For almost five years, Jose Antonio Franco-Gonzalez was held in a federal immigration detention facility, seemingly forgotten. Diagnosed with mental retardation, he doesn’t know his own age or how to tell time. But despite having the cognitive abilities of a 2-year old, he was left to defend himself in deportation proceedings.

This week, that all changed. In the first fundamental expansion of the right to counsel in 30 years, immigrant detainees facing removal who are mentally incompetent to represent themselves will be entitled to legal assistance at the government’s expense.

The change is the result of back-to-back events. On April 22, the departments of Justice and Homeland Security announced they had adopted a new policy giving mentally disabled immigrants the right to free legal representation. The next day, a federal judge in California reached the same conclusion in a class action brought by the American Civil Liberties Union, Sullivan & Cromwell, Public Counsel and the Northwest Immigrant Rights Project.

The class members "seek only the ability to meaningfully participate in the immigration court process," Judge Dolly Gee of U.S. District Court for the Central District of California wrote in her April 23 order. "Plaintiffs’ ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation is the only means by which they may invoke those rights."

About 34,000 immigrants each day are held in federal detention facilities pending removal proceedings, usually because they have criminal records or are deemed a flight risk. The government estimates that more than 1,000 of them suffer mental disabilities of some kind, according to the American Civil Liberties Union.

"These are by far the most vulnerable people," said Sullivan & Cromwell partner Michael Steinberg, who along with firm lawyers Asel Aliyasova, Alexa Lawson-Remer, Michael Murtagh and Antonia Stamenova-Dancheva spent hundreds of hours working on the case. "We are so pleased that, after three years of hard-pressed litigation, we have achieved a milestone of this significance."

Until now, there’s been no right to court-appointed counsel in any immigration cases, although people are allowed to hire private lawyers if they can afford them.

The plaintiffs argued that immigrants who were not competent to represent themselves by reason of a "serious mental disorder or defect" were entitled to free legal assistance under Section 504 of the Rehabilitation Act. The act, which only applies to federally funded organizations, protects individuals from discrimination based on disabilities.

The government, represented by lead counsel Samuel Go, a lawyer in the Justice Department’s Office of Immigration Litigation, conceded that the four class members including Franco-Gonzalez had mental disabilities. The key point of contention was whether the immigrants were "denied the benefit or services solely by reason" of their disability.

In court papers filed before the new policy announcement, the government argued the immigrants weren’t denied anything, since no one was stopping them from participating in their removal proceedings.

However, Gee, appointed to the bench in 2009 by President Obama, ruled that wasn’t good enough. Rather, she found that it’s "sufficient that Plaintiffs are unable to meaningfully access the benefit offered — in this case, full participation in their removal and detention proceedings — because of their disability."

For example, another class member suffered from schizophrenia and experienced hallucinations and delusions, such as believing that his body was absorbing a light that was killing him.

Neither did the judge buy the argument by government lawyers that providing free legal representation would mean that mentally incompetent immigrants would actually be better off than those who are not disabled. Last year, there were 289,934 deportation cases, according to DOJ. Of those, 126,259 immigrants – about 44 percent – represented themselves.

"The opportunity to ‘examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government’ is available to all individuals in immigration proceedings, but is beyond Plaintiffs’ reach as a result of their mental incompetency," Gee wrote. "The provision of a Qualified Representative is merely the means by which Plaintiffs may exercise the same benefits as other non-disabled individuals, and not the benefit itself."

The judge rejected the contention that legal representation for all mentally incompetent immigrants held in detention went beyond a "reasonable accommodation" under the law, and instead amounted to a "fundamental alteration" of the immigration court system.

Gee wrote that she was "wary of issuing an unfunded mandate requiring Government-paid counsel for all mentally incompetent class members." But she noted that counsel could be pro bono, or that assistance could come from law students or "accredited representatives" from nonprofit religious or social service organizations.

Lauren Alder Reid, counsel for legislative and public affairs in DOJ’s Executive Office for Immigration Review, said the government will use the same criteria in fulfilling its April 22 pledge to provide a "qualified representative" to detainees deemed mentally incompetent. Immigration judges will make these determinations based on medical records or independent evaluations.

In addition, legal representation will be available to all such detainees, not just those who are indigent, she said. She confirmed that the representatives will be paid, but had no estimate of the cost to taxpayers.

According to Alder Reid, the policy change was not a pre-emptive response to the court decision. In fact, the government’s new policy goes further, since the ruling applies only in Arizona, California and Washington.

The "issuance of this policy was motivated by our desire to make this change nationwide," she said. "In part, we recognized that the protection this policy provides will help immigration judges more efficiently and effectively carry out their adjudicatory duties."

However, free legal representation will only be available to those being held in detention centers. To ACLU lawyer Carmnen Iguina, there’s "no real rationale for limiting representation only to people in detention."

Still, she sees the decision as a potential toe-hold for further expansion. "It’s the first ruling to recognize the right [to counsel] for any group of immigrants," she said. "It’s truly a historic, landmark ruling."

Contact Jenna Greene at