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Baker Botts Reverses Unconstitutional Guilty Plea, Halting Deportation for Community Advocate

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WASHINGTON, D.C., December 20, 2021 – Today, Baker Botts L.L.P. is pleased to announce that its client, Lundy Khoy, who the firm represented pro bono, was granted a reversal of her guilty plea and full dismissal of a 2000 felony conviction that has threatened her deportation to Cambodia for the past 17 years. 

Today’s reversal ends a nightmare that began in 2000, when Lundy was a college freshman and got caught up in what for most citizens would have been a minor drug charge. But Lundy was not a citizen; she was a permanent resident who had legally come to the United States at age one with her parents and has lived here ever since.

Lundy’s mother, a native Cambodian who fled the Khmer Rouge genocide in that country, gave birth to her in a Thai refugee camp a year before they moved to the United States. They obtained green cards and eventually settled in Virginia where Lundy graduated from high school before attending George Mason University.

In 2000, after a night out as a college freshman, Lundy was arrested and charged with possession of drugs with the intent to distribute, a felony. Lundy’s attorney at the time advised her that she should plead guilty. She asked that attorney about whether doing so would interfere with her status as a green card holder, indicating that she wanted to apply in the future for U.S. citizenship.

Her then attorney told her that pleading guilty to the drug charge was “separate and distinct” from immigration laws and “would not impact” her immigration status. He told her that she would “be fine,” and did not need to worry about the drug case impacting her ability to remain in the United States.

This advice was wrong and would have life-altering consequences for Lundy and her family. But she would not discover her attorney’s errors until years later.

Based on her attorney’s advice, Lundy agreed to plead guilty. The Court accepted her guilty plea and sentenced her to five years in prison, but suspended all but three months, essentially time served.

In April of 2004, as Lundy neared the end of her probation, agents from Immigration and Customs Enforcement (“ICE”) arrested her at one of her regularly scheduled meetings with her probation officer. ICE commenced removal proceedings against Lundy based on her 2000 felony plea. For nine months she remained in ICE detention awaiting deportation to Cambodia—a country she has never seen or even visited.

Eventually, ICE released Lundy to await final approval from Cambodia necessary for deportation. Nearly 17 years passed, and she eventually moved to Washington State, got married, and had a son.

Lundy also became an advocate for civil rights and the immigrant community. She has worked and volunteered on behalf of Southeast Asian refugees and their families. She has spoken out in support of people in similar positions, as well as on the need for immigration reform, participating on Congressional panels, and conducting interviews.  She has authored op-eds in the New York Times, and been featured on CNN and on shows including Full Frontal with Samantha Bee.

In recognition of her extraordinary case, then-Governor of Virginia Terry McAuliffe granted Lundy a Simple Pardon in 2016. This had the effect of providing “official forgiveness” for her crime, but it did not expunge her criminal record.  Lundy remained deportable and could be sent to Cambodia at any time.

Baker Botts took on the case in 2020 and sought relief back in the Arlington Circuit Court using a narrow and rarely granted remedy: a petition for Coram Vobis. Coram Vobis is an ancient writ with origins in common law that in Virginia allows courts to correct clerical errors or errors of fact, provided the errors were not known at the time of the judgment and they would have prevented rendition of judgment had they been known.

Baker Botts argued, joined by the Commonwealth’s Attorney, and the Court today agreed, that in accepting Lundy’s guilty plea in 2000, the Court was required to find that she did so “knowingly and voluntarily”—that is, with a full appreciation of the consequences of pleading guilty. However, because Lundy relied on bad advice from her then attorney regarding the implications on her immigration status, the Court could not have found that her plea was knowing and voluntary—and that none of this was known to Lundy, her attorney, or the Court at the time.

“After living with the specter of deportation over her and her family for nearly 17 years, we are grateful that the Court has corrected this wrong. After exhausting all other potential forms of relief, we are excited that Lundy can finally move on knowing that her attorney’s bad advice from over twenty years ago won’t result in a life sentence of losing her family and this country that she calls home,” said Partner Sterling Marchand

The Baker Botts Team included Sterling Marchand, Andrew George, Rebecca Heath, and Bryon Becker in Washington.

With them on Lundy‘s legal Team were Whitney O’Byrne from Durie Tangri in Seattle, and her immigration lawyer Jay Stansell.

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.

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