establish that the wife was hospitalized in New Jersey at the time of the hearing;
(3) the hearing was for two purposes, to give Agyeman a second chance to have his petition for adjustment of his status granted, and also to give him a chance to avoid deportation by showing that it would work a hardship on his wife, and it was entirely fair for the IJ to tell him he wasn’t going to grant relief unless he heard from Agyeman’s wife;
(4) the IJ gave Agyeman multiple continuances for several months to produce his wife, and Agyeman never advised the IJ of any difficulty in doing so arising from her mental condition or his finances, just from his being in jail; and
(5) even if his wife had come to court and testified, he couldn’t have gotten his adjustment of status, because he *888hadn’t produced the necessary medical certificate.
Facts
I lay out the hearings in considerable detail to show the very great extent to which the IJ went to try to help Agyeman avoid deportation. Agyeman was born in Ghana and grew up in England. Before coming to the United States he had been living in Brussels. He has a Master’s Degree from the London School of Economics. He testified that he had an importing business from which over the past four years he had made about $50,000 per year in profits on average. He had married an American citizen, Barbara Barrett Levy, who also had a post-graduate degree. Ms. Levy apparently developed a mental illness, bipolar disorder, which occasionally put her in the hospital for two or three months, but which was controlled by medication the rest of the time. No medical records or physicians’ reports have ever been provided to establish the exact nature or intensity of her disorder. Everything about bipolar disorder in the majority opinion is generic research done in an appellate judge’s chambers, totally without foundation in the record. All we have in the record is Agyeman’s lay testimony, and his contact with his wife seems to have been tenuous at best.
In 1991, after her marriage to Agyeman, Ms. Levy applied for an adjustment of her husband’s status to permanent resident, based on his being her spouse. His visa was approved on the basis of her application, and the couple was given a time for an interview for the adjustment of status, with a form notice saying, “IF YOUR APPLICATION IS BASED ON A MARRIAGE TO A U.S. CITIZEN OR LAWFUL PERMANENT RESIDENT BOTH SPOUSES MUST APPEAR.” However, in 1992, Agyeman and his wife failed to appear at an adjustment of status interview. The INS denied his application without prejudice to renewal, and Agye-man was ordered to depart from the United States. The decision wasn’t only based on failure to appear. It also referred to “a required medical examination report from an authorized physician” and said: “Having failed to present the required documentation at interview, your application is denied for lack of prosecution.” The notice ordered Agyeman to depart from the United States the following month. But he didn’t.
Agyeman next turned up before the INS in 1997. He had been arrested in February of that year on unrelated criminal charges in Nevada (passing a bad check, which Agyeman said was a contract dispute relating to his business), and the INS was notified and commenced deportation proceedings. On May 13, 1997, he appeared for a hearing. It was the third time Agyeman had appeared, having already obtained two continuances. At the May hearing, the IJ gave Agyeman additional time so that he could ask his wife to mail his passport from New Jersey, where she lived and where Agyeman said his passport was, and so that the INS could obtain additional documentation regarding Agyeman’s status, since he said he had had an approved visa.
At the next hearing, two weeks later, Agyeman said he’d written to his wife but had neither heard from her nor received the passport. The IJ gave Agyeman another continuance so that his wife could send the documents. The INS lawyer noted that the file showed that the 1992 adjustment of status was denied both because Agyeman’s medical report was not filed and also because “his spouse failed to attend the interview and she apparently is, there’s a letter in here from her mother saying that she’s mentally ill and was hos*889pitalized and there is some allegation of marriage fraud.” This is evidently why the majority opinion hypothesizes that she might have been hospitalized in New Jersey at the time of the hearing. That overlooks the five year gap between the initial hearing where Levy didn’t show up because she was hospitalized, and the hearing at issue, where Agyeman testified that ordinarily his wife’s disease was controlled by medication and did not require hospitalization.
The IJ sustained the charge of deporta-bility, but told Agyeman (who was pro se) that he could avoid actually getting deported in either of two ways: he could pursue the same adjustment of status that he had failed to prosecute five years before, when his wife didn’t appear, and he didn’t file the medical report; or, alternatively, if he could show that his deportation would cause extreme hardship to himself or his wife, or any children or parents legally present in the U.S. and had seven years of residence with no crimes of moral turpitude, he could apply for suspension of deportation. The IJ suggested that Agye-man fill out an adjustment of status application for his wife to get him in as her spouse and that he get the medical report. He said that at the next hearing, he would give Agyeman both an adjustment of status hearing and a hardship suspension hearing. But, the IJ told him, because Agyeman needed to show that she still wanted him in the country, “the petitioning relative must be present for me to ask questions of and the government can cross-examine too, as to the validity of the marriage and her willingness to basically support your application for residency here.”
Told that his wife should be present, Agyeman did not say she couldn’t be, did not say she was hospitalized (that had been five years ago), and did not ask that the hearing be in New Jersey or anywhere else. Instead he asked for a month to arrange for her to be present. The IJ set a date four weeks later, for June 24, just to file the papers, and said they would pick a day then for Agyeman’s wife to appear.
Yet another hearing was held July 28. Agyeman had the papers for the suspension of deportation, but not the money for the fee, so the judge asked the INS if it would waive the fee, and it did. Agyeman had not filed the required medical report for the adjustment of status' application, and his wife was not present, so the judge denied it without prejudice to renewing it when Agyeman had the necessary supporting evidence: Before proceeding with the suspension of deportation part of the hearing, he told Agyeman that if he didn’t qualify for the hardship suspension of deportation, he would give him another opportunity to seek á change of status on his wife’s application, and time to “talk to your wife on the phone and have her come down here and testify on your behalf.”
Agyeman didn’t ask for any other arrangement relating to his wife. He did' ask if he could have friends testify by telephone. The IJ said that “telephonic witnesses are allowed in some cases where the witness can establish an extreme hardship to coming out here to testify, but you need to get permission from me in advance.” This is the advice the majority says should have been given. It was. The IJ noted that he would have them go to the INS office closest to them, present identification, and testify on the record from there. He also stated that the general rule was that the INS objected, and it was not usually allowed. Agyeman did not ask for any arrangement for his wife to testify by telephone from New Jersey, even though he had just been told that it was possible but disfavored. Had Agye-man asked, the IJ could have asked about *890the wife’s condition, perhaps obtained some verification, and decided whether to allow it.
Then the IJ considered hardship. The judge referred to his notes of the previous hearing where his wife’s mental illness was mentioned, and asked whether she was confined to an institution. Agyeman said “occasionally she suffers a collapse when she’s, when she would be admitted to hospital for periods like two or three months,” but he indicated that “when she takes her medicine she’s okay.” Agyeman testified that he had only seen one episode of her illness while they lived in New Jersey, and “she normally lives on her own.” When they both lived in New Jersey, she did not see a doctor on a regular basis, and would just get her prescription renewed when her medication ran out. Asked if his wife was presently institutionalized, he said, “I don’t know.” There’s nothing here to justify the majority’s claim that the IJ denied Agyeman due process by not arranging for the wife to testify from New Jersey.
Asked where his. wife lived, Agyeman said, “I believe in New Jersey.” She hadn’t replied to his last two letters, and he had last talked to her six months before. He had been living in Carson City, Nevada, and his wife in New Jersey, for the last four years (since 1993). He said he preferred to run his business from Nevada because it was closer to Oakland, California, where his imports came into port. As to hardship, Agyeman merely testified, “I want to be reunited with my wife and she, it’s my only marriage and the only person I am really very close to.” However, when asked why he hadn’t written the date of his marriage on his application, he said “I don’t remember it exactly” but it was “in summer ... around 1990, 1990, maybe, yeah, thereabout.” Although he did know where his wife was born, when asked his wife’s date of birth, he said, “she’s about five years older than me. I think 53. I’m not really sure. I, I guess 53.” The IJ then asked if Agyeman could say anything else to justify claiming hardship to himself or anyone else if he was deported, Agyeman said “it would be extremely difficult for me to begin in, in a, in Ghana at this time.”
The IJ said that he would deny a hardship suspension, because nothing was shown except ordinary economic hardship,2 but he would give Agyeman another opportunity to apply for adjustment of status. He told him how to arrange for a medical examination and report from a doctor approved by the INS and explained “you need to contact and have available at the next hearing your spouse.” She needed to be present because he had “to determine whether there’s a bona fide marriage and whether she still wants you to comfort her.” Again, Agyeman didn’t ask to have his wife testify by phone, or to have the hearing or part of it moved to New Jersey. He did ask for release on bond, but the IJ did not reduce the $5,000 bond, although he said Agyeman could apply for a reduction and show new facts. The IJ set the next hearing for September 17, almost two months later, to give Agyeman plenty of time to arrange for the medical report and his wife’s presence, and said that even for the hardship suspension of deportation his adverse decision was not final. Agyeman then said he “might have to go for her” to get his wife there, because it would be hard to get her to fly to Arizona even if he got her on the phone. The judge said that he would “grant [Agyeman] continuances if [he was] working on something.”
*891Agyeman subsequently asked for another continuance, and got it, moving the hearing to November 5. At that hearing, more than eight months after his original detention, the IJ asked Agyeman if his wife was going to be present. Agyeman said, “She is in Phoenix,” and then presented a motion for reduction of his bond. The IJ indicated that he would give him a written decision on the bond reduction later. He then asked Agyeman about his wife’s location. Agyeman stated again that his wife was staying with some friends in Phoenix, and that she knew that the hearing would be “this week,” but that she was not present because he hadn’t been able to contact her again because of his detention. The IJ replied that Agyeman was given notice of the November 5 hearing on September 17, and that Agyeman was on notice that his wife needed to be present. The IJ then conducted the hearing without Ms. Levy. The IJ found that “failure to bring your spouse to testify today after as many continuances as you’ve been granted, constitutes a withdrawal or abandonment of your application for adjustment of status.” The IJ then granted Agyeman voluntary departure. Agyeman reserved his right to appeal.
Analysis
1. Due Process
There is no factual basis for the majority’s decision. The majority opinion says that “the IJ’s demand” that Ms. Levy travel to Arizona for Agyeman’s adjustment of status hearing, to get him a green card as her spouse, “was fundamentally unfair in the circumstances.”3 The reason it was so “fundamentally unfair” as to deny Agye-man due process of law, according to the majority opinion, is that “[a] documented serious illness may constitute good cause for a spouse’s absence at the interview.”4 Well, of course it would, but so what? Why even mention that in this case? There is no evidence whatsoever in the record that Ms. Levy was hospitalized at any time relevant to the 1997 hearing, that she was regularly or repeatedly hospitalized, or that her illness in any way actually prevented her from traveling to Arizona. The BIA fairly and accurately took into account the evidence in the record as to Agyeman’s wife’s illness: “We recognize that respondent’s wife suffers from some form of mental illness, which the respondent describes as bipolar.” The only evidence before the IJ was that, not only was she not hospitalized, but she had in fact traveled to Arizona.
The majority opinion’s assertion to the contrary presents a misleading characterization of the record. In his unsworn appeal brief to the BIA, which is not evidence and which was subsequent to his hearing, Agyeman said his wife had “found it unnecessary to travel from New Jersey” and that “her doctor has recommended against making the trip,” but in his sworn testimony before the IJ, he testified, “She is in Phoenix.” The majority opinion tries to muddy this clear declaration of fact in sworn testimony by quoting out of context Agyeman’s testimony that “she should have arrived here last week” as though he was saying he didn’t know if she was there. Agyeman testified, “She is in Phoenix,” and presented a motion, not for any accommodation for his wife, but for a bond reduction for himself. After speaking to the motion, the judge said, “You said she’s in Phoenix.” Agyeman testified, “Yeah,” and then made the remark the majority uses to try to create an ambiguity that isn’t there. Following “Yeah [she’s in *892Phoenix],” Agyeman testified, “She should have arrived here last week. She would (indiscernible) staying with my friend.... She must be in Phoenix since last week.” The uncertainty he testified to wasn’t about whether his wife had traveled to Phoenix, but when she had arrived, and he explained the point of this by bringing the discussion back to his request for reduced bond and explanation that his confinement made it hard to contact her.
Now it may be the case that, as Agye-man claimed in his brief to the BIA, that his wife “found it unnecessary to travel” and that “her doctor has recommended against making the trip.” Who knows? But he had told the IJ just the opposite, under oath. So the IJ had no reason to make his decision based on Agyeman’s subsequent, unsworn claim. Yet the majority deems it unconstitutional for the IJ not to have accommodated Agyeman’s wife based on this account that hadn’t even been made, and that contradicted what Agyeman testified to.
The IJ was helping Agyeman just the way Jacinto said he should, trying to help him present evidence that would help him win if was entitled to win. Agyeman had obvious credibility problems. An exhibit showed he’d been arrested several times, most recently for a crime of dishonesty, and his marriage gave some indication of being a sham. The majority says that had the IJ been a better lawyer for Agyeman, he would have told him that his wife could appear by phone, or maybe that he could get the hearing moved to New Jersey, but the IJ did tell him he could ask for leave to have witnesses testify by phone. As for New Jersey, since Agyeman didn’t ask for it, didn’t claim that his wife couldn’t travel, and testified that she was in Phoenix, it’s hard to see why the IJ should be required to have imagined that actually she was in New Jersey and couldn’t travel to Arizona because of illness.
The majority cites Jacinto5 for the proposition the majority articulates as the IJ’s “obligation to assist”6 Agyeman in determining what evidence was relevant. Actually, Jacinto held that the IJ should have “attempted to elicit more information,” because failure to do so left the applicant (an asylum seeker) with testimony that was not credible, but might have been had the IJ “fully developed the record.”7 We put judicial officers in a difficult position when we require them to act as lawyers for the applicants, not just as neutral arbiters. Today’s decision makes it impossible. The IJ in this case was doing just what we faulted the IJ in Jacinto for not doing. He was attempting to elicit more information that might have gotten Agyeman over the hump of a losing application.
The most captiously critical way to read the IJ’s remarks, which is the way the majority opinion reads them, is that he was making up law that wasn’t so and imposing it on Agyeman just to give him a hard, likely impossible, time. The fairer way to read the record is that the IJ was giving Agyeman every possible chance to avoid deportation, and helping him by telling him what would work. In this case, Agyeman’s own testimony had shed so much doubt on the validity of the marriage, that nothing short of an effort by Ms. Levy personally to keep her husband in America would have convinced the IJ that the marriage was bona'fide or that deportation would work a hardship on her. The INS lawyer had already suggested that the marriage Agyeman wanted to rely on was a sham, and there were reasons to suspect that. Among them: Agyeman hadn’t lived with his wife for four years, *893didn’t know when she was born or just when they were married, and hadn’t been in touch with her for six months. But he needed to show merely that he had married Ms. Levy, “intending to live with her as her husband.”8 That was possible, but it was going to be hard to sell without the wife’s testimony to corroborate it. Likewise, for hardship, the IJ had already concluded that he couldn’t give a hardship suspension based on the economic hardship Agyeman would face if deported to Ghana, so he needed Ms. Levy to say it would be a hardship for her if her husband was deported.
Not only was this not a due process violation, but there is simply nothing wrong at all with a judge trying to help a pro se applicant like Agyeman by telling him what evidence could win his otherwise losing case. Because Agyeman gave no indication that his wife could not travel, and indeed he testified that she was in Arizona, the IJ’s requirement was entirely reasonable. Colmenar v. INS9 allows reversal on due process grounds where “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”10 Mr. Agyeman had ample opportunity to present his case.
Finally, the majority opinion’s discussion of bipolar disorder is entirely misplaced. In order to derive the result it desires, the majority diagnoses and provides a prognosis and medical recommendation for a woman it has never examined. Even if it were appropriate for judges to diagnose patients for mental illness and provide medical recommendations regarding travel, which it obviously is not, there is nothing in the record to support the majority opinion’s assumptions about this particular woman’s condition. We have no medical records, just Agyeman’s unsworn statement in his subsequent brief to the BIA about what his wife’s physician supposedly said, which contradicts Agyeman’s sworn testimony to the IJ about whether his wife traveled. What’s more, if we’re going to accept as true whatever Agyeman says about his wife’s mental condition, even though he hasn’t even seen her for six months, why not accept his statement that she ordinarily required neither hospitalization nor even attention from physicians, just renewal of her regular medication?
2. Prejudice
Additionally, the majority errs because even if it were correct on the due process theory that Agyeman’s wife was institutionalized in New Jersey so it was fundamentally unfair to order that she appear in Arizona, Agyeman still could not get relief. He couldn’t get the adjustment of status, because he still hadn’t produced the medical report. It was required by law.11 Agyeman knew it was required, and he never presented it. And he couldn’t get the hardship suspension, because he hadn’t testified to any hardship to anyone, not even his wife, even when the IJ asked for more hardship testimony. All he had was the inadequate testimony that it would be hard for him to start over again in Ghana.
Conclusion
Because the IJ in this case did exactly what he was supposed to do, and because the majority opinion imposes excessive new burdens on immigration proceedings, I dissent.
. Jacinto v. INS, 208 F.3d 725, 734 (9th Cir.2000).
. The common results of deportation, such as a potentially lower standard of living and fewer job opportunities, are insufficient to prove extreme hardship. Perez v. INS, 96 F.3d 390, 392 (9th Cir.1996).
. Majority at 880.
. Majority at 881.
. 208 F.3d 725 (9th Cir.2000).
. 208 F.3d at 734.
. Majority at 884.
. United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir.1996).
. 210 F.3d 967 (9th Cir.2000).
. Id. at 971.
. CFR § 245.5.